Tai & Bo
[2024] FedCFamC1F 474
•17 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tai & Bo [2024] FedCFamC1F 474
File number(s): MLC 6905 of 2020 Judgment of: BENNETT J Date of judgment: 17 July 2024 Catchwords FAMILY LAW – CHILDREN – Magellan – interim defended hearing - where matter is set down for nine day final hearing in four months – where female child has disclosed sexual abuse by her father to her psychologist and the DFFH – where child has disclosed abuse to her sibling – where neither child is currently receiving mental health treatment or support – where previous orders provide for attendance at a psychologist and family therapist – where court is to determine the appropriate therapy and counselling for the children between now and final hearing – where it is ordered the psychologist who previously treated the daughter is to see both on an ongoing basis for non-reportable therapy
FAMILY LAW - CHILDREN – where there appears to have been no consideration by parties or the Court when arranging for therapy for children whether it is consistent with each individual child’s best interests that the therapy can be the subject of evidence – where when ordering that parents facilitate the attendance of a child at therapy or counselling, particularly where allegations of child abuse are made against a parent, it is incumbent on the Court and the practitioners to turn their minds to the purpose of the treatment and whether it is in the child’s best interests to allow the child’s participation, statements and views to be made evidence in the proceeding – where any parameters which it is decided should be set around the evidence (including confidentiality) should be clearly articulated in the Order
FAMILY LAW - CHILDREN – where Article 3(1) of the Convention on the Rights of the Child provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration – where there is a distinction between the best interests of a child and the best interest of parents in parenting litigation concerning that child
FAMILY LAW – EVIDENCE – Expert witnesses – where the father made an application for the family to attend a reportable counselling program – a program that costs $16,500 – where the father argues there is evidentiary value in having additional experts – where there is a comprehensive Magellan report – where father does not establish the necessity of appointing additional expert witnesses – where updated Magellan Family Report ordered
Legislation: Family Law Act 1975 (Cth)
Family Law Regulations 2004 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Convention on the Rights of the Child, opened for signature on 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)
Cases cited: Bryce & Bryce [2020] FamCA 653
Mizushima & Crocetti [2024] FedCFamC1F 113
Division: Division 1 First Instance Number of paragraphs: 48 Date of hearing: 12 July 2024 Place: Melbourne Counsel for the Applicant: Mr Carne Solicitor for the Applicant: Lander & Rogers Counsel for the Respondent: Mr Werner Solicitor for the Respondent: Rayner Song Family Lawyers Counsel for the Independent Children's Lawyer: Mr Tesoriero Solicitor for the Independent Children's Lawyer: Trapski Family Law ORDERS
MLC 6905 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR TAI
Applicant
AND: MS BO
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
17 JULY 2024
THE COURT ORDERS THAT:
1.The matter remain listed for final defended hearing before me to commence on 2 December 2024 for an estimated 9 days.
2.The parents do all acts and things necessary, including obtaining a Mental Health Care Plan for each of the children being X born 2014 and Y born 2016 (“the children”) to be assessed by, and if appropriate, receive therapeutic treatment from Ms B, psychologist.
3.The parents each pay equally and be equally responsible for the reasonable costs of attendance at Court today by Ms B and do so within 7 days of presentation of an invoice for same.
4.Subject to further order any treatment by Ms B of either child is not reportable and will not be subject to evidence and no further subpoena can issue to Ms B or her practice for evidence in relation to the children.
5.The director of Children’s Court Services make Ms C, Court Child Expert, available to prepare a further report to that of the Family Report dated 8 June 2023, such report to be commenced not earlier than 1 October and be released not later than 1 November 2024.
6.Pursuant to section 62G(2) of the Family Law Act 1975, the parties and X born 2014 and Y born 2016 attend upon a Court Child Expert (practicing under their appointment as a Family Consultant), Ms C, for the purposes of the preparation of an Updated Family Report, such report to be released by 1 November 2024. The parties to comply with all reasonable directions as to attendance upon the said Family Consultant as and when required by the said Family Consultant. Such report to be commenced not before 1 October 2024 and be released by not later than 1 November 2024.
