SS & AH

[2010] FamCA 476

FAMILY COURT OF AUSTRALIA

SS & AH [2010] FamCA 476

FAMILY LAW – CHILDREN – Application for supervised time with a child – Where the mother’s time with a child was suspended – Whether time with the child should be re-introduced – Where an application for an educational assessment of a child is dismissed – Section 65L order

APPLICANT: Ms SS

RESPONDENT: Mr AH

INDEPENDENT CHILDREN’S LAWYER Ms Kingston, Solicitor, Legal Aid Queensland

FILE NUMBER: BRF 1070 of 1999

DATE DELIVERED: 4 June 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 25 May 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: The Applicant Mother appearing in person

COUNSEL FOR THE RESPONDENT: The Respondent Father appearing in person

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Kingston, Solicitor of Legal Aid appearing as the Independent Children’s Lawyer

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The Father will arrange the attendance of the child, K born … September 1997, upon a Family Consultant at such times as determined by the Regional Coordinator of the Court’s Dispute Resolution Service, AND:

   a.the Family Consultant will assess in what manner K’s time and/or communication with the Mother might be progressed;

   b.the Family Consultant will provide such assistance with a resumption of K’s time, and a progression of K’s communication, with the Mother as the Family Consultant deems appropriate;

   c.should the Family Consultant so recommend, K will attend upon a counsellor or therapist AND:

   i.the counsellor or therapist will be as nominated by the Independent Children’s Lawyer in consultation with the Family Consultant, or as ordered by the Court;

   ii.the counsellor or therapist will undertake all such therapy or counselling with K that the counsellor/therapist considers appropriate;

   iii.the counsellor or therapist will include the Mother and Father or other significant persons in therapy and counselling as the counsellor/therapist considers appropriate;

   iv.the counsellor or therapist is authorised to discuss the counselling with the Independent Children’s Lawyer;

   v.the counsellor or therapist shall not be required to provide a report of the counselling unless, in the counsellor’s opinion, he/she considers it appropriate or necessary;

   vi.the reasonable remuneration and expenses of counselling/therapy be shared equally between the Mother and the Father;

   vii.leave is granted to the Independent Children’s Lawyer to provide a copy of the report by Dr X filed 18 December 2009 to the counsellor/therapist; and

   viii.the parties will ensure that K and they themselves attend all appointments with the counsellor/therapist at the times, dates and places nominated by the counsellor and/or the Independent Children’s Lawyer.

2. During the time K is with either parent, that parent shall:

   a.respect the privacy of the other parent and not question her about the personal life of the other parent;

   b.speak of the other parent, their family and friends, respectfully;

   c.not discuss Court proceedings with K or in her presence.

3. Should the child, J born … October 1993, express a wish to attend upon the Family Consultant, the Father will arrange such      attendance at such times as determined by the Regional Coordinator of the Court’s Dispute Resolution Service and the Family Consultant will provide such assistance with a resumption of J’s time and/or communication with the Mother as the Family Consultant deems appropriate.

4. Pursuant to Section 65 L of the Family Law Act 1975:

   a.compliance with these parenting orders is to be supervised by a Family Consultant Child Dispute Services of the Family Court of Australia Brisbane Registry;

   b.the Family Consultant shall give any party to these parenting orders such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of, the parenting orders;

   c.the parties shall do all such things, sign all such documents, attend all such appointments and ensure that K and/or J attend all such appointments with the Family Consultant as the Family Consultant deems appropriate;

   d.the Family Consultant provide a specific issues report to the Court concerning the progress of, and in relation to his/her intervention pursuant to these Orders, on or before a date to be advised by the Court.

5. The Independent Children’s Lawyer has liberty to apply upon giving seven (7)      days’ notice to the parties.

6. For the purpose of undertaking his/her role pursuant to Clauses 1, 3 and 4 of these Orders:

   a.the Family Consultant has permission to inspect the Court file and all documents related to this matter;

   b.the Family Consultant has leave to read any document produced on subpoena once permission to inspect has been granted to a party or the Independent Children’s Lawyer.

