Kyrkos and Malkin
[2020] FamCA 649
•10 August 2020
FAMILY COURT OF AUSTRALIA
| KYRKOS & MALKIN | [2020] FamCA 649 |
| FAMILY LAW – PARENTING – PRACTICE AND PROCEDURE – Where the Independent Children’s Lawyer has made an Application for the children to attend therapeutic counselling with a clinical psychologists and for that counselling to be non-reportable and confidential – Where the mother wholly supports the Independent Children’s Lawyer’s Application – Where the father agrees to the children attending counselling, however, opposes the Application to the extent that the counselling be non-reportable – Where the father contends that the parties and the Court should have access to the clinical notes taken by the psychologist and that the psychologist be available for cross-examination in respect to her treatment and recommendations for the children – Where the Application is made in circumstances where both parties acknowledged the children witnessed a family violence incident – Where the single expert report available to the parties notes that the children have expressed concern that what they say to a third party may be reported back to the father – Consideration given to the Court’s obligation to have regard to the welfare of the children – Consideration given to the principles that the Court must have regard to in exercising its powers in child-related proceedings – Orders made in accordance with those proposed by the Independent Children’s Lawyer. |
| Family Law Act 1975 (Cth) ss 43, 69ZN, div 12A Family Court Rules 2004 (Cth) pt 15.5, r 15.32 Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) |
| Crawford & Sisinis and Anor [2014] FamCA 912 Kinsella v Kinsella 696 A.2d 556, (NJ, 1997) Reimann & Reimann [2017] FamCA 318 |
| APPLICANT: | Ms Kyrkos |
| RESPONDENT: | Mr Malkin |
| INDEPENDENT CHILDREN’S LAWYER: | Claremont Legal |
| FILE NUMBER: | SYC | 8562 | of | 2017 |
| DATE DELIVERED: | 10 August 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland DCJ |
| HEARING DATE: | 28 July 2020 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Ms Nenkes of Pearson Emerson Family Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Mr Piringji of Argus Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Fermanis |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Claremont Legal |
Orders
THE COURT NOTES THAT:
A.Ms B, Clinical Psychologist, of the D Services has been engaged for the purpose of providing therapeutic assistance to Z born … 2019 and W born in 2011 (“the children”).
B.Counselling of the children by Ms B is to be confidential and Ms B will not be required to give evidence, or produce any documents requested under subpoena, in these proceedings.
THE COURT ORDERS THAT:
Leave is granted to the Independent Children’s Lawyer to provide to Ms B:
(a)A copy of the expert report prepared by Dr C dated 12 September 2018; and
(b)A copy of these Orders.
Within seven (7) days of the date of these Orders, the Independent Children’s Lawyer shall contact Ms B and request that she speak with the Principal, the Classroom Teacher for each of the children and the school counsellor at D School for the purpose of assisting her to provide counselling to the children.
Counselling of the children by Ms B be confidential.
The parties are granted liberty, in the event that any party wishes to make an Application for costs, to file brief written submissions, within seven (7) days of the date of these Orders, of no more than two (2) pages.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kyrkos & Malkin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 8562 of 2017
| Ms Kyrkos |
Applicant
And
| Mr Malkin |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
This matter concerns an Application by the Independent Children’s Lawyer, supported by Ms Kyrkos (“the mother”), for orders to be made for the therapeutic counselling that is being provided to Z born in 2019 and W born in 2011 (collectively, “the children”) to be on a non-reportable and confidential basis. Mr Malkin (“the father”) is in agreement, with the Independent Children’s Lawyer, that Ms B be engaged for the purpose of providing therapeutic assistance to the children, however, opposes that Application to the extent that the counselling would be non-reportable.
The Application is made in circumstances where the children have not spent time with the father for approximately two and a half (2 ½) years and the mother contends that the children are unwilling to do so in the future. The mother contends that the children’s attitude is a result of their exposure to family violence perpetrated during the course of the parties’ relationship. Other than in respect to one incident, the father denies that family violence has occurred to the extent alleged by the mother and he contends that the children’s attitude, in respect to not spending time with him, has been inappropriately influenced by the mother.
