Lewis & Dyer

[2008] FamCA 104

FAMILY COURT OF AUSTRALIA

LEWIS & DYER [2008] FamCA 104

FAMILY LAW – CHILDREN – Interim – Orders for psychiatric assessment of mother

Family Law Act 1975 (Cth)

Prendergast and Parsons [2007] FamCA 538

APPLICANT: MR LEWIS

RESPONDENT: MS DYER

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 24 of 2006

DATE DELIVERED: 13 FEBRUARY 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 13 FEBRUARY 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS WHEELER

SOLICITOR FOR THE APPLICANT: FARRELL LUSHER

COUNSEL FOR THE RESPONDENT: NO APPEARANCE

SOLICITOR FOR THE RESPONDENT: BELBRIDGE HAGUE

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MS ROBB

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: ROBB & ASSOCIATES

Orders

1. That all outstanding applications be adjourned to 2.15pm on 31 March 2008 before me.

2. That by 4.00pm on 20 February 2008, the solicitor for the mother advise the Court and all other parties in writing whether or not he is continuing to act for the mother and if not, he forthwith thereafter, file a Notice of Ceasing to Act for the mother.

3. That subject to funding, Dr E be appointed to undertake a psychiatric assessment of the mother as soon as practicable and for that purpose, the mother attend at the appropriate time and place as notified to her by the Independent Children’s Lawyer and that Legal Commission (New South Wales) be requested to meet the costs of Dr E. 

4. That the Independent Children’s Lawyer provide all affidavit material and expert reports to Dr E. 

5. That Dr R be requested to advise the Court and all parties in writing why there are to be no further appointments for her to see the child J. 

6. That pursuant to s 91B of the Family Law Act 1975 (Cth), the Director of the Department of Community Services (New South Wales) is requested to intervene in these proceedings.

7. That the Registry Manager of this Court notify the said Director of this order.

8. That upon request from the said Director, the Registry Manager of this Court permit inspection of the court file by a person authorised by the said Director including copying of any part of the file to enable consideration of the request to intervene in the proceedings and if necessary, the file be produced to the Albury sub-Registry of the Court to enable that inspection to occur.

9. That in so far as it is necessary to do so, the Independent Children’s Lawyer be at liberty to provide to an appropriate officer of the Department of Community Services (New South Wales) with a copy of these orders and any documents which she feels may be relevant to the determination of the said Director to assist in determining whether or not to intervene.

10. That my Associate serve a sealed copy of these orders by post to the mother at her last known address and that the copy letter placed on the court file have her address deleted.

11. That there be liberty to apply on short notice.

12. That if any party requires the attendance of the family consultant on the return date of these proceedings, that party notify the family consultant at least seven days before the return date.

13. That if so advised, the father has the right to attend the next return date by telephone.

14. That the Independent Children’s Lawyer has the right to attend the next return date by telephone.

15. That all costs of the father this day are reserved.

IT IS NOTED that publication of this judgment under the pseudonym Lewis & Dyer is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 24  of 2006

MR LEWIS

Applicant

And

MS DYER

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. On 29 November 2007 this matter was listed before me in the Albury circuit.  After some discussion, it was agreed that the matter would be dealt with under the less adversarial trial system and that the first day of that trial would commence on 13 February 2008 at 2.15pm.

2. I have made some orders this day and indicated to the parties that I would give reasons behind those orders.  These are those reasons.

3. This is a tragic case involving two children, J who was born in January 1997 and is therefore 11 years of age and G who was born in January 2000 and who is therefore eight years of age.

4. The litigation has been in the court system for some considerable period of time.  It remains unresolved.

5. At the time that I adjourned the proceedings from Albury, it was clear to all parties that with limited resources and legal aid funding, I would be flexible about future hearings to ensure that as much evidence as possible was taken by electronic means rather than have those resources expended on the parties coming to Melbourne.  In addition, it was made abundantly clear to me that the mother has problems in travelling not only because of the responsibilities of children but also because of her social isolation.

6. When the matter was called at 2.15pm, there was no appearance on behalf of the mother nor did she attend.

7. For the record, my Associate received an email letter from Belbridge Hague Solicitors at 4.03pm expressing an apology on behalf of the firm for not appearing.  More importantly, the writer of the letter said:

   The writer had made [Ms Dyer] aware in no uncertain terms that she was required to appear at the court this afternoon, but had failed to brief counsel to appear at the hearing.

8. I have made orders requiring the solicitors to indicate whether or not they intend to continue to act for the mother so that there can be no confusion in the future.

9. In any event, the case was really not ready to proceed.  On 29 November 2007, I ordered that the mother do all things necessary to ensure that J attended upon Dr R on 4 February 2008 for an assessment and for further appointments as Dr R might make for therapy and further assessment.  The order provided that Dr R was authorised to provide the family consultant and the Independent Children’s Lawyer with feedback but otherwise the therapeutic relationship with J was noted as confidential in the event that anybody issued a subpoena.