IT IS FURTHER ORDERED THAT:

1. The Mother’s application for interim parenting orders filed 16 March 2010 be adjourned for further hearing to 10.00 am on 14 July 2010 at the Brisbane Registry of the Family Court.

2. The matter be listed for trial for five (5) days commencing 10.00 am on
   15 November 2010 at the Brisbane Registry of the Family Court.

3. The Independent Children’s Lawyer is at liberty to issue subpoenae to:

   a.The Commissioner of Police Queensland;

   b.M School

4. Unless otherwise ordered, leave be granted to ALL PARTIES to INSPECT and the INDEPENDENT CHILDREN’S LAWYER ALONE to COPY documents produced pursuant to subpoenae, save in respect of any document of which a claim for privilege attaches and/or in respect of which confidentiality is claimed, in which case an application is to be brought before the Court to inspect such documents.

5. The Mother’s application for supervised time with K at a Contact Centre is adjourned for further determination at 10.00 am on 14 July 2010 at the Brisbane Registry of the Family Court.

6. Paragraphs (2) and (3) of the Father’s Application in Form 2 filed 31 May 2010 is dismissed.

7. The application by the Mother and the Independent Children’s Lawyer for
   Dr WN to prepare an educational assessment of J is dismissed.

8. Pursuant to s 62B and s 65DA(2), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

NOTATION:

To the extent possible, it is requested that for the purposes of these Orders, the Family Cnsultant be Mr C

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 1070 of 1999

MS SS

Applicant

And

MR AH

Respondent

REASONS FOR JUDGMENT

1. Ms SS is the mother of two children, J born in October 1993 and K born in September 1997.  Pursuant to Orders made by Buckley J in 2005 the children were to reside with the Father and the Mother was to spend time with the children for weekends and half school holidays.  The parties were to have joint responsibility for the children.

2. On 30 September 2008 for reasons I gave at the time, I made Orders on an interim basis that the Father have sole responsibility for the children and that the Mother’s time to be spent with the children was to be suspended until further Order.  There were also limitations placed on the ability of the Mother to communicate with the children.

3. On 16 March 2010 the Mother filed an application seeking orders in the following terms:

   “1. That the Independent Children’s Lawyer arrange for the child [K] born […] September 1997 to have supervised contact with the mother at a contact centre as soon as possible.  That this matter listed (sic) urgently before 25/5/10 as is ordered currently.

   2.   That the parties jointly agree to appoint Dr [WN] to educationally assess the child [J] born […] October 1993.  That such assessment be conducted as expeditiously as possible with the father to present the child as required by Dr [WN].

   3.   That the parties jointly agree the instructions and material to be provided to Dr [WN] within 10 days of such order being made.  In the event that agreement is not reached, the court to decide the issues to be determined and instructions to be provided to Dr [WN], upon submissions by the parties.

   4.   That the report of Dr [WN] be provided simultaneously to all parties and as soon as possible.  Cost of the report to be equally shared between parties.”

4. The Independent Children’s Lawyer Ms Kingston produced written submissions.  In that document she sets out the orders proposed on an interim basis by the Independent Children’s Lawyer.  They are in the following terms:

   “Interim time and communication orders

   UNTIL FURTHER ORDER:-

   1.Orders numbered 4 to 9 inclusive made by The Honourable Justice Barry on 30 September 2008 be discharged.