The matter has been set down for hearing for five (5) days commencing 16 November 2020. The parties are in receipt of a report from Dr C, a single expert appointed pursuant to pt 15.5 of the Family Law Rules 2004 (“the Rules”), dated 12 September 2018. The father contends that he will be disadvantaged in the conduct of the litigation unless he is able to access clinical notes taken by the children’s therapist and, further, that he is able to cross-examine the therapist on treatment that she has provided to the children and in respect to her recommendations. Both the Independent Children’s Lawyer and the mother contend that the children require therapeutic assistance from Ms B and that ordering the therapy to be reportable would impact upon its efficacy and cause distress to the children.
Competing applications
Orders proposed by the Independent Children’s Lawyer
The Independent Children’s Lawyer seeks that orders be made in accordance with the Minute of Order provided to the Court, by email dated 27 July 2020, as set out in the following terms:
THE COURT NOTES THAT
1) Ms B, Clinical Psychologist, of the D Services has been engaged for the purposes of providing therapeutic assistance to Z born in 2019 and W born in 2011 (“The children”).
2) That counselling of the children by Ms B is to be confidential and Ms B will not be required to give evidence, or produce any documents requested under subpoena, in these proceedings.
IT IS ORDERED
1) Leave is granted to the Independent Children’s Lawyer to provide to Ms B;
a) A copy of the expert report prepared by Dr C dated 12 September 2018;
b) A copy of these orders
2) Within 7 days of the date of these Orders the Independent Children’s Lawyer shall contact Ms B and request that she speak with the Principal, the Classroom Teacher for each of the children and the school counsellor at D School for the purposes of assisting her to provide counselling to the children.
3) That counselling of the children by Ms B be confidential.
Orders proposed by the mother
As noted, the mother supports and consents to the orders proposed by the Independent Children’s Lawyer.
Orders proposed by the father
The father opposes the orders sought by the Independent Children’s Lawyer and proposes, in their place, orders be made in accordance with the Minute of Order provided to the Court, by email dated 27 July 2020, as set out in the following terms:
THE COURT NOTES THAT
1) Ms B, Clinical Psychologist, of the D Services has been engaged for the purposes of providing therapeutic assistance to Z born in 2019 and W born in 2011 (“The children”).
2) That Ms B has requested that counselling of the children by her is to be confidential and that she not be required to give evidence, or produce any documents requested under subpoena, in these proceedings.
IT IS ORDERED
1) Leave is granted to the Independent Children’s Lawyer to provide to Ms B;
a) A copy of the expert report prepared by Dr C dated 12 September 2018;
b) A copy of these orders
2) Within 7 days of the date of these Orders the Independent Children’s Lawyer shall contact Ms B and request that she speak with the Principal, the Classroom Teacher for each of the children and the school counsellor at D School for the purposes of assisting her to provide counselling to the children.
3) That counselling of the children by Ms B not be confidential and that Ms B, if called by any of the parties to this action, will be required to give evidence, or produce documents requested under subpoena, in these proceedings.
4) That if order 3) above is not acceptable to Ms B, then an alternative Clinical Psychologist who is willing to assist the Court and be examined if called by any of the parties, be engaged in substitution of or in addition to Ms B for the purposes of providing therapeutic assistance to the children and that the name of Ms B be replaced in orders 1), 2) and 3) above with the name of the alternative Clinical Psychologist so engaged.
5) That the parties and lawyers on the record attend a Conciliation Conference with a Registrar at 10.00 am on … 2020 and that the parties are to share equally in the Conciliation Conference fee.
6) Each party is restrained from discussing these proceedings with the children.
I was not, in these proceedings, addressed in respect to orders (5) and (6) as proposed by the father.
Consent position
The parties are in agreement that:
a)Ms B, Clinical Psychologist, of the D Services, has been engaged for the purpose of providing therapeutic assistance to the children; and
b)Ms B has requested that counselling of the children by her is to be confidential and that she not be required to give evidence, or produce any documents requested under subpoena, in these proceedings.
