Streeton & Richards

[2007] FamCA 24

FAMILY COURT OF AUSTRALIA

STREETON & RICHARDS [2007] FamCA 24

FAMILY LAW – CHILDREN -  Release of Subpoena

APPLICANT: Mr Streeton

RESPONDENT: Ms Richards

INDEPENDENT CHILDREN’S LAWYER: Ms Moran

FILE NUMBER: NCF 62 of 2005

DATE DELIVERED: 22 January 2007

PLACE DELIVERED: Newcastle

JUDGMENT OF: MULLANE J

HEARING DATE: 22 January 2007

REPRESENTATION:

THE APPLICANT: The father in person

SOLICITOR FOR THE RESPONDENT: Ms Gillard of Messrs Thomas Mitchell Partners

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

Ms Moran of  Coast Law

Solicitors

Orders

1. Pursuant to sub-s 10D(3)(b)(ii) of the Family Law Act this Court consents to Relationships Australia disclosing the communications by the children and the parents in relation to counselling of the children and the parents regarding the children's problems by producing its records in answer to the subpoena for production dated 11 January 2007;

2. Pending further order, each of the parents is restrained from discussing any proceedings between the parties with any of the children or denigrating the other parent in the presence or hearing of any of the children;

3. The father's application filed 1 December 2006 is refused and dismissed;

4. The father must pay to the mother's solicitors within 28 days a sum of $543 towards her costs of opposing his application.

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCF 62  of 2005

MR STREETON

Applicant

And

MS RICHARDS

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. These are proceedings about three boys, D who is seven, C who is nine and M who is 12.  The issue is about whether an order SHOULD be made requiring Relationships Australia to comply with a subpoena for production of records in relation to counselling that was provided to the children, at least, but possibly also the parents, in relation to psychological problems of the children. 

RELEVANT LAW

1. Section 10E of the Family Law Act provides that any evidence of communications made in family counselling is not admissible in evidence in a Court. That provision is relied upon by Relationships Australia in responding to the subpoena, but of course it is not relevant. The issue in terms of production of documents is a different issue and that is dealt with by s 10D which provides for confidentiality of communications in family counselling and prohibits, in sub-s (1), the disclosure of such communications made to the counsellor while conducting the counselling.

2. However, sub-s 10D(3) of the Act provides that a family counsellor may disclose a communication if consent to the disclosure is given by, where the person is over 18 that person, and where the person is not over 18 by each person who has parental responsibility, or by a Court. 

DISCUSSION 

1. The mother and the Independent Lawyer for the children both seek that an order be made to that that information can be made available, certainly to the Court expert, Dr F, a psychiatrist who is preparing a report in relation to the family.  The father was initially opposed to that but he says that his concern is not about Dr F having the information but about the information being disclosed to the parents, because he says that the children are relying upon the confidentiality of those discussions and would be seriously disturbed by the documents being made available to the parents.

2. It seems unlikely that if Dr F relied upon the information, in the long term the parents would be refused access to that information.  But it is possible that the information can be made available to Dr F at this stage without the parents having access to it and that the parents would then be able at any stage to seek access if they want it, but might not need to.  It may be that Dr F's report will encourage the parties to reach some agreement to resolve the proceedings without the matter having to go to the stage of the parties having to have access to the records of the counselling.  However, that is another issue. I  bearing in mind that it is likely that if they do not resolve the proceedings at that stage, the parents would probably get access to the material.  One must look at the matter in that context, because of the possible adverse consequences for the children. 

3. I think the information is probably critical for the report and critical in other terms, notwithstanding that it may also be available to the parents.  I say that because of the level of conflict between the parents and the context in which the children have found themselves for such a long time of being exposed to that conflict.  It seems that the pressure that they are under is considerable and that it is likely that their reported wishes in any context where the children believe the parents would have access to that information are probably unreliable, given the sorts of pressures they are under.

THE RELEVANT BACKGROUND

1. The parents were in conflict while they were living under the same roof with the children for at least two months before they separated and, it appears, for almost three and a half years since then while the children were residing in a week about shared care arrangement.  The father has had a policy, and has no hesitation about it, of discussing the parental conflict and the proceedings between the parents with the children and he says that he considers that the children's expressed wishes should prevail regarding residential arrangements and also even as to whether the records of the counselling for psychological problems should be available to the parents.