   2.The father will arrange [K’s] attendance upon the Family Consultant at such times as determined by the Regional Coordinator of the Court’s Dispute Resolution Service, AND:-

   a)the Family Consultant will assess in what manner [K’s] time and/or communication with the mother might be progressed;

   b)the Family Consultant will provide such assistance with a resumption of [K’s] time, and a progression of [K’s] communication, with the mother as the Family Consultant deems appropriate;

   c)at such time as the Family Consultant deems appropriate, [K] will commence spending time with the mother on weekends at times and in such manner as determined by the Family consultant at his/her sole discretion.  [K] will not spend time with the mother other than as approved by the Family Consultant or as agreed between the parties in writing;

   d)should the Family Consultant so recommend, [K] will attend upon a counsellor or therapist AND:-

   (i)the counsellor or therapist will be as nominated by the Independent Children’s Lawyer in consultation with the Family Consultant, or as ordered by the court;

   (ii)the counsellor or therapist will undertake all such therapy or counselling with [K] that the counsellor/ therapist considers appropriate;

   (iii)the counsellor or therapist will include the mother and father or other significant persons in therapy and counselling as the counsellor/therapist considers appropriate;

   (iv)the counsellor or therapist is authorised to discuss the counselling with the Independent Children’s Lawyer;

   (v)the counsellor or therapist shall not be required to provide a report of the counselling unless, in the counsellor’s opinion, he/she considers it appropriate or necessary;

   (vi)the reasonable remuneration and expenses of counselling/therapy be shared equally between the mother and the father;

   (vii)leave is granted to the Independent Children’s Lawyer to provide a copy of the report by Dr [X] filed 18 December 2009 to the counsellor/therapist; and

   (viii)the parties will ensure that [K] and they themselves attend all appointments with the counsellor/therapist at the times, dates and places nominated by the counsellor and/or the Independent Children’s Lawyer.

   3.    To the extent possible, it is requested that for the purposes of these Orders, the Family Consultant be Mr [C].

   4.    [K] will have email, postal and telephone communication with the mother at all reasonable times.

   5.    During the time [K] is with either parent, that parent shall:

   e)Respect the privacy of the other parent and not question her about the personal life of the other parent;

   f)Speak of the other parent, their family and friends, respectfully;

   g)Not discuss Court proceedings with [K] or in her presence.

   6.    Should [J] express a wish to attend upon the Family Consultant, the father will arrange such attendance at such times as determined by the Regional Coordinator of the Court’s Dispute Resolution Service and the Family Consultant will provide such assistance with a resumption of [J’s] time and/or communication with the mother as the Family Consultant deems appropriate.

   7. Pursuant to Section 65 L of the Family Law Act 1975:-

   (a)Compliance with these parenting orders is to be supervised by a Family Consultant Child Dispute Services of the Family Court of Australia Brisbane Registry;

   (b)The Family Consultant shall give any party to these parenting orders such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of, the parenting orders;

   (c)The parties shall do all such things, sign all such documents, attend all such appointments and ensure that [K] and/or [J] attend all such appointments with the Family Consultant as the Family Consultant deems appropriate;

   (d)The Family Consultant provide a specific issues report to the Court concerning the progress of, and in relation to his/her intervention pursuant to these Orders, on or before a date to be advised by the Court.

   8.    The Independent Children’s Lawyer has liberty to apply upon giving seven (7) days’ notice to the parties.

   9.    For the purpose of undertaking his/her role pursuant to Clauses 2, 6 and 7 of these Orders:-

   (a)The Family Consultant has permission to inspect the Court file and all documents related to this matter;

   (b)The Family Consultant has leave to read any document produced on subpoena once permission to inspect has been granted to a party or the Independent Children’s Lawyer.

   Procedural Orders

   10.    The mother’s application for interim parenting orders filed 16 March 2010 be adjourned for further hearing, and the matter be listed for Trial Directions including Orders for the preparation of a Family Report, on a date to be determined by the Court.

