McGregg and Vladamere (No. 2)

[2007] FamCA 1164

FAMILY COURT OF AUSTRALIA

MCGREGG & VLADAMERE (NO. 2) [2007] FamCA 1164

FAMILY LAW – CHILDREN – application by mother for child to attend CAMHS – insufficient evidence in support – no report from general practitioner who recommended the child attend CAMHS – mother’s affidavit insufficient and irrelevant – questions about mothers attitude – father’s affidavit suggesting mother’s behaviour is damaging to the child without qualification – scope for Family Consultant to address mother’s concerns in an updated Family Report – mother’s application dismissed

Family Law Act 1975 (Cth)

APPLICANT: Mr McGregg

RESPONDENT: Ms Vladamere

INDEPENDENT CHILDREN’S LAWYER: Nicola Atchison

FILE NUMBER: ADF 485 of 2004

DATE DELIVERED: 12 September 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 12 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Elmes

SOLICITOR FOR THE APPLICANT: Graeme Hemsley

COUNSEL FOR THE RESPONDENT: Mr Verlato

SOLICITOR FOR THE RESPONDENT: Downs Lawyers

INDEPENDENT CHILDREN’S COUNSEL: Mr J Bowler

INDEPENDENT CHILDREN’S LAWYER: Nicola Atchison

Orders

1. That the mother’s oral application for the child M born …July 2003 to be permitted to attend at CAMHS for the purposes of psychological assessment be dismissed.

2. That paragraph 1 of the order made by the Honourable Justice Strickland on 23 August 2007 be varied to provide that Ms C also in preparing her updated Family Assessment Report address the need for the said child to have counselling and/or to attend upon a psychologist in the context of the issues raised by the mother about her behaviour around time spent with the father.

3. That each party file and serve an affidavit of evidence in chief including any affidavits of any witnesses they propose to call at the final hearing by 4:00pm on 7 November 2007.

4. That any report from Anglicare to be relied upon by the Independent Children’s Lawyer be filed and served by 4:00pm on 7 November 2007.

5. That each party through their solicitor advise the other party of any medical or health professional they have each consulted from 1 June 2006 to date.

6. That leave be granted to both parties to issue subpoenae for the production of documents from any of the medical or health professionals identified pursuant to order 5 hereof.

7. That leave be granted to the mother to issue a subpoena to Anglicare for the production of their records in relation to the child the subject of these proceedings.

8. That leave be granted to the mother to issue a subpoena to F Street Clinic for production of all documents relating to the child the subject of these proceedings.

9. That further consideration be adjourned to 9:00am on 16 November 2007.

10. That leave be granted to the parties and their legal representatives to attend the adjourned hearing by way of telephone if required.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 485 of 2004

MR MCGREGG

Applicant

And

MS VLADAMERE

Respondent

EX TEMPORE REASONS

1. I have in effect an oral application before me by the mother to permit the child to attend, initially at least, an intake assessment with CAMHS at G.  There is an appointment in place for that later this month.  There was an earlier appointment but, given that at that time I had concerns about whether it should occur at all, I invited the mother to rearrange the appointment to a date after this hearing, and that has been done. 

2. I made an injunction on the last occasion restraining the mother from taking the child to CAMHS or any other similar organisation.  That was intended to be a holding position until I had sufficient evidence before me to properly address this issue, and again that was the purpose of the adjournment to today.

3. Each party has filed an affidavit.  However, what has not been done, and which both surprises me and concerns me, is that there is no report from the General Practitioner who referred the child to CAMHS.  Of course that was at the behest of the mother, but surely the General Practitioner has exercised an independent judgment about that.  In any event, there is no report from the doctor, despite me referring to that specifically in my remarks on 23 August 2007 and making an order about it, namely:

   “That the mother file any affidavit material, including a report from the general practitioner who has referred the child.”

4. Thus all I have is an affidavit from the mother.  I must say though I was also concerned about the mother's affidavit because all she has done is annex a transcription of notes that she says she has made along the way.  In my view that is an extremely lazy and inappropriate way of preparing an affidavit because, having read those notes, there are substantial parts which are inadmissible.  This is a Division 12A case, but not all of the evidence rules are excluded and of high importance is whether the evidence is relevant or not.

5. The mother has commented on her observations of the child and on what the child has said at various times, but much of that seems to me to be irrelevant to the issues before the court.  Importantly I cannot find any justification in the notes for this child to be taken to a psychologist.  Indeed, some of the matters raised can easily be clarified and dealt with by the involvement of Ms C, in the context of her further updated assessment, but also can be clarified by evidence at the unfortunately inevitable hearing that is going to take place in December 2007.