2. The children have been exposed now to a very high level of conflict between their parents for about four years.  Their relationship is characterised by obsessive behaviour by both parents in relation to what they perceive as the wrongs done by the other parent to them or to the children.  Both parents find it difficult to discuss their children when I ask them to talk about their children, without repeatedly making negative statements about the other parent.  Each of them has a lack of trust of the other parent.  Each of them has a total lack of respect for the other parent.  This provides the children with a context where their parents treat each other without even the cordiality and politeness that they would extend to a stranger.

3. On 1 September when the first day of the hearing occurred, the father said that the children have been constantly put under stress since the shared care arrangement was put in place.  And notwithstanding that, of course, that is the arrangement he wants to be permanent.  The father's evidence also was that when the mother went away for a week and left the children in the care of the maternal grandmother, D's asthma became worse.

4. The mother's evidence is that the children are very unhappy and insecure.   This is what she told the Court on 1 September 2006.  She said that D's asthma has been aggravated by the Court cases.  She said that M is trying to look after everyone including her and that she recognises that that is inappropriate.

5. The family consultant who was present and heard and saw the parties on 1 September 2006, gave evidence that day too and answered various questions.  Some of the relevant parts of his evidence were that both the parents agreed that the children are suffering, both agree that they want the children to be happy and stress free, something needs to change as the children are not heading towards that sort of result, but are heading to something much less than optimal.  He said that with D's asthma, the father needs to be involved in that care and the mother has been making plans with the GP without involving the father.

6. He said that both the parents demonstrate difficulty in their parenting. One example he raised is that the father told the Court, “I have not caused any of this conflict.”  The Family consultant testified “It is not encouraging to say that.  If a parent takes the view that they have not caused any conflict, because the inference is that his view is that the mother is responsible for everything.  Both the parents need to step back or the long-term outcomes for these children are likely to be very, very poor.”

7. That advice was given four months ago and today, although the mother is not here, I certainly have no reason for any optimism at all, and in fact I am much more concerned at the father's position because he certainly has not changed in that view.

8. Mr C, the consultant, asked the question:

   How prepared are each of the parents to change their own view if they believe that the children's view is contrary to their own?

   That is another issue that is of particular concern in relation to the confidential communications that the children made with the counsellor, particularly in view of the fact that the children did know, and were assured by the father before they went, that the communications would be confidential.

9. He said that the mother has made allegations of physical abuse by the father during the marriage.   Should there be a psychiatric assessment of the family? He was asked and he said "Yes, there should be an expert witness".  He recommended a Parenting After Separation course be attended by each of the parents.   The mother has complied with an order that was made and the father has not yet commenced the course.

10. The Family Consultant was asked about the effects on the children of the parents' conflict in a general term and he said that one of the problems seems to be that M appears to be taking on an inappropriate role as one of the adults.  He said:

    I would be very surprised if all of the children don't feel involved for what's occurring.  They all seem to be struggling.  The younger two children were uncomfortable without their older brother being present.  Something is going on for all three children.

11. He was asked about the father talking about the issues between the parents with the children and the effect on the children.  He said:

    Despite any parent's best efforts, the fact that they are involved in the dispute it would be incredibly difficult to provide facts.  It is a very emotional issue.  I would encourage both parents to understand that they cannot provide facts in an unemotional way.  The children need to know facts, but at a child level.  Any issues of blame or causation are not appropriate for children and more of a logistic timetable awareness, rather than we're going to Court, this is the findings or this is who is responsible, that is not appropriate.  He said that the elder child should not be exposed to adult issues .

12. And notwithstanding that advice, the father's view is that that is not true and that the children should be involved in this conflict land given almost complete information about it. 

13. Mr C was asked about M and about reverse parenting of his mother.  He said:

    There is certainly a very strong risk it may occur. 

14. He said that he could not say though whether it is occurring, but he said it is very likely that he does feel responsibility for his brothers.  He said:

    [M’s] normal maturation is likely to be interrupted.  It is up to the parents to provide the environment for ime to be a child.  Not just telling him he is a child.  He is entering a phase of his identity where he is exploring his own self.  It is a difficult time for teenagers.  They need to feel safe to explore their own identity, free of looking after younger children or parents.