   11.    The matter be allocated dates for the final stage of trial for five (5) days at the earliest possible time.

   Educational Assessment of [J]

   12.    The Independent Children’s Lawyer is granted leave to arrange a psycho educational assessment of [J] by Dr [WN], and to file a report by Dr [WN] in relation to his assessment.  For the purposes of the assessment/preparation of the report:-

   (a)The father will arrange [J’s] attendance upon Dr [WN] as advised by the Independent Children’s Lawyer;

   (b)The mother and the father will do all such things and sign all documents necessary to facilitate the preparation of the report;

   (c)The mother and the father will pay in advance Dr [WN’s] fee for conducting the assessment and preparing the report, being the sum of $1200.00 plus GST ($600.00 plus GST each);

   (d)The parties will not provide Dr [WN] with documents or information other than through the Independent Children’s Lawyer and as approved by the Independent Children’s Lawyer;

   (e)The Independent Children’s Lawyer will provide the instructions to be given to Dr [WN] and provide Dr [WN] with such documents as he advises he requires to conduct the assessment;

   (f)Dr [WN’s] report will be released to the Independent Children’s Lawyer;

   (g)Dr [WN] will not be required to undertake any work in relation to the assessment and/or report until he has received payment from both parents pursuant to sub-paragraph (c) hereof;

   (h)To the extent that the exception provided for in s 121(9)(a) of the Family Law Act 1975 or the other provisions of that subsection do not otherwise authorise same, the Independent Children’s Lawyer shall have leave to provide all such documents and information relevant to these proceedings as the Independent Children’s Lawyer might consider appropriate and that are reasonably required by the educational psychologist to conduct his assessment and provide the report in respect of [J’s] educational needs.

   Notation:- It is noted that as part of the assessment process, Dr [WN] will firstly explain the nature and purpose of the assessment, as detailed in Clause 4 of Dr [WN’s] affidavit filed 15 March 2010, to [J].  It is further noted that Dr [WN] may, in his professional judgement, determine that it is not appropriate to proceed with the assessment.

   Issue of Subpoenae

   13.    The Independent Children’s Lawyer is at liberty to issue subpoenae as she considers appropriate and in particular to:-

   (a)   The Commissioner of Police Queensland;

   (b)   [M School] (update previous subpoena).

   14.  Unless otherwise ordered, leave be granted to ALL PARTIES to INSPECT and the INDEPENDENT CHILDREN’S LAWYER ALONE to COPY documents produced pursuant to subpoenae, save in respect of any document of which a claim for privilege attaches and/or in respect of which confidentiality is claimed, in which case an application is to be brought before the court to inspect such documents.”

5. The Father filed a response document in which he sought orders in the following terms:

   “1.The Applicant Mother’s Application in a Case filed 16 March 2010 for interim parenting orders be adjourned to be heard at the final stage of trial.

   2.The Court allocate the earliest possible dates for trial directions for the hearing of the final stage of trial.

   3.The interim time and communication orders numbered 1 to 5 inclusive and the educational assessment of [J] proposed by the Independent Children’s Lawyer be dismissed or alternately be adjourned until the hearing of the final stage of trial.

   4.The previous consent orders providing for Mr Mark Ryan of Ryan Kruger Lawyers to hold the passports of the children, [J] and [K] be discharged, and that the passports ordered to be delivered exclusively to the Father’s sole care.

   5.The Father be granted authority to be the sole signatory authorised or required to obtain and/or renew the children’s passports as required from time to time.”

6. The parties each relied on an affidavit filed with the application and response documents respectively.

Background

1. The Mother has not spent time with her son J since about mid-2006 but she continued to see K until the Orders of 30 September 2008. 

2. As noted above, the Mother’s time with K was suspended on 30 September 2008.  Both children had been interviewed by the Regional Coordinator of the Court’s Dispute Resolution Service and the decision given at that time was in accordance with the wishes expressed by the child as reported by the Family Consultant.

3. In the normal progression of this matter a full Family Report would have been ordered in which the dynamics of the relationship of the children with their parents could have once again been evaluated.

4. In the Orders of 30 September 2008 I allocated dates for final hearing in April 2009.  On my recollection, those dates were vacated at the request of the Mother as she had lodged an Appeal and wished to pursue her Appeal.

