Pitman and Hynes and Anor
[2018] FamCA 760
•28 August 2018
FAMILY COURT OF AUSTRALIA
| PITMAN & HYNES AND ANOR | [2018] FamCA 760 |
| FAMILY LAW – CHILDREN – Parenting – application by mother for children to attend upon a psychiatrist – where the mother relies upon a referral from a general practitioner who has not seen the children for two years – where the application is opposed by the father as the primary carer of the children, the Independent Children’s Lawyer and the Department of Child Safety, Youth and Women – application dismissed.. FAMILY LAW – CHILDREN – Parenting – oral application by mother pursuant to s 121 of the Family Law Act1975 for expert family report to be provided to general practitioner – leave granted. |
| Family Law Act 1975 (Cth) s 121 | |
| APPLICANT: | Ms Pitman |
| RESPONDENT: | Mr Hynes |
| INTERVENER: | Department of Child Safety, Youth and Women |
| FILE NUMBER: | WOC | 772 | of | 2011 |
| DATE DELIVERED: | 28 August 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | 28 August 2018 |
| JUDGMENT OF: | Baumann J |
| HEARING DATE: | 28 August 2018 |
REPRESENTATION
| THE APPLICANT APPEARED IN PERSON |
| THE RESPONDENT APPEARED IN PERSON |
| INDEPENDENT CHILDREN’S LAWYER: | Mr D Carter Carter Farquar Mediation & Family Law |
| SOLICITOR FOR THE INTERVENER: | Ms L Walsh |
Orders
That the mother’s Application in Case filed 23 July 2018 be dismissed.
That the Independent Children’s Lawyer file and serve on each other party no later than 4.00pm on 30 August 2018 an Affidavit setting out the basis upon which Ms B was selected and retained to prepare the updated family report in these proceedings.
That the Applicant mother be granted leave to make an oral application to produce a copy of the family report prepared by Ms B dated 7 August 2018 to her and the children’s, X born … 2003 and Y born … 2004 previous treating general practitioner, Dr C.
That pursuant to s 121 of the Family Law Act1975 the mother be at liberty to publish and provide to Dr C a copy of the family report prepared by Ms B dated 7 August 2018.
That Orders 3, 4, 8, 9 and 10 of the Orders dated 1 February 2018 be discharged.
That the Final Hearing dates of 24, 25 and 26 September 2018 be vacated.
That Order 5 of the Orders dated 1 February 2018 be varied such that the mother file and serve on each other party no later than 4.00pm on 19 October 2018:
(a) an amended Initiating Application setting out her precise minute of interim and final orders sought; and
(b) one (1) consolidated Affidavit of evidence in chief.
That Order 6 of the Orders dated 1 February 2018 be varied such that the father file and serve on each other party no later than 4.00pm on 2 November 2018:
(a) Any amended Response; and
(b) one (1) consolidated Affidavit of evidence in chief in response.
That Order 7 of the Orders dated 1 February 2018 be varied such that the Intervener file and serve on each other party no later than 4.00pm on 9 November 2018 any Affidavit in response.
That these proceedings be adjourned for Interim Hearing at 9.30am on 28 November 2018 in the Family Court of Australia at Brisbane.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pitman & Hynes and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: WOC 772 of 2011
| Ms Pitman |
Applicant
And
| Mr Hynes |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)
Having dealt with other matters earlier in the day, I am dealing now with an Application in a Case filed by the mother on 23 July 2018, being supported by her Affidavit filed that day in which she seeks the Court make an order in the following terms:
That the children be assessed by an independent psychiatrist as referred to by their family doctor.
The mother has concerns that she has been consistently raising, that the children have been alienated from her by actions of the father; removed interstate – in fact, she uses the word, effectively, “kidnapped”; that they have been abused by the system and that it is in the children’s best interests that they return to her care immediately in accordance with the Orders made by Judge Lapthorn on an interim basis in 2015.
As I made it clear before I was interrupted by the mother – not for the first time today – the mother’s long-term application is that the children return to her care. The mother is very distressed by this proceedings and I understand that. The point is that the application before me is founded on two letters prepared by general practitioner, Dr C who the mother concedes has not seen the children for two years.
The mother also concedes – and must, in terms of the letter, that the doctor was aware that the parties were going to have a family assessment. That, in fact, was conducted by Ms B and is before the Court. The doctor has not had the benefit of reading that assessment. The mother has indicated she would like that opportunity and she makes an oral application in those terms.
It is absolutely apparent from the report of Ms B, yet to be tested, that these children have endured significant parental conflict and disruption to their life over the last three years or so. The reasons for that are contested but include orders of the Children’s Court of Queensland. What orders are the best interest of the children (upon the expiry of the current Children’s Court orders in December 2018) are going to be dealt with by this Court on an interim basis on 28 November 2018.
The trial that had been listed for 24 September has been vacated because clearly it is not possible to have any confidence that this matter could be dealt with in the three days originally allocated because of a number of factors which were raised during the directions hearing today which I do not repeat.
In my view, the evidence relied upon by the mother is not sufficient to impose upon these children a psychiatric examination. It is not supported by the Independent Children’s Lawyer; the father, who is the primary carer of the children at this stage, or the Intervener, being the Department of Child Safety, Youth and Women.
That is not to suggest in any way that the Court may not be concerned about the children’s mental health functioning, but it seems to me a long bow to draw for a doctor who has not seen the children for two years to almost prescribe a medical examination without having seen the patient for two years.
I think it would be assistance for the doctor, who clearly is a confidant of the mother with whom she seeks advice and who has previously been a medical practitioner for the children and, I am sure, has the best interests of the children in mind, to see the family assessment report by Ms B.
I note the opposition to that by Mr Carter (the Independent Children’s Lawyer) but, in my view, in circumstances where this doctor is obviously a person who has medical training; has seen the children; who the mother relies upon, I see, on balance, no harm in him seeing the family assessment.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 28 August 2018.
Associate:
Date: 25 September 2018
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