7.The Updated Family Report address:
(a)any views expressed by the children and any matters (such as the children’s maturity or level of understanding) that would affect the weight that the court should place on those views;
(b)the matters set out in ss 60CC, 61D(3), 61DAA of the Family Law Act 1975;
(c)the impact upon the children and upon their relationship with the mother if the Court made orders as sought by the father;
(d)the impact upon the children and upon their relationship with the father if the Court made orders as sought by the mother;
(e)an assessment of the capacity of the parents to cooperate with one another in relation to day to day parenting matters as well as long term parenting issues;
(f)an observation of each of the parties with the child/ren (unless it appears to the Family Consultant that such an observation taking place is not in the immediate best interests of the child/ren);
(g)recommendations as to how the matters in issue between the parties and/or arising out of the proceedings, may be resolved in the child/ren’s best interest to the greatest extent possible; and
(h)any other matters that the Court Child Expert/Family Consultant considers important to the welfare or best interests of the children.
8.Not later than 4.00pm on 18 July 2024 the parties provide their contact telephone numbers and email addresses to ...@....
9.Each party do all things necessary to ensure the children attend upon to the Family Consultant pursuant to s 62G(3A), unless otherwise determined by the Court Child Expert that s 62G(3B) applies.
10.The parties and the children attend for interviews at such times, dates and places, and by such means as the Family Consultant may advise.
11.For the avoidance of doubt the Family Consultant be and is hereby authorized to have reference to:-
(a)all documents filed in these proceedings;
(b)any documents produced on subpoenae and released for inspection by all parties;
(c)any documents provided to him by the Independent Children’s Lawyer who will give notice to the other parties to the proceedings of what documents are so provided; and
(d)any documents or things referred to in this Order.
12.The Family Consultant be at liberty to inspect any material filed by the parties, and:
(a)the report from the child welfare agency dated 27 January 2023, Magellan Report dated 5 July 2022, 67Z responses dated 5 July 2022 and 14 October 2020; and
(b)any documents produced under subpoena in this matter provided that they have been released for inspection by at least one parent or the Independent Children’s Lawyer.
13.Upon the Updated Family Report being provided to the Court, the Court release the report and provide a copy to each party (or if represented, the party’s lawyer) and to the Independent Children’s Lawyer in the proceedings.
14.Unless a party objects in writing within 14 days of the date of releasing the family report, a copy of the family report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the children:
(a)a Children’s Court;
(b)a child protection authority;
(c)a State or Territory legal aid authority; and
(d)a convener of any legal dispute resolution conference.
15.Upon the Updated Family Report being provided to the Court, the Court will release the report and provide a copy to each party (or if represented, the party’s lawyer) and to the Independent Children’s Lawyer in the proceedings.
16.Unless otherwise ordered, no person shall release the Updated Family Report, or provide access to the family report to any other person.
17.The Independent Children’s Lawyer forthwith ensure that Ms B, psychologist, has a copy of the Updated Family Report in this matter together with any other document which the Independent Children’s Lawyer considers would assist the expert to give evidence in these proceedings and in respect of which the other parties do not raise an objection.
18.In the event that there is difficulty securing an Updated Family Report in the time frame provided for in this Order, the Independent Children’s Lawyer contact my Chambers and request listing for alternative orders.
19.I dismiss the father’s application for the family to participate in L Counselling or participate in any such counselling or any such program.
Trial Directions
20.That each party file and serve an undertaking as to disclosure by not later than 30 August 2024.
21.Each party file and serve any amended application or response and all affidavit material or proofs of evidence in support of his/her/their case, NOTING THAT affidavits relied upon for previous hearings cannot be relied upon as evidence in chief, such documents to be filed to be as follows:-
(a)The applicant father by not later than 30 August 2024;
(b)The respondent wife by not later than 13 September;
(c)The Independent Children’s Lawyer by not later than 20 September 2024;
(d)The applicant in reply by not later than 27 September 2024;
Where a party can respond to evidence of the other party, the responding party must do so in seriatim (paragraph by paragraph).
22.By not later than 20 November 2024, each parent file and serve:-
(a)a case outline document; and
(b)a list of documents to relied upon by that parent –
and send same to my Associate by email – ...@....
23.The case outline document summarise that party’s parenting case including, but not necessarily limited to, the following issues:-
(a)Parental responsibility and decision making authority as defined in s4(1) of the Family Law Act 1975
(b)What parenting orders are sought by that party;
(c)Why the parenting orders sought by that party are in the best interests of the child(ren) having regard to the general considerations set out in s60CC(2).