Background
In 1980, the father was born. He is currently aged 39 years.
In 1982, the mother was born. She is currently aged 38 years.
In 2007, the parties married.
In 2009, Z, the parties’ child, was born. She is currently aged 10 years.
In 2011, W, the parties’ child, was born. She is currently aged nine (9) years.
In 2015, as contended by the mother, the parties separated and continued to reside under the same roof.
On 10 December 2017, the parties separated on a final basis.
The mother alleges that, on 10 December 2017, an act of violence was perpetrated by the father that caused the final separation between the parties. The mother further alleges that the children were exposed to family violence perpetrated by the father during the course of the parties’ relationship and that, as a result, the children do not wish to spend any time with the father.
At paragraph 28 in his Report dated 12 September 2018, Dr C notes that the father acknowledged that the children had witnessed the final violent incident which occurred on 10 December 2017. The father, however, said:
I don’t doubt that they were scared by the incident but when the incident happened I was on my balcony when the girls were taken away they were screaming “I want my daddy”
Dr C further notes, in his report, that the mother reported to him that the children do not wish to have any contact with their father. Dr C, at paragraph 4 of his Report, records the mother stating the following:
She understood that the girls did not wish to have any contact with the paternal extended family given their fear and distress. The children did not refer to their father as ‘Dad’ or ‘Father’. Z would refer to him as “monster”, “idiot” or, if necessary, spell out the word ‘Dad’. W refused to speak about him. Both girls were distressed by the Court Expert assessment, given their previous “bad experience” at the Family Court as the counsellor placed them in child care without her. The girls feared that their father would find out what they had to say and would hurt them. Z would “ziplock her mouth and throw away the key”.
The mother’s account is corroborated to the extent that, at paragraph 52 and 53 of his Report, Dr C describes that the children “immediately became agitated” when he entered the room and, further, “W immediately became distressed, refusing to come into the interview room with her mother”.
At paragraph 137 of his Report, Dr C noted that “the children were not seen together with their father due to their overt distress and refusal to participate in such an interaction”.
At paragraph 147 of his Report, Dr C stated:
The children had been emotionally distressed and traumatised by their exposure to parental conflict and the violent altercation between the parents on 10 December 2017. This had reportedly precipitated regression; with bedwetting, sleep disturbance, insecurity and avoidance of their father and paternal extended family. Their overt distress was evident during this assessment.
At paragraph 149 of his Report, Dr C noted, in respect to the incident which occurred on 10 December 2017, that:
This traumatising incident had had a profound impact on the girls’ emotional security and trust in their relationship with their father.
The father denies that the children’s unwillingness to spend time with him is a result of their having been exposed to family violence which occurred during the course of the parties’ relationship and, instead, contends that the children’s unwillingness to spend time with him is a result of the mother’s interactions with them.
The parties’ respective contentions will, obviously, be considered in detail at the final hearing of this matter. However, the statement of the mother to Dr C that the children have a concern “that their father would find out what they had to say” is consistent with the observations made by Dr C to which I have referred above.
As noted, the father acknowledges that the children require therapeutic psychological counselling. In the circumstances where I accept that the children have expressed concern that what they say to a third party may be reported to their father, it would be contrary to their interests to require that therapy to be reportable.
The Relevant Law and Consideration
The importance of confidentiality to an effective therapeutic relationship has been judicially recognised. In Kinsella v Kinsella 696 A.2d 556, (NJ, 1997) (“Kinsella”) at [584] the Supreme Court of New Jersey stated:
The psychologist-patient privilege further serves to protect an individual's privacy interest in communications that will frequently be even more personal, potentially embarrassing, and more often readily misconstrued than those between attorney and client. Made public and taken out of context, the disclosure of notes from therapy sessions could have devastating personal consequences for the patient and his or her family, … Especially in the context of matrimonial litigation, the value of the therapist-patient relationship and of the patient's privacy is intertwined with one of the most important concerns of the courts – the safety and well-being of children and families. Therefore, only in the most compelling circumstances should the courts permit the privilege to be pierced.