5. This matter had had two previous lengthy hearings, one before Justice May in the year 2000 and a twelve day trial before Justice Buckley in 2005.

6. There was no pressure from the Father to set the matter down for a third final hearing as he had the Orders he sought, albeit on an interim basis.

7. The Mother had the right to press on to a final hearing where the major issues, K’s wishes, could be fully ventilated, but she elected not to do so.  The view that I took is that I cannot force a party to go to trial if that party is stating expressly he or she is unwilling to do so.

8. On my understanding the Full Court indicated dates of trial in November 2009 but again the Mother declined on the basis she wanted to file her application for leave to appeal to the High Court.

9. At page 10 of her written submissions the Mother notes:

   “At the hearing on 03 December 2009, it was agreed between the parties that it would be inappropriate for the matter to proceed further until the Full Bench decision had been received.  His Honour to the best of our recollection indicated that he agreed with this view and listed the matter for mention on 25 May 2010.

1. The stage has now been reached where one and a half years after the interim determination, the matter is still under Appeal and a final determination is some time off.  I have no specific recollection on 3 December 2009 endorsing the course of delaying the allocation of a date for final hearing but it is my usual practice to set matters down for hearing only if at least one of the litigants is seeking same.

2. I propose to set the matter down for hearing in December 2010.  The Independent Children’s Lawyer as a party to these proceedings adopts such a course and I see merit in it.

3. If I be wrong in my assumptions that it is the Mother who requested the dates of trial be vacated in April and November 2009 it does not greatly matter.  The reality is neither party was approaching the Court for dates to be given for a final hearing.

4. The matter was progressed by the preparation of a psychiatric report prepared by Dr X.  That report is annexed to Dr X’s affidavit filed 18 December 2009.

5. I turn to consider aspects of Dr X’s report.

Dr X’s report

1. Dr X’s methodology is to interview the parties and to write his report making what he terms diagnostic issues (provisional).

2. He then reads the material which has been forwarded to him and makes comments thereon and delivers his recommendations.

3. At pages 37 and 38 he highlights his summary of the parties’ personality vulnerabilities and delivers his recommendations.

4. This part of Dr X’s report is quoted in the written submissions of the Independent Children’s Lawyer but for completeness I incorporate the doctor’s observations into this determination:

   Page 38:

   “An indicator of personality vulnerabilities in the mother is that she takes absolutely no responsibility for the awful situation she finds herself in such that she has no contact with her two children and they apparently do not desire contact although with some ambivalence.  She has no insight into what part she may have played in giving rise to this unfortunate situation but rather she sees herself as a victim of what others have done and she includes the Family Court in her projections.  Interestingly while she is intensely critical of Mr [A], Psychologist, and his use of the term “parental alienation syndrome (PAS)”, this is in fact what she is alleging is occurring currently to explain the gulf between herself and the children.

   …

   It seems to me that a critical question before the Court is whether the current unsatisfactory situation where the children are not seeing their mother and apparently do not wish to see her can be ameliorated in any way for their benefit and indeed the mother’s benefit.

   Given her lack of insight, it is unlikely that the mother’s problematic personality traits can be ameliorated through psychotherapeutic endeavours, however this does not mean that skilled psychotherapeutic intervention cannot repair the relationship between mother and children to some extent.

   [J] is now at an age where he is unlikely to respond to any Court ordered contact in a favourable manner.  The situation with [K] may be different.  It is possible that a family therapist could attempt to bring the two together in a controlled and safe setting.  This may involve some preparatory work with [K] by the therapist before a re-introduction to her mother in a therapeutic setting where there are limits put on the mother’s behaviour and any concerns addressed.  This could progress through to supervised contact for a period of time and then unsupervised contact.

   Whether such an endeavour will work is uncertain.  What I am proposing requires at least a modicum degree of insight in the mother and a commitment to improving the situation for her and the child as a primary objective as against seeking a vindication of her views and positions.