10. It appears that the mother did attend upon Dr R as required but I was told by the Independent Children’s Lawyer that Dr R does not feel it appropriate to have any further appointments.  Having regard to the confidential nature of the meeting between Dr R and J, I do not propose to revisit that order or to require any explanation be given as to what occurred.  I do however want to know why it is that there will be no further appointments or assessments.  It may very well be that Dr R feels that J is not in need of any assistance but on the other hand, the converse could also be true.  Normally I would not contemplate taking this step of requiring an explanation but for the fact that I was advised by the family consultant in the proceedings of serious concerns she has about the welfare of these children to such an extent that not only does she support the intervention of the Department of Community Services (New South Wales) but provisionally she feels obliged to make a notification herself.

11. The family consultant is Ms B.  She has now entered into an arrangement to be engaged by the Federal Magistrates Court of Australia.  I have been informed that there is an understanding between the two courts that assistance will be provided to the other wherever possible and that is particularly relevant in this case where there are severe financial and travel restrictions on both parties.  I have requested the continued involvement of the family consultant but provided that she does not need to attend on the next return date unless something has occurred which might require some cross-examination of her arising out of material or events that occur between now and that return date.

12. The Independent Children’s Lawyer suggested that it was appropriate for the Department to intervene notwithstanding the absence of any explanation from the mother as to what is happening.  The Independent Children’s Lawyer had obviously been privy to some information from Dr R but because of the orders to which I have referred, that information remains confidential.  Suffice to say, Ms Robb made very clear that she had some concerns about what was happening. 

13. In normal circumstances, one would simply make an order for a hearing to proceed on an undefended basis.  The difficulty with that occurring here is that I do not have sufficient information about the children to confidently make any orders.  In part that is something to which I shall turn in a moment because the father has no relationship with them.

14. Under the orders that I made on 29 November 2007, all parties anticipated that Dr W would be involved to undertake an assessment of the mother’s mental health and to prepare a report for the Court.  Dr W has apparently indicated that he is no longer going to be attending at the Albury area and as such the ordered assessment and report has not been undertaken.

15. The Independent Children’s Lawyer with some support from the family consultant suggested a psychologist in Wagga Wagga who has had experience both in the clinical and forensic psychology area.  However, the father through his counsel indicated some hesitation about that and accordingly made inquiries of Dr E who has expressed interest in attending at Albury to undertake the psychological evaluation of the mother that was anticipated in the orders that were made on 29 November.

16. I have expressed to the parties who were present some reservation about the Court’s power to make an order for a party to attend for a psychiatric examination but having regard to the serious concerns expressed by all parties, this is a matter about which I have little doubt.  The welfare of the children is seriously at stake.  I am not prepared to say that the children are at risk until such time as I receive some advice from the Department of Community Services as to whether or not they have any interest in the case.  Be that as it may however, the parties were sufficiently comfortable with the thought of the mother being assessed in November to agree and encourage me to make the orders that I then did.  Whilst those orders were not expressed as orders by consent, they were clearly prepared by the parties and there was no opposition to that specific order.  I have told the parties that I am aware of the case of Prendergast and Parsons [2007] FamCA 538 in which Guest J made an order for a party to attend a psychiatric examination and that that issue is currently awaiting a decision of a Full Court. His Honour said:

    33.Whilst the Full Court in L v T (supra, at paragraphs 57 and 60) has clearly found that a final order can be made for a psychiatric assessment of a party if it is a condition of that party having contact with the child, it is arguably so that the position is less certain as to the validity of an order on an interim basis.  Such a situation, however, hardly assists me at the stage of the proceedings in which I now find myself and would in any event, having regard to one possible scenario, more likely than not result in further proceedings.

    34.With that said, it is plain, however, that should a party refuse a psychiatric assessment or otherwise fail to lead evidence of their psychiatric condition where it is a matter in issue, an adverse inference may justifiably be drawn.  See Jones v Dunkel (1959) 101 CLR 298 per Windeyer J at 320-321; Fabre v Arenales (1992) 27 NSWLR 437 at 449 per Mahoney JA.

    35.In Gilbert v Gilbert (supra) being property proceedings, Nicholson CJ concluded that there was jurisdiction for him to make an order that the wife (in that case) attend for a psychiatric examination on the basis (inter alia) that the court had additional power such as to enable him to exercise statutory jurisdiction with justice and efficiency.  In particular, the court had inherent jurisdiction to control and regulate the proceedings before it and to avoid injustice.  It makes no difference, in my view, that I am dealing with a child welfare issue, for I am satisfied that such an order is an exercise of power ancillary to the power I have to make a parenting order.  The power to do so may be drawn by way of an order under section 68B, section 65D(1), section 67ZC or indeed section 114 of the Act.