(d)The matters set out in s61D(3) and s61DAA of the Family Law Act 1975;
24.The case outline document summarise that party’s property case including, but not necessarily limited to, the following issues: -
(a)a list of documents upon which that party will rely at trial;
(b)a list of assets divisible between the parties (including any add-backs);
(c)a list which identifies the property, including equitable interests in property, of each of the husband and the wife;
(d)any monies or premature distributions of property to which either party has been entitled, including that property or money which is no longer in existence, and the basis (if any) upon which such property is to be adjusted against the entitlement of either party and the extent of that adjustment;
(e)whether it is just and equitable within the meaning of s79(2) to make an order adjusting the husband and/or the wife’s interests in property; and
(f)a summary of argument including but not limited to the following matters relating to a final alteration of property interests:-
(i)the contribution based entitlement of each party;
(ii)in dot point form the different types of contribution being financial contributions (s79(4)(a)), non-financial contributions (s79(4)(b)) and contributions to the welfare of the family (s79(4)(c)) upon which that party relies to support the contribution based entitlement for which they contend;
(iii)any other matters relevant to a division of property including any adjustment to the contribution-based claim (if any) having regard to the factors in s79(4)(d), (e), (f) and (g);
(iv)in dot point form what relevant s75(2) or other factors relied upon by that party for any adjustment;
(v)why the orders sought by that party are appropriate;
(g)a summary of any matters upon which evidence is adduced from experts and is not agreed, including but not limited to:-
(i)the date and outcome of the last conference between experts;
(ii)the particular matters upon which there is no agreement between experts;
(iii)what the difference there would be to the final outcome in the event that one expert’s view of any particular matter is accepted over the other experts view;
(h)a summary of argument in relation to any other financial relief which is sought including child support or spousal maintenance; and
(i)a minute of the orders which he/she seeks be made at the final hearing if the orders sought differ in any respect from his/her last filed application or response.
25.That any party who proposes at the final hearing to seek orders against a superannuation trustee do all acts and things necessary to ensure that the superannuation trustee has been accorded procedural fairness in relation to the order proposed to be sought and that party be in a position to prove that procedural fairness has been accorded if called upon to do so.
26.Until further order I relieve the parties from compliance with r.6.22(3)(b) of the Federal Circuit and Family Court of Australia Rules 2021 in relation to Specific Questions and any party receiving questions answer same on oath within 21 days of receipt.
27.By not later than 25 November 2024, the Independent Children’s Lawyer provide to each other party to the proceedings and by email to my Associate:-
(a)a chronology of relevant events;
(b)a minute of the orders which in the preliminary view of the Independent Children’s Lawyer ought to be made at the final hearing;
(c)a list of documents upon which the Independent Children’s Lawyer intends to rely -
and the parents, through their legal practitioners, cooperate with the Independent Children’s Lawyer to ensure, to the extent that it is practicable to do so, that the information contained in the chronology is agreed to be accurate.
28.By way of compliance with Rule 12.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 by not later than 12.00 noon on 29 November 2024, the practitioner for each party provide notice in writing to his/her client of:-
(a)the actual costs incurred by the client up to and including that date;
(b)any expenses paid or payable to an expert witness or, if those expenses cannot be ascertained, after the making of all reasonable enquiries, an estimate of any expenses;
(c)the costs payable for each day of the private mediation;
(d)the costs payable for each day of the trial, excluding the first day;
(e)the estimated length of the trial; and
(f)the date of payments made and the source of the funds for the costs paid or to be paid so that:-
(i)if costs have been paid by cheque, details must be provided of the account on which the cheque was drawn;
(ii)if costs have been paid by credit card, the details must identify the finance provider and number and name of the credit card facility; and
(iii)if costs have been paid in cash, the details must identify the payer.
29.The parties prepare an Electronic Court Book using EBrief Ready AND IT IS DIRECTED that for this purpose my Legal Associate provide the template of the Electronic Court Book to the solicitors for the parties and the solicitor for the applicant include their documents first.
30.IT IS DIRECTED that any party wishing to cross examine on a document or tender a document into evidence at the final hearing, ensure that his or her counsel has a minimum of 5 copies of any such document available at the time of cross examination, evidence or proposed tender (being a copy for counsel for each party, a copy for the witness and two copies for the Court).