   [K] is now at an age where having a mother will become increasingly important for her optimal psychosocial development.  What I am proposing is not without risk, the most significant one being that the child will experience yet another disappointment with a parent.  The Court would need to be assured that the mother gives a commitment to the process for the sake of the child, if not for her own sake.

   If a reconciliation could be brought about between [K] and her mother, [J] may willingly follow.”

Mother’s Application for Supervised time at a contact centre

1. I am not minded to make an Order for supervision at a Contact Centre until the wishes of K are known.  The Mother does not particularise where or when the supervised time should take place but I assume for present purposes it would be at the V Contact Centre and would be for the maximum time permissible.

2. At paragraph 25 of my reasons for judgment of 30 September 2008 I noted K had reported to the Family Consultant that when she had spent time at a Contact Centre with her father prior to Buckley J’s 2005 determination:

   “People stared at her”.

   The inference to be gathered was K felt unsettled in a Contact Centre environment.  I would expect that this level of embarrassment would generally increase as a child matured.

3. The Mother does not present any emails passing between K and herself where the child is expressing a wish to see her mother in a Contact Centre environment. 

4. To my mind the far preferable course is to adopt the proposal of the Independent Children’s Lawyer as set out in paragraphs 2(a), (b) and (d) quoted above.

5. Almost two years have elapsed since the Mother’s time was suspended.  Mr C, a Family Consultant who is familiar with the children in this matter can interview K and report back to the Court what she tells him and what observations and recommendations he makes in relation to her comments.

6. I am reluctant to make an order in terms of proposed paragraph 2(c).  To my mind to make an order in such terms is to delegate the Court’s power to a Family Consultant without the views of either parent being further heard. 

7. It would be beneficial for K if the parents could agree to abide by any recommendations of the Family Consultant as relayed by him after interviewing K, but having regard to the past history of this matter such an outcome would be unlikely.

8. It is likely a Court would place considerable weight on firstly the child’s expressed wishes, and secondly the Family Consultant’s recommendations.

9. As the Judicial Officer with the charge of this matter it would be in my view all to the good if the Mother’s unsupervised time with K could be reinstated as expeditiously as possible.  This may necessitate the Mother meeting with K in the presence of Mr C and providing an assurance if unsupervised time returns she will not denigrate the Father and will not place any pressure on the child to live with her.  The Mother may deny she has ever engaged in such behaviour but on reports by the Family Consultant almost two years ago that is the child’s perception.

Independent Children’s Lawyer’s Proposal to Discharge Paragraphs 4 to 9 of the Orders of 30 September 2008

1. In her submissions the Independent Children’s Lawyer notes:

   “It is the Independent Children’s Lawyer’s position that this matter should proceed to the final stage of trial at the earliest possible time, and that pending final hearing, interim orders be made which are aimed at progressing [K’s] time and communication with the Mother.”

2. I accept without hesitation the basis upon which this submission is made.

3. Later in the submission it is noted:

   “There being nothing untoward to the Independent Children’s Lawyer’s knowledge in the emails the Mother has sent [K] in response to emails sent by [K] following the September 2008 hearing, the Independent Children’s Lawyer considers it appropriate that the restriction on the Mother initiating communication with [K] be lifted and that the Mother be permitted to initiate telephone, email and postal communication with [K].”

4. I have concerns about discharging paragraphs 4 to 9 of my Orders.  The preferable course in my view is to set the matter down for a hearing on 14 July 2010, to order the Family Consultant to interview K (and J if he so wishes) and to direct the Family Consultant to prepare a brief report to the Court detailing his recommendations based on his interview and assessment of K.

5. The Family Consultant may also monitor any time between the Mother and K in terms of the s65L order sought.

6. There is no prohibition on the Mother communicating with the children by post.  The Mother’s evidence is that J phones to speak to her and leaves a message to call him back.  Because of the terms of paragraph 5 of the Orders of 30 September 2008, she is not able to do so.

