MacDougal and Benson and Anor

[2014] FamCA 494

FAMILY COURT OF AUSTRALIA

MACDOUGAL & BENSON AND ANOR [2014] FamCA 494

FAMILY LAW – CHILDREN – Whether an updated family report should be ordered – release of documents produced pursuant to subpoena – whether documents produced from children’s schools should be released.

Family Law Act 1975 (Cth)

APPLICANT: Mr MacDougal

FIRST RESPONDENT: Ms Benson

SECOND RESPONDENT: Mr Benson

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 1674 of 2013

DATE DELIVERED: 10 July 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 4 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Treyvaud

SOLICITOR FOR THE APPLICANT: Forte Family Lawyers

COUNSEL FOR THE FIRST RESPONDENT: Mr Thompson

SOLICITOR FOR THE FIRST RESPONDENT: Lennon Mazzeo Lawyers

COUNSEL FOR THE SECOND RESPONDENT: No appearance

SOLICITOR FOR THE SECOND RESPONDENT: HWL Ebsworth Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Dowler

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Jenkins, Victoria Legal Aid

ORDERS

IT IS ORDERED THAT

1. The husband, the wife, and the children of the marriage S born … 1998, C born … 2001 and M born … 2006 attend upon Ms R for the purposes of the preparation of an updated family report SAVE THAT:

   a)the child S’s attendance be subject to his wishes and/or the recommendations of his treating mental health professionals; and

   b)the children not be brought into contact with the husband for the purposes of the preparation of the report.

2. Ms R’s report be completed and released to the parties by no later than 4.00 pm on 19 August 2014.

3. Ms R be at liberty to speak to the children’s treating medical practitioners and/or any medical professional who has or is presently treating the children and/or any teacher and/or other staff member involved with the children at their respective schools and to inspect the Court file and all documents produced under any subpoena which the Court has ordered be released.  

4. The question of payment for the preparation of Ms R’s report be reserved to the mention of this matter on 29 July 2014.

5. The documents produced pursuant to subpoenas issued 13 June 2014 directed to Dr E, V Pty Ltd, and Victoria Police be released to the parties and the Independent Children’s Lawyer for inspection and photocopying and such copy documents be held by the solicitors for the parties and the Independent Children’s Lawyer until further order.

6. The children’s school reports and attendance records produced pursuant to subpoenas issued 13 June 2014 directed to School P and School O be released to the parties and the Independent Children’s Lawyer for inspection and photocopying and such copy documents be held by the solicitors for the parties and the Independent Children’s Lawyer until further order. 

7. The question of release of the documents produced pursuant to subpoenas issued 13 June 2014 directed to School P and School O, other than those released pursuant to paragraph 6 of these orders, be reserved.

8. The subpoena hearing listed before Registrar Field on 11 July 2014 be vacated.  

AND THE COURT NOTES THAT

The docketed registrar will extract the documents to be released pursuant to paragraph 6 hereof. The balance of the subpoenaed documents to be held pending further order in a sealed envelope marked “Not to be released”.

IT IS NOTED that publication of this judgment by this Court under the pseudonym MacDougal & Benson and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1674 of 2013

Mr MacDougal

Applicant

And

Ms Benson

First Respondent

And

Mr Benson
Second Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This matter is listed for a 10 day final hearing before me in relation to both parenting and financial matters commencing 8 September 2014. On 6 May 2014 I listed the matter for mention before me to consider the following questions in relation to the parenting issues:

   a)    whether or not an updated family report should be ordered;

   b)   whether or not leave be granted to issue subpoenas addressed to any psychiatrist, psychologist or like medical facility treating the children or any of them; and

   c)   the question of expert evidence in relation to parental alienation.

2. The parties commenced cohabitation in the early 1990’s and were married in December 2010. The parties separated in early 2013. There are three children of the marriage, S who is 15 years of age, C who is 13 years of age, and M who is 8 years of age. All three children live with the wife and are currently not spending any time or communicating with the husband.  

3. The husband seeks orders that the children live with him and it is his case, in summary, that the wife has alienated the children from him. The wife’s case, similarly in summary, is that it is the husband’s behaviour and, in particular, the history of family violence towards both herself and the children during the marriage which has led to the children’s fear of him and the breakdown of their relationship with him.

4. The question of whether expert evidence should be adduced in relation to parental alienation was not the subject of any real dispute before me, in that I was advised by counsel for the husband, Ms Treyvaud, that, as yet, no decision has been made as to whether or not it is proposed to adduce evidence from an expert in relation to these matters. That decision awaiting the availability of Senior Counsel who is briefed to appear at the final hearing and the release of a report by Ms R in the event that one is ordered to be prepared.  In the event that a decision is made to do so, counsel for the wife, Mr Thompson, has indicated that this will not be opposed. Counsel for the Independent Children’s Lawyer, Ms Dowler, submitted that the Independent Children’s Lawyer does not intend to adduce evidence from an expert and it was her submission that it was a matter for the husband and his legal advisers.