15. Mr C then was asked about possible damage to the children's self-esteem.  He said :

    There has been three years of parental conflict and poor communication and role modelling.  The relationship between the parents prior to the separation was not ideal either.  The effect of that can be quite traumatic, very poor outcomes, substance abuse, school attendance poor and poor progress at school and petty crime.  All of these are activities to which teenagers as susceptible and the outcomes for these boys will be worse.  Rebellious behaviour and other quite extreme forms of that can be caused by the problems that are likely to be engendered to

    
    

    self-esteem by the ongoing exposure to their parents' conflict.  It also creates a significant conflict for children when one parent denigrates the other parent.  It denigrates the children too.  Some children handle this by being extremely hostile to one of their parents.  In terms of parents being role models, the children have observed the bad relationship and that that will have a very direct effect on them as adults in their behaviour.  The parents are their primary role models and they will be learning conflict resolutions from their parents and what they have learned in the past few years will affect them in the future.  If however, the parents are able to behave and manage their relationship properly, then the children will be able to learn from that better behaviour.  But if the parents' approach is to badger, shout and criticise someone, then that is the way the children are learning to go.  They are learning that is the only way to go.  The approach of totally ignoring each other and refusing to discuss issues, sends the wrong messages to the children about conflict and conflict resolution. The children need to see their parents working together and not against each other.

16. He was asked about the effect on the children in relation to their education and their school, he said: 

    It may very well be affecting them now.  It is very difficult for children to function in the context of a high level conflict.

    which he described these parents' relationship has been.  He said it is a protracted conflict.

17. He talked about the mother's depression and said that is to be applauded for seeking medical care.  He said that M would be aware of her general feelings and wellness of both parents and that the children would all be able to pick up on each of the parent's emotional wellbeing.  He was asked about M feeling responsible for his mother's health, he said:

    That at nearly 12, he may express a wish to live with his mother that is unreliable.  Any expressed wish from [M] could be the result of several factors.

18. He said that the parents' relationship needs to be addressed and the conflict between the parents must change.  The Independent Children's Lawyer asked him about C wanting to speak with her on her own and he said that his requests suggest that C was confident to express a view, but he may feel that he doesn’t need his elder brothers protecting him.  He said that there will also be concern that C might have in mind that his two elder brothers would report to one of the parents what C said if they were present.

19. The family consultant was asked about the effect of the father taking M to the police station to report his mother for allegedly stealing his mobile phone.  He said that would be disastrous.  He described it as causing kids to dump on a parent.  He said:

    The boys are probably highly attuned and hypersensitive to communications because they are aware that the potential for conflict is always there.  It would be disastrous for them if they boys perceived their contact with one parent is frustrated by the other.  They should not be placed in that position.  It is quite healthy for children to be in conflict with their parents, it is part of adolescence.  But where the children are walking on eggshells, such as these children are, and they cannot communicate their true feelings, then they will act out.  In their homes they are restrained and they are not able to express themselves.

20. He said that Parenting After Separation should gives parents a gain in their insight and the position of the other parent and the position of the children.

21. Mr C, testified that it is be common ground that both the parents and two of the children had suffered depression during the period of the parental conflict. 

22. I am satisfied in the circumstances that this is a case of extreme conflict between the parents.  I am satisfied that the children have been extensively involved in the conflict, to a level that has caused them considerable stress and exposed them in continuing conflict of loyalties to their parents where the decisions they have to make about what they say in each household can involve deciding whether to express a view that is disloyal to the parent to whom it is addressed and that has been continually happening over at least the period of three and a half years since the parents separated. 

CONCLUSIONS

1. It seems likely that any view that was expressed by the children to the report writer at this stage have probably been expressed on the basis that the children know that those views have not been confidential and are likely to be revealed to the parents by the report.  That raises a very important issue then that the important value of the views the children may have expressed to the counsellor at Relationships Australia arises from the fact that the children were assured that those views would be confidential.  The children were then, more likely, particularly if they were interviewed separately, to express views that accord with their state of mind, rather than the views that they would see as suitable for consumption by one of their parents.