31.Each party has leave to contact my Chambers to arrange to have this matter listed for mention or before me, on notice to all other parties, to seek any further directions as any party considers are necessary to ensure that the matter is ready for trial or to narrow the issues in dispute.
AND THE COURT NOTES THAT:
A.I will deliver reasons subsequently.
B.That, in the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.
C.Section 114Q of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to communicate to the public an account of family law proceedings which identifies a party to the proceedings, a witness in the proceedings, a person related to, or associated with, a party to the proceedings, or a person who is, or alleged to be, in any other way concerned in the matter to which the proceedings relate, unless specifically authorised by the court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BENNETT J
INTRODUCTION
These are parenting and property proceedings initiated on the 29th of June 2020 between Mr Tai (born in 1975, aged 47 years) and Ms Bo (born in 1981, aged 42 years). This matter is listed for final hearing on 2nd December for an estimated nine days. It is a Magellan matter due to allegations of sexually inappropriate behaviour by the father to Y.
The purpose of this interim hearing is to ensure that Y is receiving the mental health care that she needs. The psychologist, Ms B, and the Family Consultant, Ms C, attended Court. I ordered that there could be limited cross examination of each practitioner. The Family Consultant was asked questions. No one required that the psychologist give evidence. There were discussions between Counsel for the Independent Childrens’ Lawyer and the experts and the expert’s views on various issues were stated to the Court by the Counsel for the Independent Children’s Lawyer in the presence of the experts.
The father put on an application seeking that the family enter into a six-week private program for families run by Ms D and Mr E with preferential access to psychiatrist Mr F and paediatrician, Mr G.
The matter proceeded by submissions and the opportunity for limited cross-examination of the psychologist and the Family Consultant. I pronounced the orders set out herein and said that I would deliver my reasons subsequently. These are those reasons.
The children are X (born 2014, aged 10 years) and Y (born 2016, aged 8 years). X and Y live with their mother in Suburb H. Mr Tai lives in Suburb J, a short drive away. In accordance with interim orders made16 November 2022, X is to spend supervised time with Mr Tai, each Monday for 3 hours. Y spends no time with Mr Tai. X ceased spending any time with Mr Tai in October 2023 after X refused to attend supervised time. Y last spent time with her father in November 2022 or thereabouts.
This case was transferred to the Magellan Registrar on 31 May 2022 by Judge Burt on grounds of contested allegations of sexual abuse of the child Y by her father. According to the s69ZW Response dated February 2023 and produced by the Department of Families, Fairness and Housing (DFFH), in early 2022 Y disclosed that her father sexually abused her whilst Y said that she pretended to be asleep. The matter proceeded to an Investigation and the Sexual Offences Child Abuse Investigation Team (SOCIT) completed a Visual and Audio Recording of Evidence (VARE) of Y. It is noted that Y made clear disclosures of ongoing sexual abuse by Mr Tai each time she had contact with him. The DFFH Magellan Report dated July 2022, the Department includes the following particulars:
It was reported [Y] had disclosed that [Mr Tai] had sexually abused her by putting his hands down her underwear, touching her breast area and inner thigh whilst he believed she was asleep. It was reported this occurred whilst [Y] was sharing a bed with [Mr Tai] at contact.
[In early] 2022, [Suburb K] Sexual Offences and Child abuse Investigation Team (SOCIT) and Child Protection completed a Video and Audio Recording Evidence {VARE). [Y] spoke about sharing a bed with [Mr Tai] during contact and explained [X] would sleep separately. [Y] disclosed [Mr Tai] would touch her chest and "tap" her buttock, further [Mr Tai] would touch her "here" and made a cupping hand motion over her vagina. [Y] disclosed this occurred at each contact. [Y] further stated she hated [Mr Tai] based on historic family violence incidents.
It was reported Y refused to speak with SOCIT a second time given she was uncomfortable in relation to all the questions about Mr Tai. The early 2022 investigation closed in mid-2022 given lack of evidence.
The matter was transferred to Division 1 on 2 June 2022.
The procedural history provides some context for what therapy Y has received.