While there is no similar recognised public interest privilege in Australia, the insightful observations made in Kinsella (supra), regarding the potential benefit of confidential psychological counselling, in the context of family law proceedings are pertinent to these proceedings.
Also of relevance is the statutory obligation of the Court to have regard to the welfare of children at all stages of litigation. Drawing upon comments that I made in Reimann & Reimann [2017] FamCA 318 at [107]-[113], I note that s 43 of the Act provides that, in exercising jurisdiction under the Act, the Court is required to consider “the need to protect the rights of children and to promote their welfare”.
Further, s 69ZN of the Act sets out the principles that the Court must apply in exercising its powers in child-related proceedings. In my view, the most relevant principle to apply in respect to these proceedings is principle 1 which relevantly provides that:
…the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Division 12A is not empowering. Rather, it sets out the principles that the Court is required to apply in exercising jurisdiction in respect to parenting matters. In my view, those principles apply in the context of interim proceedings as much as at final hearing.
This is made clear in the following extract from the Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (“Shared Parental Responsibility Bill”) which provides:
The amendments in Schedule 3 provide for a less adversarial approach to be adopted in all child-related proceedings under the Act. This approach relies on active management by judicial officers of matters and ensures that proceedings are managed in a way that considers the impact of the proceedings themselves (not just the outcome of the proceedings) on the child. [Emphasis added]
The Explanatory Memorandum to the Shared Parental Responsibility Bill further explains that:
The first principle…. is intended to ensure that the proceedings are focussed on the child. This means that the court must consider the child’s needs and the impact that the conduct of the proceedings may have on him/her. In particular the court must consider the likely stress on the child of the conflict between the parents that is created by the proceedings and seek to minimise this. The court may, for example, consider making orders that the child attend family counselling to assist the child to understand the court’s orders or the trial process.
In other words, it is envisaged that the purpose of counselling is to assist the child to cope with the emotionally charged situation that they confront, rather than as an adjunct to the parties’ and the Court’s collation of evidentiary material for the final hearing.
In that context, it would, in my view, be perverse to adopt a construction of s 69ZN of the Act that results in an outcome where the Court, in making final parenting orders, is required to consider the potential impact of those orders on a child’s physical and psychological well-being but the Court is not required to do so in respect to interim proceedings.
There is no basis to restrict the clear and unambiguous wording of s 69ZN of the Act only to circumstances where the Court takes steps to address the adverse impact that orders (including interim orders) may have on a child. It is equally important for the Court to consider that the operation of an order, including an order made in interim proceedings, may be causative of an adverse impact on the child such as, in this case, requiring the children to attend reportable counselling in circumstances where they have expressed concern that their father might be advised of what they say in that counselling.
Having regard to the comments made by Dr C in his Report, I am satisfied that requiring the parties to ensure that the children attend counselling, in circumstances where it is not confidential, would have such an adverse impact on the children. Specifically, I am satisfied that it would exacerbate the stress and anxiety which both parties recognise the children are suffering.
In my view, the correct approach to the construction of div 12A of the Act is that adumbrated by Berman J in Crawford & Sisinis and Anor [2014] FamCA 912, where his Honour said at [60]:
Section 69ZN sets out the principles for conducting child related proceedings and it is clear from the first principle as set out in s 69ZN (3) that the Court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
While his Honour focused on the application of s 69ZN(3) of the Act, his reasoning is also, in my view, entirely consistent with the application of s 43 of the Act.
Conclusion
I am satisfied that the making of orders as sought by the father for the therapeutic process, which both parties acknowledge the children require, to be an adjunct to the evidentiary processes of this litigation would, for the reasons which I have set out, be contrary to the interests of the children.
In circumstances where both parties acknowledge that the children require therapeutic counselling, I will therefore make orders as sought by the Independent Children’s Lawyer and I will dismiss the father’s Application for orders that would require that counselling to be reportable.
As noted at the hearing of this matter on 28 July 2020, I will grant liberty to any party wishing to seek costs in respect to this Application to file brief written submissions of no more than two (2) pages in length.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 10 August 2020.
Associate:
Date: 10 August 2020
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