2. In the circumstances, I think the children's interests in the proceedings require that the material in the Relationships Australia file, particularly the statements by the children, be made available to the Court expert.

   RECORDED   :   NOT TRANSCRIBED

3. Because of the history that I have referred to earlier and the ongoing exposure of the children now for nearly four years to a conflict between their parents which is a high level of conflict and totally destructive for the children, it is appropriate that the parents be restrained to stop them talking to the children, involving them in litigation by talking to them about the litigation or involving them in the conflict by the parents making derogatory statements about each other to the children or in the presence or hearing of the children.  There should therefore be an order restraining the parents and that is in the best interest of the children that the order be made.

   RECORDED   :   NOT TRANSCRIBED

FATHER’S APPLICATION

1. There is an application by the father for removal of the Independent Children's Lawyer appointed to represent his three sons in the proceedings.  The father filed his application on 1 December 2006 and also a supporting affidavit setting the grounds on which he sought the order. 

GROUND 1

1. The first of those grounds is that from 1 September 2006, the Independent Children's Lawyer took over two months to organise a list of possible single experts for the case.  I do not know when the issue of single experts first was raised.  I think it was raised on 1 September 2006 and that at that time, the Independent Children's Lawyer was to seek approval from the parties as to a single expert.

2. There was subsequently a submission by the lawyer offering the appointment of Dr Q.  That was rejected by one or both of the parties and I am not sure of when that happened.  The evidence does not disclose.  Subsequently, the Independent Children's Lawyer submitted the details of five lawyers after considerable difficulty getting replies from these lawyers and that was done on 6 November 2006.  In the meantime, other things were happening.  Just shortly prior to 1 September 2006, within two days, the Independent Children's Lawyer interviewed the children.  I am not satisfied on the material there that there was an unreasonable delay given that there were difficulties obtaining a response from the experts.  I think it was the best part of a month delay when the proposed experts, the second group that is, not Dr Q, but the second group had to be followed up to get responses from them after nearly a month.

GROUND 2

1. The second ground is that on 21 November 2006, the Independent Children's Lawyer delayed the proceedings by over three hours because she omitted to send a letter of 6 November 2006.  I am not satisfied that that happened.  That does not seem to be the record.  In fact quite the contrary.  Notwithstanding that the father will not see it this way, the only evidence of whether the letter was sent or not is the evidence of Ms Moran.  Her evidence is that it was sent.  She produced a copy of the letter, it is address apparently correctly to the husband at his address and the husband seeks to have the Court accept that it was not sent because he says he did not receive it.  He may not have received it, but that does not prove that it was not sent.  I find on the balance of probabilities that the letter was sent and it was not received by the father.

1. I am not satisfied there was any issue then in relation to the responsibility of the Independent Children's Lawyer because of any delays on 21 November 2006 resulting from the father not receiving the letter of 6 November 2006. 

GROUND 3

1. He says that one of the grounds is the Independent Children's Lawyer failed to attend personally on 21 November 2006.  She did not attend personally and in the circumstances where the father had not received the letter of 6 November 2006, there was considerable consternation.  The father made the submissions aggressively and also expressed his anger at the Independent Children's Lawyer at what he considered was bias on the part of the Independent Children's Lawyer, although today, when I see his application, there does not seem to be any evidence to suggest there was any bias, notwithstanding the allegation that he made in Court on 21 November 2006.

2. However, regarding the delay in the proceedings; there was a list, the matter was listed at 9.30 am, and it was reached at 9.35 am.   I think it was the first matter in the list.   When it was reached, the main problem was not that the father had not received the letter of 6 November 2006, but that the Independent Children's Lawyer was not there, so the proceedings were delayed.  The parties were sent outside once the agent for the Independent Children's Lawyer arrived at 10 am, and had discussions and later reached agreement.  Consent orders were made.

3. One would incline to the view given the father's presentation, the history of the matter, the level of conflict that has gone on between these parents and the sort of issues that have been raised, that the Independent Children's Lawyer would be very concerned to attend Court in person and not take the risk of using an agent who might not be familiar with the matter. 

4. But on the other hand, Ms Moran's evidence is that she was not notified of the matter being listed on 21 November 2006 until 17 November 2006, four days before, and by then she already had another commitment.  Secondly, she briefed an agent and she says she thoroughly briefed him, although there was some confusion as to the time he was to be here, but when he did get here, she says that he was well briefed.