·On 8 August 2022, the parties agreed, and an Order was made, that the children and parents engage in family therapy with Ms M as arranged by the Independent Children’s Lawyer. This therapy was to assist with the reintroduction of time between the children and the father. The parents were share the cost of therapy and follow the reasonable directions and recommendations of Ms M.
·On 16 November 2022, a Senior Judicial Registrar made an Order that Y “continue to engage in therapy with [Ms B]” to assist Y in relation to her disclosures of sexual abuse. The parents were to share the cost of therapy and follow the reasonable directions and recommendations of Ms B.
In November 2022, a secondary report was received in relation to Y’s “clear and detailed” disclosure of ongoing sexual abuse by her father, Mr Tai. It was reported during a therapy session with her psychologist that Y had disclosed penetration by Mr Tai. From the s69ZW Response dated early 2023:
It was reported that during sessions with her psychologist, whereby [Y] drew pictures and played with dolls, [Y] disclosed that [Mr Tai] had sexually abused her. It was reported that [Y] disclosed digital penetration, [Mr Tai] pushing something against the outside of her vagina whilst sitting on her stomach and bouncing up and down, [Mr Tai] taking both his and [Y’s] underwear off, and [Mr Tai] grabbing [Y’s] hand and making her touch his penis. [Y] disclosed the sexual abuse hurt her and that she was very fearful of [Mr Tai].
In a case management hearing before me in January 2024, I was informed that Y was no longer attending any form of therapy despite her disclosures of sexual abuse. Y had attended Ms B for 6 sessions in 2023 under a mental health plan from Y’s general medical practitioner. The mental health plan was confined to six sessions. At the conclusion of these six sessions, neither parent sought an extension or variation of the mental health plan to accommodate further subsidised sessions, and Y’s treatment with Ms B ceased.
In June 2023, the Magellan Family Report, prepared by Court Child Expert Ms C, recommended that Y continue her sessions with Ms B. However, the therapy was not continued. It is not apparent what, if any, action the Independent Children’s Lawyer took in this regard.
It was submitted in a Case Management Hearing before me in January 2024 that Y’s sessions with Ms B were reportable. In any event a subpoena had issued on 31 October 2023 at the behest of the father and Ms B’s notes on her sessions with Y had been produced on 16 November 2023 and released for inspection by all parties without objection. Parts of Ms B’s notes also appear in the Family Report by Ms C.
At the hearing before me the parties seemed confused about whether Y’s attendances on the psychologist could be the subject of evidence or were confidential. The Court was informed that the psychologist thought that the therapy was confidential. If this is so, I would have expected the psychologist to raise confidentiality with the Independent Children’s Lawyer upon receipt of the subpoena. I am also puzzled as to why the Independent Children’s Lawyer did not raise the issue with the psychologist and the practitioners for the parents upon receiving notice that the parent against whom the child had made allegations had caused a subpoena to issue compelling the psychologist to produce her notes of her sessions with the child.
Evidence of medical or psychological treatment is not subject to privilege. A party may seek to maintain confidentiality on the basis that disclosure would be counter-productive to the mental health of the patient concerned or will impede or undermine the therapy itself. No such application was made in this case. It is apparent from the series of Orders that the issue of whether Y’s therapeutic treatment should have been protected by a prohibition against her therapist being compelled to give evidence or make her notes available for inspection was not considered or discussed when therapy was ordered. It also appears that no one subsequently sought Ms B’s views on the impact on Y of allowing legal practitioners and parties to look at the notes concerning Y’s treatment. That is a serious omission as far as Y is concerned.
When ordering that parents facilitate the attendance of a child for treatment, therapy or counselling, particularly where allegations of family violence are made against a parent, it is incumbent on the Court and the practitioners to turn their minds to the purpose of the treatment, therapy or counselling and whether it is in the child’s best interests to allow the child’s participation, statements and views in the treatment, therapy or counselling to be evidence in the proceeding. The Court and the parties should also ensure any parameters which it is decided should be set around the evidence are clearly articulated in the Order and are available to the therapist or counsellor concerned.
In the recent amendments to the Family Law Act 1975 (“the Act”), effective from 6 May 2024, the old s60B was repealed and replaced with a new s60B “objects of Part VII” including “to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.” Article 3(1) of the Convention provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
We must be alive to the distinction between the best interests of children and the best interest of parents in parenting litigation. I hold to the view which I expressed in Bryce & Bryce [2020] FamCA 653 [31] to [41], concluding that “…we must deal with the evidence responsibly, both as to gathering it and publishing it. Hearing the voice of a child must be a process which is emotionally safe for children and does not leave them feeling exposed or vulnerable.”
