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

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

2. 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

1. 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].

2. 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.

3. The mother makes an application for an order that she do so. That application is opposed by the father and the Independent Childrens Lawyer (“ICL”).

4. Whilst on one view this application might seem procedural in nature, it is a request that a child, currently aged 16, attend an interview or interviews for a forensic purpose in the context of proceedings concerning the welfare of that child (s 67ZC of the Family Law Act 1975 (Cth) (“the Act”)) or the making of a parenting order in relation to that child (s 65D(1); s 60CA of the Act).

5. The decision is not an easy one.

6. A most powerful consideration is the views expressed by Imogen. The ICL informs the court (s 60CD(2)(b); s 68LA(7) of the Act) that Imogen’s clear view is that she does not want to be interviewed by Dr B and that view is based upon her now having seen a number of doctors over a few years. The lawyer for the father says that the father has provided her with strong instructions that Imogen has no desire to be interviewed.

7. The most valuable current evidence as to Imogen’s maturity and understanding is contained in the evidence of Dr C, Imogen’s treating psychiatrist. Dr C assessed Imogen as Gillick competent in regard to gender affirming (feminising) hormone therapy on 3 August 2019 (as set out in his report of 16 December 2019 and annexed to his affidavit filed 17 February 2019, page 8; pages 16-18). This assessment was made on the fourth interview with Imogen (report 16 December 2019, page 2).

8. The father describes Imogen as an intelligent young woman who makes up her own mind through research (paragraph 16 of the father’s affidavit filed 17 February 2020).

9. Accordingly, considerable weight should be given to Imogen’s view that she does not want to attend an interview or interviews with Dr B.

10. On the other hand, these proceedings are about what principles should apply to the outcome in this case and two of the potential issues identified by the evidence filed by the mother from Dr B and upon which he seeks to give an expert opinion is whether Dr C’s assessment of Imogen’s Gillick competence is correct and whether the current diagnosis of Imogen’s mental health conditions is correct.

11. At paragraph 14 of Dr B’s affidavit filed 9 April 2020, Dr B says:

    In the event that the court were to form the view that Imogen not be interviewed by me, my capacity to determine whether Imogen is Gillick competent and provide a diagnosis would be compromised.

    (As per original)

12. The lawyer for the father submitted that Dr B did not explain how his capacity would be compromised but that is plain enough. The dangers of relying upon expert psychiatric evidence, when that psychiatrist has not seen the person about whom they are expressing opinions, are well-known (see Re W and W: Abuse allegations; Expert evidence (2001) FLC 93-085).

13. The lawyer for the father raised the issue of the possible number of interviews that might be involved and the consequent delay. The lawyer for the mother says she was assured in a recent conversation with Dr B that the report could be produced within four weeks. Whilst I do not have any information about how many interviews Dr B expects that he will need with the child, he has more background material than Dr C initially had, including of course Dr C’s reports. So I expect the number of interviews involved would be no more than it took Dr C to make an assessment and probably fewer.

14. I also note that it would be anticipated that Dr B would interview Imogen by video. Given Imogen’s familiarity with that medium, that form of interview has the advantage of allowing Imogen to participate in interviews in surroundings which are familiar to her.

15. The ultimate objective in this case is to achieve an outcome which is in Imogen’s best interests. I have, on balance, reached the view that the hearing to determine what is in Imogen’s best interests would be more appropriately prepared if Dr B had the opportunity of interviewing Imogen. I shall leave the number of interviews to his professional judgment but the interviews should be limited to only those necessary for Dr B to be in a position to form relevant opinions.

16. I shall request the ICL to speak to Imogen and explain to her the basis upon which I have made this decision.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 15 May 2020.

Associate: 

Date:  15 May 2020