Palantine and Palantine

[2010] FamCA 400

FAMILY COURT OF AUSTRALIA

PALANTINE & PALANTINE [2010] FamCA 400

FAMILY LAW – INTERLOCUTORY – Expert evidence and treatment of children

Family Law Act 1975 (Cth) ss 60CA, 60CC(1), 60CC(2), 60CC(3)

Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Palantine

RESPONDENT: Ms Palantine

INTERVENOR: Chief Executive, Department of Disability, Housing and Community Services

INDEPENDENT CHILDREN’S LAWYER: Strong Law Pty. Ltd.

FILE NUMBER: CAC 2273 of 2007

DATE DELIVERED: 25 March 2010

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 25 March 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr R. Routh

SOLICITOR FOR THE APPLICANT: Farrar Gesini & Dunn

COUNSEL FOR THE RESPONDENT: Ms L. Clifford

SOLICITOR FOR THE RESPONDENT: Dobinson Davey Clifford Simpson

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms L. Strong

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Strong Law Pty. Ltd.

COUNSEL FOR THE INTERVENOR Mr A. Tandy

Orders

IT IS ORDERED THAT:

1. The father’s oral application to change the terms of the order I made on 10 March 2010 is dismissed.

2. The father will pay the mother’s costs in the sum of $500 on or before 16 April 2010.

3. I make no order as to costs in relation to the Independent Children’s Lawyer. 

IT IS NOTED THAT:

1. Mr Routh on behalf of the father raised certain issues about orders previously made by Federal Magistrate Brewster.  In the circumstances I indicated that no further order was needed in relation to that matter at this time.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 2273 of 2007

MR PALANTINE

Applicant

And

MS PALANTINE

Respondent

REASONS FOR JUDGMENT

1. This matter came before me by way of an oral application, in effect, of the father arising out of orders that were made by me on 10 March 2010.  On that day the orders I made provided that, following on from the release of a report from Professor  N, the children of the parties were to be referred to Ms I to undertake an assessment and, assuming that the assessment confirmed that this was necessary, therapy in relation to the children. 

2. Orders 3, 4 and 5 made on 10 March 2010 relevantly provided: 

   3. Otherwise all existing orders about the time that the children will spend with their father remain on the basis that there is no order for such time.

   4. That does not preclude the parties reaching agreement with Ms [I] if it should become appropriate to do so that some or all of the children spend time with their father.

   5. There be liberty to apply if Ms [I] is unavailable or unwilling to undertake the assessment and therapy referred to.

3. The matter was then adjourned to 10 May 2010 to review the progress of therapy if the matter had not been earlier brought back before the Court. 

4. The “liberty to apply” related to the unavailability or unwillingness of Ms I to provide the treatment, not the unwillingness or unavailability of either parent to be involved in the carrying out of that order.  In effect, the proceedings today are in the nature of an appeal from the order that was referred to above, and these proceedings are not appropriate as an appeal process.  I accept, however, that in practical terms what we are talking about is a continuing process under the Less Adversarial Trial which will involve from time to time the canvassing of some of the arrangements that have been made.  Overall, in any event, the criterion that must be applied in the making of any parenting order is the paramount consideration of the best interests of the children.[1]

   [1] Family Law Act 1975 (Cth) s 60CA.

5. I do not doubt that the father’s motive in bringing the matter back is what he perceives to be the best interests of the children.  It is part of the continuing problem between the parties that there is no agreement between them as the two people who have parental responsibility for the children about what the best interests of the children might be.  In these circumstances, I believe the matter I have to confront this day is as I outlined it to Mr Routh for the father at the start.  His client puts forward through him a proposal that the assessment and subsequent therapy should be undertaken by Dr M.  Dr M’s qualifications are not in issue in the sense that no one has suggested that he is not a person who might undertake the process involved.  In fact, there has been a preliminary reference to him in this matter which was met by refusal on his part, if I can put it in those terms, to be involved on the terms that were then suggested to him. 

6. The present arrangement would, in my opinion, probably fall within what he is prepared to undertake.  Equally, when these circumstances were canvassed on the last occasion, the alternative person to carry out the therapy that was suggested was Ms I, and at that point there was no particular dissent from that proposition by the father.  It is fair to say, and must be said, that no one in Court on that day was prepared to say, unequivocally, that Ms I was the person who was undoubtedly the best qualified to carry out the therapy referred to, and in fact today that is still the case.  There is no evidence before me that tells me, apart from the “word of mouth” of colleagues and the experience that Mr Tandy on behalf of the Chief Executive has expressed in relation to his activities, both in this Court and the Australian Capital Territory Children’s Court, about the particular qualifications of Ms I.

