Sinclair-Small and Sinclair

[2009] FamCA 1208

FAMILY COURT OF AUSTRALIA

SINCLAIR-SMALL & SINCLAIR [2009] FamCA 1208

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoena

APPLICANT: Ms Sinclair-Small

RESPONDENT: Ms Sinclair

INDEPENDENT CHILDREN’S LAWYER: Graeme Hemsley

FILE NUMBER: ADF 1004 of 2000

DATE DELIVERED: 8 September 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 8 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Kovacs

SOLICITOR FOR THE APPLICANT: Robert Ellis

COUNSEL FOR THE RESPONDENT: Mr Bowler

SOLICITOR FOR THE RESPONDENT: Ann Josephson Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Hemsley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Graeme Hemsley Barrister & Solicitor

Orders

UPON NOTING

1. That the mother will forthwith arrange general counselling for the children with a therapist recommended by the Independent Children’s Lawyer after taking advice from Dr L, Family Consultant, and on the basis of the report of Dr L being made available to that therapist and Dr L conferring initially with the therapist to explain what is expected and particularly to explain that the counselling is to be of a general nature and for example that the recommendations of Dr L in terms of reunification with the father is not a process to be undertaken.

2. That it is anticipated that at the conclusion of the process Dr L will speak to the therapist and report back to the Court as to the progress of the same and any recommendations that the therapist might have at that time.

IT IS ORDERED

1. That the two subpoenas issued by the father on 21 August 2009 be set aside, uplifted and returned to his solicitor forthwith.

2. That this case be adjourned part heard to 9:00am on 16 November 2009 with a time estimate of one hour.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1004 OF 2000

MR SINCLAIR-SMALL

Applicant

And

MS SINCLAIR

Respondent

EX TEMPORE REASONS

1. This is a matter where today is the first day of the trial.  I will not repeat all that has been said and I will be as brief as I can, given what I have said already.  This is a very difficult matter.  It is a matter where the father is now seeking to spend time with his children.  He has not seen them for some eight years.  The mother is opposing that at this stage and that said, that obviously, perhaps, expresses how difficult this matter is.  The children are of an age where their views are highly relevant and we have an extensive and very helpful assessment that has been provided by the family consultant in this case, Dr L.  It is a report of 10 June.

2. Today, I have clarified the orders that the parties seek.  The orders that the father seeks are that the children continue to live with their mother, that the children spend time with him, namely, initially at least, supervised time of the usual two hours duration that is offered by a Children’s Contact Service. 

3. However, as I raised with his counsel, there needs to be a step or several steps, I suppose, before it could ever reach the stage of the children spending time with the father and not the least of which is the children having some counselling given that they, have not seen their father for eight years and according to the report of Dr L, they do not want to see him currently.

4. Dr L has given some oral evidence before me today and in the course of that oral evidence it has been recognised that regardless of these proceedings, the children need counselling in relation to their general health and wellbeing as well as counselling around their thoughts and feelings about their father because, as expressed in Dr L’s report, there is a vehemence about particularly S’s views of her father, which should at some stage, and now is as good a time as any, be addressed so that that child does not carry forward the obvious anger and hurt that she is currently experiencing.

5. The counselling that is being talked about there though is not counselling aimed at reunification of the children with their father, although I am sure that is what the father’s ultimate aim is.

6. Dr L expressed the view that as currently advised, counselling should not address the question of reunification.  She was quite candid in what she said.  She felt that certainly S would disengage with the counselling and thus it would be of no value whatsoever. She was a bit more reserved in her view about the younger child, B, but it seems that the parties accept what Dr L is saying about this and, indeed, the mother’s position is also along the same lines, namely it would be helpful to the children to have what is being called general counselling and then see where that leads. It may be that out of that counselling it is appropriate to move to a further step in the process and to start looking at re-establishing a relationship between father and children but initially, at least, the recommendation of Dr L is for the children to undergo just general counselling. 

7. The parties have now agreed with that process.  Indeed both parties and the Independent Children’s Lawyer put to me that these proceedings should be adjourned to enable that initial general counselling to be undertaken.  Dr L has in mind one or more therapists who can undertake this counselling.  Mr Hemsley, the Independent Children’s Lawyer, also has a name that he wants to put forward.

8. Dr L has also explained how this counselling can take place through a plan which would enable the cost of it to be limited and apparently she can recommend a therapist or therapists in the general area where the mother lives such that travelling will not be an issue either.  Thus I am asked to put this in place and adjourn these proceedings.  As I said a moment ago I am reluctant always to adjourn proceedings but this is a case which really can go nowhere, without at least this initial counselling.

9. When I say “nowhere” the only alternative really would have been to set up a conclusion hearing where the parties would be totally opposed in terms of the positions they take. That ultimately still may be the case but both parties have given instructions to their legal representatives to take this initial course of general counselling first and I agree with it in this case.

10. As I said a moment ago, I was concerned about whether there should be an order for this counselling, and I have decided there should not be. I am just going to note it and adjourn these proceedings.  I am going to adjourn it for two months as I have also indicated earlier because I want to ensure that the counselling is set up and it does take place because otherwise we might as well just get on with it in terms of listing the matter for a conclusion hearing.

I certify that the preceding 10 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland on 8 September 2009.

Associate