5. That is consistent with what the father says insofar as he says that he was quite impressed with the agent's performance in being able to broker an agreement between the parties relatively quickly and arrange for consent orders.  So it seems to me that notwithstanding that it was desirable that the Independent Children's Lawyer be here in person, there was a reasonable excuse that she was not here and in addition to that, she did what she could to make sure proper arrangements were made for the children's representation on that day.  I am not satisfied that that matter weighs against the expert in support of the father's application.

GROUND 4

1. The father complains that as a ground for his application that the Independent Children's Lawyer had seen the boys only once and that she saw them when they were living with their mother, and not when they were living with their father.  I am not satisfied that there is any ground of substance there.  There is no evidence to establish that.  The father must have a misapprehension of the purpose of the Independent Children's Lawyer.  She is are not here to express the children's views; but to represent their interests.  The children have been interviewed enough by experts without having repeated interviews by their lawyer.

2. It also concerns me that the father thinks that there has to be some sort of fairness to the parents in the process of interviews of the children, and it is prejudicial to him if the children were interviewed at a time when they were living with their mother.  That is a very concerning thing because it seems he thinks that there is some influence over them as to the wishes they might express if they are living with their mother that might be prejudicial to his case. 

GROUND 5

1. The fifth ground that the father expresses is that the father was not notified of the interview. I am not satisfied there is any need for the father to be notified.  I would not feel that the mother should be notified either if the boys were living with the father at the time.  Quite the contrary.  I think it was desirable that there not be a fuss made of both parents being informed that the children were going to be interviewed and indeed it seems it would be a waste of the limited funds available to the children under their Legal Aid grant if part of it could be spent on another letter to one of the parents who did not have to facilitate any part of their attendance.

GROUND 6

1. The next matter is a lack of communication alleged by the father.  He says in par 4A in his affidavit:

   Lack of communication with me which included not replying to a telephone message of 16 October 2006, yet having had conversations with both the respondent and her representative.  Apart from failure to post vital information, she has never attempted to contact me. 

2. There is evidence by the lawyer which refutes resoundingly this material.  There was no telephone message of 16 October 2006 from the father to a message machine in her office.  She did make repeated calls to the father, she corresponded with him on numerous occasions and I am not satisfied that there have been any inadequate correspondence or lack of correspondence with the father.  What I am concerned about, though, is how reliable the father’s evidence is when he has made such serious errors in alleging a telephone message was left on a specified date, when no message was left, and also alleging that the solicitor had never attempted to contact him when he had no direct knowledge to support such an allegation and there were numerous letters from her to him and numerous phone calls by her to him.  This ground does not have any substance.

GROUND 7

1. The next ground is his allegation that the lawyer has used an incorrect name for him.  The names of the parties for the title of the proceedings is obtained by Court staff initially from the Application, so depends on the names used by the person who draws the application.  These proceedings were initiated by the mother and her lawyer in preparing the application, apparently on her instructions, stated the father's name as Mr S.  She used the same heading and the same names in the financial statement filed with her application 

2. The father filed a Response and in that Response which was prepared by his lawyer and sworn by the father and he said in that affidavit:

   The facts of which I have personal knowledge are true.

   In the document, he is described as AJS.  Not surprisingly, the Court records accordingly included a description of the father as AJS.  The father says his correct name is T, but he has not filed any Notice of Change of Name with the Court, although at some stage somebody has, in the Court documents, referred to him as “T” without the middle name J, but certainly there are many documents on the file that continue to describe him as AJS.  There is a consent form that he signed as recently as 21 August 2006, consenting to the proceedings going into the LAT process where he is described as “AJS”, although he signed "TS".

3. I am not satisfied that there was any disrespect intended to the father by the Independent Children's Lawyer referring to him by the name that was the title in the proceedings; in fact she is obliged to do that under the Rules.  It is not a matter for other people to change his name in the proceedings; that is his obligation under the Rules.   Although he appears to have been ignorant of them, he is required to file a Notice of Change to indicate that his name is different to that previously used by him in the proceedings.  That ground is not established. 