17. His Honour went on to examine the impact of the Family Law Amendment (Shared Parental Responsibility) Act 2000 as to whether it distinguished L & T (supra).  His Honour pointed to the fact that s 64B has been amended.  His Honour said:

    48.…Whilst the section previously made provision for a “parenting order” to include an order that deals with "any other aspect of parental responsibility for a child", the definition has been expanded and the new "catch-all" aspect of the definition appears at s 64B(2)(i):

    “(i)any aspect of the care, welfare or development of a child or any other aspect of parental responsibility for a child.”

    49.Having regard to the discussion in L v T (supra) in relation to the need for a connection between the orders sought and the welfare of the child, it would not appear that the amendments to sections 65DA or 64B alter the position set out by the Full Court in L v T (supra).  Section 68B was amended to reflect the changes in terminology brought about by the amending Act (for example, “live with”, “spend time with”).  Section 114 and section 67ZC were unaffected by the most recent amendments to the Act.  Section 67ZC provides that:

    “In addition to the jurisdiction that a court under this Part in relation to children, the court also has jurisdiction to make orders relating to the welfare of children.”

    50.Thus, in my view, the recent amendments do not appear to provide any basis for departure from the Full Court's position expressed in L v T (supra).

18. With great respect to his Honour, I adopt what he says and agree.

19. This case has a tragic history involving proceedings in a Local Magistrates Court resulting in interim court orders in 2001 and domestic violence orders for the protection of the mother from the father. 

20. The father has moved on with his life and has a child who was placed in his care after intervention by the Department of Community Services (New South Wales).  There did not appear to be any specific involvement in the lives of J and G by that same department.

21. In the course of the litigation, there had been a planned meeting at the Children’s Contact Service in March 2007 but on any view, that was completely unsuccessful.

22. J and G have had no contact with the father otherwise and certainly not his family for a number of years.

23. There are significant factual disputes between the parties.  When the family consultant interviewed the mother, she described her as pleasant and cooperative but went on to raise numerous difficulties about complying with court orders that required the children to relate to their father.  She expressed concern about her daughter G’s safety in a sexual sense. 

24. The family consultant described the mother’s emotional tone as “flat” and that there was severe-looking skin rashes extensively covering her hands.  The mother told the family consultant that she had felt suicidal and her doctor had prescribed anti-depressants.  The family consultant said that the mother has declined professional counselling support preferring instead to talk to her own friends.  She acknowledged using cannabis to help her relax and that she had had her own tragic childhood.

25. The family consultant described the mother and the children as very socially isolated almost reclusive but that that was something done at the instigation of the mother.  There is an eerie undertone about all of the matters observed by the family consultant.

26. The family consultant’s view about J was that although he was a likeable and gentle boy, his behaviour was disturbing.  She said that his compliance and politeness whilst certainly charming, seemed to lack spontaneity.  His dispassionate conversation about emotive topics was unusual for a child of his age.  She felt that his flat mood may indicate chronic depression.  This was also articulated by his teacher.

27. To say the least, the family consultant was troubled about J.  According to the family consultant, G had no understanding of who her father was other than that her negative views had been acquired from other people and in particular, from her mother.  Obviously, G has no relationship with her father having regard to the period of time that has elapsed since he saw her and the father is a stranger to G.

28. The family consultant’s view was that the children were utterly unreceptive to the father and that that gave rise to serious emotional issues for the future.  Hence, the suggestions of the involvement of Dr R in J’s life.  That seems to have now fallen rather flat.

29. The family consultant not only reiterated her concerns but seemed to make clear that her concerns were now heightened.

30. In those circumstances, having regard to the isolated nature of the mother’s existence and the absence of any professional involvement in the lives of the children, it seems to me that the only way that I can ascertain not only about the needs of the children but also their welfare is to request the assistance of the state department.  Whilst that may be an imposition on the department’s resources, I am not requesting their assistance for the purposes of some forensic exercise that would otherwise fall within the province of the parents’ responsibilities.  I have a number of professionals now expressing concern about the welfare of the children in circumstances where it is otherwise very difficult for the father to present material and little cooperation from the mother in the court process.  Under those circumstances, I have urged the department to be involved. 

31. On the return date of the proceedings, each party should have information available to them about what has been happening in the lives of the children.  I have given liberty to apply to all parties in the event that some urgent attention is otherwise needed.

32. I direct that my reasons be otherwise released to the parties and if necessary and at the request of the Department of Community Services, to the appropriate authorised officer.

I certify that the preceding Thirty Two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  26 February 2008