7. I would have thought a letter to J requesting he phone her at a specific time on a given date would circumvent this difficulty.  In the alternative once K has emailed her she is entitled to respond to K and to mention similar details about J making a phone call.

8. It would seem from Dr X’s report that because the Mother is not allowed to record any phone conversations with the children, she does not take phone calls.  I fail to understand why she would not answer a phone call from J simply because she is prohibited from taping same.  If she wished to she could make detailed notes of the conversation as it progresses.

Request for Educational Assessment of J

1. Dr X in his report at page 37 notes:

   “The Mother is absolutely convinced that there is something seriously wrong with her son, [J], and that this needs treatment.  She comes from a very highly educated and presumably highly intellectually endowed family, and it is as if she is unable to accept that a child of hers could be less intellectually endowed and perhaps “average”, unless there was something seriously wrong with him such an illness that can be “cured”.  I note that some of her comments about [J] in the documentation are not just negative but quite disparaging.  Moreover her difficulties in dealing with him and his behaviour are attributed to illness or the fathers influence.  She does not seem to have a capacity for self-reflection with respect to how her own attitude and behaviour may contribute to problematic situations between herself and her son.”

2. The Mother’s application for the educational assessment is supported by the Independent Children’s Lawyer as noted from the draft orders quoted earlier.

3. Apart from the affidavit of Dr X the Independent Children’s Lawyer has for the purposes of the present determination relied on an affidavit of Dr WN and an affidavit of Ms YN.

Affidavit of Dr WN

1. Dr WN is an Educational and Developmental Psychologist providing independent clinical school and home based assessments and consultation services to support individuals aged three years through to adults.

2. At paragraph 4 of his affidavit he deposes:

   “4.I have been requested by the Independent Children’s Lawyer for [J] born […]/10/93 to provide information about the preparation of a psycho educational assessment of [J].  The assessment would update what is known about [J’s] overall learning potential (i.e. intelligence), assess in a standardised way his current core academic skills, undertake clinical observations (i.e. during the assessment) and use the results to formulate advice and information to assist [J] if necessary.”

3. In his affidavit he notes that the assessment would take three to four hours for J to complete.

Affidavit of Ms YN

1. Ms YN is the Head of the Senior School at M School, the school attended by the children.

2. She annexes to her affidavit a document headed, “Statement of Advice with Respect to [J]” appended to a letter to the Independent Children’s Lawyer on 14 August 2009.  The letter is in the following terms:

   “Educational and Developmental Assessment

   [M School] does not believe that [J] should be assessed by an Educational and Developmental Psychologist.

   [J] continues to participate in the normal and usual academic assessment programme; National Competitions such as Mathematics; the Year 9 NAPLAN Literacy and Numeracy Tests.  The Senior School of [M School] issues four (4) Reports each year: two are Progress Reports issued at the end of Terms 1 and 3, and two are Profile Reports issued at the end of Semesters 1 and 2.  The Senior School also engages in our own internal testing in particular Years, as we seek to understand the learning potential of all our students.

   One of the internal testing measures we use is the Structures of the Intellect (S.O.I) Test.  When [J] was in Year 7, his mother, [Ms SS], arranged for [J] (and [K]) to be given the S.O.I Test, as private clients of Mr [I].  In this context, both children received comprehensive reports.  All students who are coming into Year 8 in the Senior School sit the S.O.I. Test, as a matter of course.  All of our Year 10 students will again sit the S.O.I. Test towards the end of their Year 10 year.  As a matter of course, [J] will thus be sitting for the S.O.I. Test during the second week of Term 4.

   We do not believe there is a clear academic benefit for [J] to be assessed by an Educational and Developmental Psychologist

   ADHD Assessment

   We also understand that [J] has not taken medication for ADHD since ceasing in 2005.  From commencement of Year 8 to the present, we have not noticed deterioration in [J’s] behaviour and academic performance.  Indeed, we observe that [J’s] behaviours in the Yard and in Classes have improved over this period of time, as is usual for boys and girls growing up.

