McDruitt and Van

[2009] FamCA 788

FAMILY COURT OF AUSTRALIA

MCDRUITT & VAN [2009] FamCA 788

FAMILY LAW – CHILDREN – Expert Report – “Systems Abuse”

Family Law Act 1975 (Cth)

APPLICANT: Ms McDruitt

RESPONDENT: Mr Van

FILE NUMBER: BRC 14454 of 2007

DATE DELIVERED: 17 July 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 17 July 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Rhonda Sheehy and Associates

COUNSEL FOR THE RESPONDENT: Mr Byrne

SOLICITOR FOR THE RESPONDENT: SBA Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDRENS LAWYER: Grant & Associates

Orders

IT IS ORDERED BY CONSENT THAT

1. Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the document titled “Minutes of Consent” sealed and attached hereto.

IT IS ORDERED THAT:

1. The matter is adjourned to the Magellan Registrar at 2.00 pm on 20 November 2009, in the Brisbane Registry of the Family Court of Australia, for the making of directions and listing the matter to final hearing, and that such hearing by conducted by telephone.

2. AND IT IS REQUESTED THAT the parties communicate with the Magellan Registrar electronically at the e-mail address … at least two clear days prior to the directions hearing date and provide details of the legal practitioner whom will be attending the directions hearing and the telephone number they can be contacted on.

3. The parties do all such things, sign all such documents, pay all such fees and attend all such consultations as might be necessary so as to permit a Psychiatrist nominated by the Independent Children’s Lawyer to prepare a report in respect of the parties.

IT IS FURTHER ORDERED THAT

1. Pursuant to s 65DA(2) and s 62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS DIRECTED THAT

1. The Minutes of Consent remain upon the Court file.

MINUTES OF CONSENT

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER THAT

1. The father’s time with the child presently supervised at the [G] Contact Centre shall continue.

1. In addition to the father’s time at the Contact centre the father shall have time away from the Contact Centre, for up to 4 hours, supervised by a supervisor agreed between the parties in writing.

1. When the father is having time pursuant to order two (2) the first 30 minutes and the last 30 minutes of such the time shall occur at the Contact Centre.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 14454 of 2007

MS MCDRUITT

Applicant

And

MR VAN

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The child the subject of these proceedings, a daughter, was born in June 2003; she is accordingly just 6. 

2. Allegations are made by the mother, denied by the father, in respect of what might be broadly described as inappropriate sexual conduct.  An application is made by her to have the child interviewed by a child psychiatrist.

3. This 6 year old child has already been subjected to interviews conducted in relation to the allegations that are the subject of these proceedings.  The term “systems abuse” is a term now in common usage and refers to the emotional abuse of children, unintended but coincidental to, children being subjected to numerous interviews and investigation of serious matters that relate to them.

4. That term is, in my respectful view, now so widely used that there can be a tendency to underestimate the importance of it in relation to the best interests of children.  As the expression indicates, “systems abuse” is just as much abuse as any other form of abuse albeit that it is not only unintended by those who perpetrate it, but is perpetrated often with the best of intentions. 

5. The Rules of the Court are framed in such a way as to have this Court order the minimum amount of intervention as is reasonably possible with respect to children the subject of allegations in the Court.  This child has been interviewed by many people on many different occasions.  She is just 6.  When most of the interviews took place, she was 5. 

6. Despite the submissions made on behalf of the mother with respect to those matters raised in the family report that might give rise to concerns about things the child has said or done, I do not consider that those matters warrant the intervention of yet more interviews with yet another professional towards this child.

7. In that respect, I note that Dr M, who has expertise as a child psychiatrist as well as an adult psychiatrist, will interview the parties and I have little doubt, these short reasons will no doubt make it clear, that I consider it appropriate that Mr Grant, who is the independent children's lawyer in this matter, will flag for consideration by Dr M, those matters raised by the mother's solicitor during the course of argument this morning in support of an interview of the child by a psychiatrist.

8. Equally, I have little doubt that, having flagged those issues and been made aware of the court’s attitude, Dr M will recommend such an interview (or, indeed, any other intervention or the like) if she considers it appropriate in the child’s best interests.

9. I refuse the application to have the child interviewed by a child psychiatrist and a report prepared accordingly. 

10. Clearly enough, matters such as these are never closed and if Dr M is of the view that a psychiatric examination of the child should take place, then that is a matter that I would clearly take into account in making an assessment of whether the interview was, on balance, in the child's best interests at a later time.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  31 August 2009