7. There is nothing before me which would enable me as a judge to make a decision that what is required by the children, in particular by L, is the particular skills associated with either Ms I or Dr M.  I note that in the report that gave rise to this particular reference from Professor N the following words were used, and I quote from paragraph 11 on page 8 of the report which he put before the Court:

   In my view, [L] exhibits clear signs of psychological disturbance warranting further assessment and intervention.  There is ongoing risk of psychological harm if this is not addressed with potential long-term impact on his capacity of healthy relationship functioning.  [C] should also have a further assessment of his capacity to understand the situation he is in and to assess his need for psychological counselling. 

8. In each case the reference from Professor N – and no one has in anyway suggested that her qualifications were not appropriate or that her methodology was not the right methodology or that her conclusions were not in the circumstances appropriate – is that there should be treatment of a psychological disturbance, and in respect of C that there should be psychological counselling.  In that context, while her statement is clearly not prescriptive and would not prevent someone of Dr M’s qualifications from effectively carrying out the treatment, it seems to me there is nothing in that report which would lead me to conclude that there is any superior skills associated with Dr M’s assessment and treatment over those that might be offered by Ms I.

9. So there is no formal evidence before me about the respective qualifications of the professionals and their particular skills in relation to the specific circumstances of this matter.  There is also no recommendation from the jointly acknowledged and not queried expert in Professor N as to the nature of the treatment required.  Where I am faced with a such a situation, I think it is accurately put by Ms Clifford to this extent, that the inconvenience and expense that is to be associated with one choice over the other is to be borne almost exclusively by her client, it seems to me that the father has failed in his evidentiary onus to the extent that one exists in circumstances such as this, to establish that I should change the order that I have already made.

10. I am saddened in this context that, as a result of the order I made on the last occasion, it would have been feasible for the treatment that was originally agreed by everyone, and on the recommendation of Professor N, has now been delayed.  I find that a matter of great tragedy, indeed. 

11. In relation to this matter I indicate, as this is an interim judgment, that I am conscious of the decision of the Full Court of the Family Court of Australia in Goode & Goode,[2] and in particular I am conscious of the fact that the orders I make, although they are, in my opinion, the orders that should more appropriately be the subject of parental decision rather than judicial determination, are orders that must be made in the best interests of the children.  In this context, in accordance with my obligation[3] to consider the primary and additional considerations outlined in s 60CC(2) and s 60CC(3) of the Family Law Act 1975 (Cth) in determining the best interests of the children, I take account of the respective levels of parental responsibility of each of the parents, I take note of the attitude of each of them in relation to their ability and capacity to carry out what is best needed to support the children, both psychologically, physically, and emotionally and financially, and I take account of what I regard as the appropriate motives of each of the parents in trying to find what is best for the children.

    [2] Goode & Goode (2006) FLC ¶93-286.

    [3] Family Law Act 1975 (Cth) s 60CC(1).

12. This is not a situation in which the children’s wishes, in my opinion, are relevant and there are no other matters pursuant to s 60CC(2) and s 60CC(3) that I consider to be appropriate to take into account in coming to the decision that I do.  I emphasise that the decision I make is made as a judge and not, as it should be, by parents who are capable of taking into account matters that are beyond my ability to take into account as a judge.  In my opinion, the husband’s oral application to change the orders that I made on 10 March 2010 should be dismissed, and is accordingly dismissed. 

COSTS

1. Under s 117(1) of the Family Law Act1975 (Cth), the primary prescription is that each party should bear his or her own costs. Under 117(2) of the Family Law Act 1975 (Cth), the Court is at liberty to make an order about the costs of any of the parties if it considers it to be appropriate to do so. If the court is making such a consideration it should take account of, and must in fact take account of, the matters set out under s 117(2A) of the Family Law Act 1975 (Cth). In this matter, the matters under section 117(2A) that would be relevant are the respective financial circumstances of the parties. I do not believe there are any other matters that I could relevantly take into account, apart from what I regard as the misconstruction, perhaps in circumstances where it is understandable that it should be so, of the terms of the orders that I made on 10 March 2010.

2. In my opinion, it is justified that there should be some order for costs in this matter in favour of the mother.  In my opinion, the order I should make should be $500.  I make an order accordingly.  I make that order, I add by way of further explanation, on the basis that while I have indicated I am satisfied as to the bona fides of the husband bringing the application, in my opinion, the application was misconstrued, and moreover the financial circumstances of the mother are such as to justify the making of the order, even if there were no other matter that was involved.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks. 

Legal Associate: 

Date:  6 May 2010