   [M School] does not believe that [J] should be again assessed for ADHD.”

3. The latest school report for J was produced as exhibit 2 in the current proceedings.  Under the heading “Comments” the form teacher has noted:

   “[J], the theme for Semester One is ‘Who am I?’ and ‘Where am I going?’  By the end of Semester One you will have completed all of the units which include developing a Personal Mission Statement and Careers Awareness; Core Skills Introduction/ Food for Thought; Sexuality and Personal Relationships.  Through your participation in these topics, it is hoped that you have continued to develop the skills which make you a more independent person.”

4. Whilst the Father did, for a period of time during the hearing of the Appeal, agree to an educational assessment he has since resiled from that position.  I note the school does not support such an educational assessment.  The view that I take is that the school is best placed to make recommendations whether such an assessment would be beneficial.

5. There is a risk that if an assessment is done which reveals grounds for negative observations it could be very damaging to J’s self esteem.

6. I do not see that the ordering of an educational assessment is necessary at this point in time and do not propose to make orders as sought.  A further basis for declining to make an order in these terms is that it would be problematic that J would comply with a Court direction made without any form of consultation with him to obtain his permission.

7. As I have previously noted I wholeheartedly agree with the development to have Mr C re-interview K with a view to making progress in re-establishing a relationship between Mother and daughter.

8. I find the Mother’s application for leave to Appeal to the High Court somewhat puzzling.  I do not for one moment question her right as a citizen to lodge such an application.

9. I am not familiar with the submissions made on her behalf or the orders she requests the High Court to make.  However, I would have thought it likely the High Court would either dismiss the application or if leave to Appeal is granted and the Appeal is successful, the best outcome the Mother could hope for is a reinstatement of the 2005 Orders of Buckley J, but they would only operate for a period of some five to six months before the Court embarks, once again, on a final hearing to be determined on the evidence before the Court, at that point in time, which would include the assessment by Mr C together with an updated Family Report.

Miscellaneous Matters

1. The Mother notes at page 25 of her written submissions that Senior Counsel appearing on her behalf has confirmed his understanding that Appeals

   
   

   NA 95/08 and NA 51/09 did not “fall away” during the Appeals hearing and remained the subject of determinations by the Full Court.

2. The Full Court noted at paragraph 72 of the majority judgment:

   “We originally had before us three Appeals against Orders made on
   29 September 2008, 30 September 2008 and 9 June 2009.  By the time of the conclusion of argument Appeal NA 95/2008 and Appeal NA 51/2009 had fallen away, leaving only Appeal NA 94/2008 which concerned the Orders of 30 September 2008.”

3. This is not a matter for me to consider.  It is a matter entirely within the province of the Full Court but I would have thought the terms of paragraph 72 were quite clear.

4. If the Mother wishes to apply to the Full Court to prosecute her further Appeals she is at liberty to do so.

Other Orders Sought By Independent Children’s Lawyer

1. It is in the interests of moving this matter along that I propose to give leave for the Independent Children’s Lawyer to issue a subpoena and to make Orders that such subpoena material can be inspected by the parties.

2. The procedural orders sought by the Independent Children’s Lawyer are appropriate save that I will insert specific dates for the further hearing of this matter.

Father’s Application Seeking Orders in Relation to the Children’s Passports

1. The Father response was only filed by leave on the date of the hearing.  The Mother had not had a chance to respond.

2. She has now had an opportunity and has forwarded correspondence to the Court.

3. A Registrar responded to her advising that the proper procedure was to make her position apparent in open Court rather than through correspondence.

4. I will hear submissions on the adjourned date in relation to the passports and I expect to deliver a determination on this aspect at that time.

5. For the above reasons orders will issue in terms as set out on page 2 hereof.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  4 June 2010