5. That being said, my preliminary view is that the outcome of this case is likely to depend upon the particular facts and circumstances of the case rather than any theoretical analysis of what is described as ‘parental alienation’ by an expert who has not met either the parties or the children in this case.

6. The remaining two issues are connected to the extent that Ms Treyvaud for the husband submitted that, in the event the court were to order that an updated report be prepared by Ms R, the husband would not pursue the release of the documents subpoenaed from the children’s schools that relate to any counselling or other pastoral care provided by those schools.

7. On 8 March 2013 orders were made by consent that the parties attend upon Ms R for the purposes of the preparation of a family report. That report, dated 17 April 2013, was filed on 19 April 2013.  It is the husband’s case that Ms R should prepare an updated report for the purposes of the final hearing.

8. The Independent Children’s Lawyer supported the husband’s application that Ms R prepare an updated family report in circumstances where the evidence suggests that since she prepared her first report the children’s mental health has deteriorated and their position in respect of contact with the husband has become more entrenched. However, the Independent Children’s Lawyer opposed the children being brought into contact with the husband for the purposes of the preparation of any updated report.

9. Counsel who appeared on behalf of the wife, Mr Thompson, opposed the preparation of an updated report on the basis of the risk the preparation of that report might present to the children in light of their significant mental health issues and, insofar as the wishes of the children were relevant, those wishes could be ascertained and conveyed to the court by either Dr Y or the Independent Children’s Lawyer.

10. Mr Thompson referred me to and relied upon the evidence of Dr Y, the psychiatrist who has been treating all three children, and, in particular, the summaries at the conclusion of each of Dr Y’s reports.

11. Dr Y said in relation to the child S as follows:

    [S] remains severely mentally ill. He is suffering from first episode psychosis with symptoms that have been present for at least three years. In addition, he is suffering from Major Depression and Post-[T]raumatic Stress Disorder.

    He has had many suicide attempts and remains a serious suicidal risk. His severe illness has occurred in the context of severe emotional and physical abuse from his father over many years, and in the context of his feelings of his guilt at not being up to protect his sisters from abuse. He feels guilty that he did not report the abuse to their mother earlier because of fear of father’s threats that he would kill them if he or his sisters told [their] mother.

    …

    [S] remains afraid of, and angry with, his father. Any contact with his father is likely to have a detrimental effect, including increased risk of suicide and homicide.

12. Dr Y made the following observations with respect to the child C:

    [C] is a 13 year old Year 8 student. She is suffering from Post-Traumatic Stress Disorder and depressive symptoms, with suicidal thoughts and a past history of a suicide attempt.

    …

    From time to time, [C] expresses fear of her father and concern about his threats to kill her if she disclosed their physical abuse to anyone else, but particularly the mother.

    …

    [C] remains afraid of her father. I am concerned that contact with [her] father would cause deterioration in her mental state, including another suicide attempt and increased risk of suicide.

13. Finally, with respect to the child M, Dr Y said as follows:

    [M] is now nearly 8 years old and is in Grade 2. She continues to show symptoms of depression and some symptoms of [P]ost-[T]raumatic [S]tress [D]isorder.  From her dreams, there are themes related to the emotional and physical abuse that she has suffered in the past from her father. She remains frightened of her father and has a fear that he may re-enter the home.

    It is concerning that she likes to harm herself and has become the victim of a bully at school. This is often a pattern in children who have been abused.  Currently her teachers and school counsellor are concerned about her because of her sadness, the tendency to isolation and her physical complaints.

    …

    [M] continues to be afraid of her father. I am concerned that contact with her father would cause deterioration in her mental state, including Major Depression and risk of suicide.

14. Division 12A of Part VII of the Family Law Act 1975 (Cth) sets out the principles for conducting child-related proceedings. Those principles require the court to:

    a)    consider the needs of the child or children concerned and the impact the conduct of the proceedings may have on the child or children;

    b)   actively direct, control and manage the conduct of the proceedings;

    c)   safeguard the child or children concerned from being subjected to or exposed to abuse, neglect or family violence; and

    d)   that the proceedings are, as far as practicable, to be conducted in a way that will promote cooperative and child-focused parenting by the parties; and

    e)   finally, that the proceedings are to be conducted without undue delay and with as little formality, legal technicality and form as possible.

15. It is Dr Y’s opinion that it would not be in the children’s best interests to have any contact with their father. Although the evidence of Dr Y has not been tested and the cause of the children’s mental health issues is in dispute, nevertheless her evidence raises significant concerns with respect to the mental health of these children and their welfare. That being said, it is not proposed that the children be brought into contact with the father for the purposes of the preparation of an updated report by Ms R. Whilst that may place limits upon the report writing process I am satisfied, given the current state of the evidence, it is in this case a necessary limitation.

16. It was submitted by Mr Thompson for the wife that even if the children are not required to have any contact with the husband for the preparation of an updated report, that the preparation of a report would, in any event, be detrimental to their welfare as it would be a painful reminder of what counsel submitted was the trauma they had suffered at the hands of their father.