GROUND 8

1. The last matter the father raises in his affidavit is that the Independent Children's Lawyer lied.  He says:

   Lying or misrepresenting the facts to the point of negligence.

2. Her letter of 6 November 2006 sent to the solicitor for the wife (and a copy was sent to the husband) stated:

   I spoke to [Mr G] from Relationships Australia on 3 November 2006, he is a psychologist who has now had the opportunity of spending some time with [the father].  He advised us that a psychiatric assessment of him is essential.  We have given consideration to a psychological assessment if one could be undertaken quicker and more cheaply (for example by [Ms I]).

3. The father takes issue to this because basically what he claims is that Mr G did not and would not have said that the father should have a psychiatric assessment.  However, the father has no direct knowledge at all of what was said in the conversation.  It is most unfortunate that the Independent Children's Lawyer revealed to the father what the psychologist has said.  Perhaps it was an oversight when the copy of the letter was sent in that she was not conscious of the fact that there was confidential information which the psychologist had provided her.  But what I have is on one hand evidence of the solicitor on oath that Mr G said those things to her in their conversation, and on the other hand hearsay evidence of the father, who did not hear the conversation,  relying on what he alleges Mr G told him later.  I must prefer the first-hand evidence of the solicitor who was present at the conversation, rather than the hearsay evidence of the father.  So I am not satisfied that the solicitor lied in that regard or that she misrepresented the facts.

4. Ground 8 has no substance.

CONCLUSIONS

1. That is the extent of the grounds set out in the father's affidavit in support of his application.  Accordingly, I am not satisfied that there is any basis for an order removing the Independent Children's Lawyer, although I would be concerned that the solicitor should give some serious consideration to the predicament that has now arisen where, according to her evidence, the father has now become aware of confidential information that Mr G provided to the solicitor which may give rise to some apprehension by the father as to the way she might treat him or regard him.  But in the circumstances, I think it is a matter for the solicitor to consider her position in that regard and it is not a matter where, at this stage, I should make an order removing the solicitor.  Certainly it was not a ground that the father relied upon.

   RECORDED   :   NOT TRANSCRIBED

THE MOTHER’S COSTS APPLICATION

1. The general Rule in relation to proceedings under the Family Law Act is set out in s 117(1) which says in proceedings under the Act, subject to certain other provisions that I will refer to, each party shall bear his or her own costs. Subsection (2) gives the Court power to make an order for costs in situations where it considers the circumstances justify such an order. It requires the Court to have regard to the matters listed in sub-s (2A) when a costs application is decided.

2. The first of those is the financial circumstances of the parties and there has been no submission about that, but I know that in past hearings that both parties are qualified school teachers.

3. The second is whether any party to the proceedings is in receipt of assistance by way of Legal Aid and so far as I am aware, neither of the parties has Legal Aid.

4. The third matter is the conduct of the parties in relation to the proceedings and I take into account there that some of the material that the father raised in support of his application was untrue and presumably knowingly untrue.

5. Paragraph (d) is whether the proceedings were necessitated by the failure of a party to comply with previous orders and that does not apply. 

6. Paragraph (e) is whether a party to the proceedings has been wholly unsuccessful, that does apply.  The father is the applicant and he has been wholly unsuccessful.

7. Paragraph (f) is in relation to settlement negotiations and there was no evidence that there were any settlement negotiations.

8. Paragraph (g) is such other matters as the Court considers relevant.  I think it is relevant that the father's application had no merit.  There was no merit at all in relation to the matters that he raised.  Indeed, in respect to some of the items, he appears to have a level of paranoid belief in relation to the conduct of the Independent Children's Lawyer.  He makes allegations where he does not know the true facts, but presumes that those facts are contrary to his interests and then when the evidence is in, it transpires that there is no basis for the presumption.

9. In the circumstances, because of the father's conduct in giving false evidence,  because of the fact that his application had so little merit and also because he was wholly unsuccessful, there should be an order for costs.  I will assess the costs on the basis of approximately two hours for the hearing and then another hour for communications with the client, perusal of the documents and any telephone calls and other work.   The scale for the solicitor is $181per hour.

I certify that the preceding sixty three (63) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mullane

Associate: 

Date:              31 January 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as Streeton & Richards