6. The notes of the wife have also confirmed for me what I expressed in my extempore reasons for judgment on 7 May 2007 and in particular paragraph 15.  I consider it is necessary to repeat what I said there because, as I say, reading this affidavit from the mother has further confirmed these issues in my mind, albeit still only on a preliminary basis.

7. What I said in paragraph 15 was:

   “…the mother needs help.  She needs some expert advice as to what is happening in her life and the child's life.  I do not propose to make any order that the mother seeks such assistance but I urge her to do so voluntarily.  Her conduct and her behaviour will impact upon this child's psychological health.  I hesitate to think what the long-term effect of the mother's current attitude will be upon this very young child.  Unless the mother changes her attitude and unless the mother becomes supportive and encouraging of the child having a relationship with her father, then I have grave concerns about this child's long-term mental health.”

8. It seems to me that the mother has taken absolutely no notice of what I have said.  To repeat, it is the mother in my view that needs help.  She needs to attend counselling to deal with what is happening in her life and the child's life.  This is quite obvious to me on the evidence that is before me now, and that is all I can go on of course, although it may change at the trial with a further report from Ms C, but that is for the future.

9. There is no justification in my view for this child to be sent off to CAMHS and be seen by a psychologist.  I agree with Mr Bowler that I can extend the parameters of Ms C's brief to look at the issues that the mother is raising. 

10. Although I have found there is no justification on the evidence before me for the involvement of a psychologist with the child there are obviously still issues of concern.  Fortunately the child is bearing up remarkably well but how long is that going to be the case?  This troubles me greatly, and I frankly have very grave doubts about whether the issues will be resolved by a trial and a decision made by me.  The key will be the mother’s attitude at the time.

11. I have concentrated in my comments today on what the mother's position is.  I am not suggesting that the father does not have anything to answer for.  Indeed, I am concerned about matters in his affidavit.  He has set himself up as an amateur expert, suggesting that what the mother is doing is damaging to the child.  Now, that may be the case, but he is no expert.  He has commented on things which in my view he simply cannot comment on. 

12. There is also a history to this matter, which obviously will be addressed in more detail at the trial.  All I am dealing with though at the moment is the current position, and my comments are addressed to that.  Long-term, what is going to happen in this matter, I do not know. 

13. The father appears to have changed his ways and he has persisted in seeking time with the child.  That is to his very great credit.  It seems that the child relates well to him - that is coming out of the reports from Anglicare, but that is only part of the battle.  There are two parents here and a very young child.  They are going to have to work together for a long time in the future in the interests of their child. 

14. I have spent more time than I perhaps might have in making these comments because I want to dispel the notion that all ills will be solved by a trial.  In my view they will not.  The trial will certainly set the parameters of what is to happen in the future.  Whether my order is that there is no time spent or some time spent and whether it is supervised or not, that all remains to be seen.  To repeat though, I doubt whether that is going to resolve the problems that exist in this matter.  It is very frustrating to see to this very young child caught up in this conflict between her parents.

15. I now want to address the issue of affidavit material for the purposes of the trial and the issuing of any subpoenas and any other matters necessary to prepare for the trial.  I propose to have a compliance directions hearing by way of telephone link, for those who need it, on 16 November 2007 and at that time I will make final orders for preparation for trial. In the meantime I will be ordering affidavits to be filed and any report from Anglicare that is to be relied upon be filed by early November. 

16. Each party has raised issues with me about subpoenas, and I will address those in my orders. I also note that I have taken everyone through the issues that I expect to be addressed in the affidavits of the parties. I am not going to make specific orders about that; each party has heard what I have had to say. Of course, there are a number of areas where each party has to be left to their own devices, so to speak, in terms of what they put in their affidavits. One example in particular, of course, is addressing the relevant matters in Section 60CC of the Family Law Act 1975 (as Amended). However, this case is about what is currently happening in this child's life.  Historical matters are relevant, but only as they bear upon the child today, and I need to hear generally about the history but not specifically. 

17. I also expect that the parameters of the evidence at the trial, putting aside the affidavits for the moment, will also be defined to some extent by what is in Ms C's updated family assessment. 

I certify that the preceding 17 numbered paragraphs are a true copy of the reasons herein of the
Honourable Justice Strickland

The 12^th day of September 2007

Associate