Leicester and Blackett & Anor - [2016] FamCA 228

FAMILY COURT OF AUSTRALIA

LEICESTER & BLACKETT AND ANOR

[2016] FamCA 228

FAMILY LAW – PRACTICE AND PROCEDURE – Principal Registrar – Review of decision – Father’s application – de novo hearing – Whether orders suspending contact with the father should be discharged – Whether the child’s time with the father should be increased – Whether the child should attend a different high school – Whether the child should continue to attend upon a psychologist – Where there is highly disputed evidence as to the father’s conduct towards the maternal grandparents – Where the child has expressed his own views on the matters during counselling.

FAMILY LAW – JURISDICTION – Whether s 65K of the Family Law Act 1975 (Cth) (“FLA”) affects the standing of third parties to bring an application for parenting orders – Where one of the parents has died – Whether the High Court’s decision in Vitzdamm-Jones supports the father’s contention that s 64(1) of the FLA (as it then was) is an invalid exercise of Commonwealth powers pursuant to s 51(xxi) of the Constitution – Where the maternal grandparents filed an application for parenting orders pursuant to ss 64B, 64C and 65C of the FLA – Where there is no existing parenting order – Whether the father’s argument should be summarily dismissed.

FAMILY LAW – EVIDENCE - Admissibility – Whether reports by the child’s psychologist are inadmissible pursuant to s 102A of the FLA – Whether the evidence is resulting from the examination of the child – Whether the evidence relates to the “abuse of, or risk of abuse of” the child – Whether the child was examined without leave of the Court – Whether the Court should exercise its discretion by admitting the evidence.

Australian Constitution ss 51(xxi) & (xxxvii)
Commonwealth Powers (Family Law-Children) Act 1990 (QLD)
Evidence Act 1995 (Cth) s 135
Family Law Act 1975 (Cth) ss 4(1), 61B, 61C, 61D, 64B, 64C, 65C, 65DAC, 65DAE, 65K, 102A
Judiciary Act 1903 (Cth) s 78B

Vitzdamm-Jones v Vitzdamm-Jones (1981) 148 CLR 383

APPLICANT:

Mr Leicester

FIRST RESPONDENT:

Ms Blackett

SECOND RESPONDENT:

Mr Blackett

INDEPENDENT CHILDREN’S LAWYER:

Kyle Terrance

FILE NUMBER:

BRC

6033

2014

DATE DELIVERED:

11 April 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

4 April 2016

REPRESENTATION

THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENTS:

Ms Pendergast

SOLICITOR FOR THE RESPONDENTS:

Munro Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Terrance

Legal Aid Queensland

Orders

That paragraph 4 of the parenting order made by Principal Registrar Filippello of this Court on 28 January 2016 is hereby discharged.
That until further order, notwithstanding the equal shared parental responsibility order made by Judge Lapthorn of the FCC on 18 July 2014:
(a)the maternal grandparents shall continue to be able to take the child, B born … 2004 (“the child”) to attend upon Mr C, psychologist and family counsellor, for therapeutic counselling, particularly in respect of, but not limited to, emotional issues the child continues to experience…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FamCA 228
Decision Date: 11 April 2016

CaseChat Overview and Summary

This matter concerned an application by the father for a review of decisions made by the Principal Registrar concerning parenting orders for the child, B. The dispute involved the discharge of orders suspending contact with the father, an increase in the child's time with the father, the child's attendance at a different high school, and the continuation of psychological counselling. Highly disputed evidence existed regarding the father's conduct towards the maternal grandparents, and the child had expressed his views during counselling. The maternal grandparents had also filed an application for parenting orders.

The court was required to determine several legal issues. These included whether the father's application for a de novo hearing was appropriate, the standing of the maternal grandparents to bring an application for parenting orders given the death of one parent and the absence of existing orders, and the admissibility of reports from the child's psychologist under section 102A of the *Family Law Act 1975* (Cth). The court also considered whether the father's argument regarding the constitutional validity of a previous section of the Act, referencing the High Court's decision in *Vitzdamm-Jones*, should be summarily dismissed.

Forrest J reasoned that the Principal Registrar's decision to suspend contact was appropriate given the evidence of the father's conduct towards the maternal grandparents and the child's expressed views. The court found that the maternal grandparents had standing to apply for parenting orders. Regarding the admissibility of the psychologist's reports, the court exercised its discretion to admit the evidence, finding it relevant and not falling within the exclusionary provisions of section 102A. The court ultimately discharged the order suspending contact, but maintained the child's attendance with the psychologist, with the psychologist having sole discretion over adult involvement in the counselling process.

The court ordered that paragraph 4 of the Principal Registrar's parenting order be discharged. It further ordered that, notwithstanding previous equal shared parental responsibility orders, the maternal grandparents could continue to take the child to therapeutic counselling with Mr C, who would solely determine the involvement of other adults in the process. All other outstanding interim applications were dismissed.

Orders

Orders of the court

That paragraph 4 of the parenting order made by Principal Registrar Filippello of this Court on 28 January 2016 is hereby discharged.

That until further order, notwithstanding the equal shared parental responsibility order made by Judge Lapthorn of the FCC on 18 July 2014:

(a) the maternal grandparents shall continue to be able to take the child, B born … 2004 (“the child”) to attend upon Mr C, psychologist and family counsellor, for therapeutic counselling, particularly in respect of, but not limited to, emotional issues the child continues to experience following the loss of his mother and the ongoing family conflict between his maternal family and his father, as and when recommended by Mr C and for as long as Mr C recommends that it continue; and

(b) the said Mr C shall solely determine whether or not any of the adults in the child’s life, including his sisters, his maternal grandparents and his father, are to be invited to be engaged with and involved in that counselling process or even to sit in on any of the counselling sessions, and it is for Mr C to determine the level of any face to face, written or verbal communication that he wishes to engage in with any of those adults in respect to any aspect of the counselling process.

That all other outstanding interim applications are dismissed.

That the Independent Children's Lawyer shall be at liberty to forthwith provide a copy of these orders and reasons for judgment to the said Mr C and she shall also be at liberty to provide a copy of them to Mr D, if and when she engages him to do an updated family report in the proceedings.

That pursuant to s 65DA(2) and 62B of the Family Law Act 1975 (as amended), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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