Re: Imogen (No. 3) - [2020] FamCA 395

FAMILY COURT OF AUSTRALIA

RE: IMOGEN (NO. 3)

[2020] FamCA 395

FAMILY LAW – CHILDREN – Medical Procedures – Where the ICL indicates that the child has expressed a clear view that she does not wish to attend an interview with the mother’s expert – Where it is in the child’s best interests for her to attend that interview – Where an order is made for the father to ensure the child’s attendance at the interview – Where a request is made of the ICL to explain the basis upon which the decision for her to attend the interview has been made.

Family Law Act 1975 (Cth)

Re W and W: Abuse allegations; Expert evidence (2001) FLC 93-085

APPLICANT:

The mother

RESPONDENT:

The father

INTERVENOR:

Australian Human Rights Commission

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: By Court Order File Number is suppressed

DATE DELIVERED:

15 May 2020

JUDGMENT OF:

Watts J

HEARING DATE:

14 May 2020

REPRESENTATION

By Court Order the solicitor’s names have been suppressed

Orders

The father is to ensure that Imogen attend upon an interview or interviews with Dr B at reasonable times as nominated by him.
I request the Independent Children’s Lawyer to speak to Imogen and explain the basis upon which the preceding order has been made.

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 Re: Imogen (No. 3) 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

The mother

Applicant

And

The father

Respondent

REASONS FOR JUDGMENT

On 14 May 2020 I made orders, amongst others, 5, 6 and 7 as follows:
5.Leave granted to the [mother] on or before 11 June 2020 to file and serve evidence from [Dr B] expressing opinions on those matters set out in [Dr B’s] affidavit of 9 April 2020. Reasons are reserved for granting this leave.
6.Both the mother and father are to attend any interview or interviews with [Dr B] at any reasonable time as arranged by him. It is noted that interviews will take place via video link in light of the current COVID-19 restrictions.
7.Judgment is reserved as to whether or not the father is to ensure Imogen attend upon interview or interviews with [Dr B] as arranged by [Dr B].
I have now published reasons for orders 5 and 6 and have regard to those reasons when considering the remaining issue, which is whether Imogen should attend upon an interview or interviews with Dr B as arranged by Dr B.
The mother makes an application for an order that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re: Imogen (No. 3)

Details

AGLC: Re: Imogen (No. 3) [2020] FamCA 395
Case: [2020] FamCA 395
Decision Date: 15 May 2020

CaseChat Overview and Summary

In the matter of *Re: Imogen (No. 3)*, Watts J of the Federal Circuit and Family Court of Australia considered an application concerning the welfare of a child, Imogen. The dispute involved the father's request for Imogen to attend interviews with a Dr B, and the court's role in facilitating this.

The central legal issue before the court was whether to make an order compelling Imogen to attend interviews with Dr B, and if so, on what terms. This required the court to consider the best interests of the child in the context of a proposed assessment or interview process.

Watts J reasoned that it was in Imogen's best interests to attend interviews with Dr B at reasonable times nominated by the father. The court further directed the Independent Children’s Lawyer to explain the basis of this order to Imogen, indicating a focus on ensuring the child understood the proceedings. The court's orders were contingent on their formal entry into the Court's records.

Orders

Orders of the court

The father is to ensure that Imogen attend upon an interview or interviews with Dr B at reasonable times as nominated by him.

I request the Independent Children’s Lawyer to speak to Imogen and explain the basis upon which the preceding order has been made.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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