17. Mr Thompson further submitted that in circumstances where they were already receiving treatment from Dr Y, a professional whom they trusted, that it would not be in their best interests for them to be introduced to another professional such as Ms R.

18. In my view, this does not sit comfortably with the evidence in relation to the letter dated 1 July 2014 sent by the wife to the Independent Children’s Lawyer, and copied to the solicitors for the husband, stating that she has been told by Dr Y that the children want the opportunity to express their wishes in relation to this matter to the Independent Children’s Lawyer. This course of action would involve the children not only meeting with another professional but also – if I were to adopt one of the alternatives proposed by the wife – arguably one without the qualifications and experience of Ms R in dealing with children in general and children who, as in this case, appear to have significant mental health issues. This observation is not to be in any way taken as a criticism of the Independent Children’s Lawyer.

19. It was submitted on behalf of the Independent Children’s Lawyer that although it was the Independent Children’s Lawyer’s intention to meet with the children,  the recommendations of Ms R would determine what she might say to the children at that meeting.

20. Whilst I agree with Mr Thompson that it is not just a question of the children’s wishes but what is in their best interests irrespective of those wishes, it is not simply a question of knowing what their wishes might be but also a matter of the weight that might be given to those wishes.

21. Insofar as it was submitted by Mr Thompson that Dr Y could be the one to give evidence as to the children’s wishes, I am mindful of the particular nature of her professional relationship with the children and the focus of that relationship.

22. Ms R would, by the very nature of her role, have a broader focus. Ms R is not unknown to the children having already completed a report in this matter and the fact that she has already prepared a report, in my view, means that she may provide some insight into the current situation particularly in circumstances where it appears that the children’s mental health has deteriorated notwithstanding that they have not been spending any time with nor had any contact with their father.

23. In all of the circumstances, I am satisfied that an order should be made that Ms R prepare an updated family report. However, given S’s age and the history of his recent hospitalisation, I propose to make the order with respect to his attendance subject to his wishes and any recommendations of his treating medical practitioners.

24. I turn now to the question of what, if any, of the documents produced pursuant to subpoena by the children’s schools should be released. The wife opposed the release of any of those documents. Mr Thompson for the wife submitted that the children themselves do not want their school records disclosed and, when pressed on the question of how the children would know that their records had been disclosed, submitted that “they may well find out”. 

25. Ms Dowler for the Independent Children’s Lawyer submitted that the Independent Children’s Lawyer did not oppose the release of the children’s school reports and attendance records. However the Independent Children’s Lawyer opposed the release of documents produced insofar as they relate to:

    (a)   all files and file notes written or typed (by any teacher or employee of the school);

    (b)  correspondence (including emails) and documents directed to or received from either parent or any third party (including psychologists, doctors and other treating medical practitioners);

    (c)  file notes by any teacher or employee of the school of all telephone or physical attendances on either parent; and

    (d)  all other documents relating to the children, whether written or typed.

26. Ms Dowler submitted that the release of these documents were “of grave concern” to the Independent Children’s Lawyer and it was the Independent Children’s Lawyer’s view that such material would be more appropriately put before the Court by way of the updated family report.

27. Whilst one would hope that the children would not become aware of the disclosure of their records there are, of course, no guarantees and I have had regard to the possible detriment to these children, who already appear to be at significant risk, of undermining any of the therapeutic or pastoral assistance that has been made available to them at or by their respective schools. On that basis, I propose to limit the release of documents produced by the children’s school to their school reports and attendance records, however I will reserve liberty to apply to the husband to seek leave to renew his application for release of the documents in relation to the children’s schooling in the event that Ms R’s report raises issues that he submits might necessitate inspection of other documents produced by those schools.

28. Insofar as the information in relation to the children’s schooling may be relevant for the purposes of the matters I must determine, Ms R will be at liberty to make enquiries in relation to the children’s schooling generally and any counselling or pastoral care they may have received or are currently receiving for the purposes of the preparation of her updated report. Ms R’s ability to speak to those medical practitioners treating the children and to the children’s schools is, in my view, another reason why it is appropriate in this case to make the order sought by the husband for the preparation of an updated family report.  

29. Although I have not sighted the documents in question I was advised by Mr Thompson for the wife that the wife has filed an application in a case seeking the release of monies held in trust to enable her to meet her costs of the proceedings and that the husband would also require funds to meet his costs. Given that the matter has been listed for final hearing before me on

    
    

    8 September 2014 I have listed that matter for mention before me at 9.00 am on 29 July 2014 and made orders with respect to the husband filing a response to that application in a case and any affidavits in support thereof.

30. The outcome of that application may be relevant for the purposes of determining how the updated family report I propose to order be prepared be paid for and, on that basis, I will reserve the question of payment for Ms R’s report to the same date.

31. I am advised by Ms Dowler for the Independent Children’s Lawyer that Ms R can see the parties and the children at the end of July and that the report can be completed a matter of weeks thereafter. On that basis, I propose to order that the report be completed and released by 4.00 pm on 19 August 2014.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 10 July 2014.

Associate: 

Date: 10 July 2014