Paragraph 4 of my Order dated 30 January 2024 set the matter down for hearing today:
[...] for the purpose of hearing from the experts, [Ms C], Family Consultant, and [Ms B], psychologist, on whether either or both of the children [X] born […] 2024 and [Y] born […] 2016 (“the children”) require ongoing therapeutic intervention and if so on what terms and their views on the most appropriate way forward in terms of the social science assessment for the defended hearing.
It was suggested by Counsel for the mother that the psychologist should be required to give evidence about Y’s disclosures (of sexual abuse) to her but not of anything else. That strikes me an overly simplistic view of therapy and evidence and the ability to compartmentalise observations and experiences. This hearing was limited to two hours. I did not invite comprehensive submissions on evidence for the final hearing and I have not made a decision in that respect. I will not make a decision on evidence for the final hearing in relation to admissibility without comprehensive submissions.
The applicant father filed a case outline for the purposes of the interim hearing. No other party filed a case outline, nor did I require them to.
The father’s position in his Case Outline was that the children engage in ongoing psychological support and therapeutic intervention, and that the parties should engage in the L Counselling Program facilitated by experts, Ms D and Mr E (with assistance from Dr F) at the parent's shared equal cost. The father does not support the children going back to see Ms B.
The mother’s position, and that of the Independent Children’s Lawyer, is that the children should continue to engage with Ms B by way of psychological support and that there should be an updated Magellan Family Report prepared by Ms C.
Mr Carne, Counsel for the father, submits that Ms B and Ms C have not seen the parties or children for at least 12 months. I understand that is correct. Counsel for the father submitted that engagement with the L Counselling program occur in order to increase the quantity and quality of evidence available at the final hearing. Mr Carne submitted that, at the conclusion of the program, the L Counselling organisers will be in a position to provide recommendations in a Program Summary Report. Counsel submitted that once the parties have the benefit of considering the Program Summary Report, they have the option to obtain a s 62G Family Report to be prepared by Ms D and Mr E. That is not so. A s62G Family Report is ordered under the Act and organised by the Court Children’s Service. The Court identifies Family Consultants as having the requisite qualifications, skills and knowledge to undertake a Family Report. A report by Ms D or Mr E is a just a report, frequently referred to as “a private report”.
Annexed to the father’s Case Outline was a brochure for the L Counselling Program. I extract below some illustrative parts of the brochure (emphasis in original):
The [L Counselling] Program requires families to commit to two separate conferences.
The First Intake Conference will engage each parent and legal representative together, to provide both parties (separately) the opportunity to constructively include each parties views on the nature of the parent’s dispute and the child/ren’s exposure to it. The Child Experts use this time to assess parents understanding of the child/ren’s needs in light of the separation and surrounding conflict, with recommendations regarding preliminary arrangements for the care of the child/ren and the child/ren’s needs.
Following the intake conference, the parents and child/ren may have the opportunity to engage with [Ms D] and/or [Mr E] in reportable counselling in order to further strengthen and support the relationship between the parents, supervise and assess the progress of any recommended arrangements, and continue to engage with children regarding their needs, attachments and views.
The Review Conference will occur six weeks later. [Ms D] and [Mr E] will use the time at the Review Conference with each parent and their legal representative to provide feedback regarding the child/ren’s views on the family conflict and separation as a platform to dialogue about the child/ren’s unique experiences of separation into further deliberations and arrangements. Not only will the parents be provided with information and recommendations around parenting time, but also recommendations around any further assessment, treatment, or support that the family might benefit from.
[L Counselling] will provide immense benefit to families with exclusive access to [Dr F], a Federal Circuit and Family Courts of Australia’s psychiatrist, who will provide initial assessments in relation to allegations of risk, within the [L Counselling] model of a six week intervention program. In addition, one of Australia’s leading expert in child development and behaviours, Paediatrician, [Mr G], has offered exclusive access to appointments for children that the Child Experts identify as requiring urgent attention.
In consultation with such key experts as [Mr F]and [Mr G], [L Counselling]is able to provide a platform upon which to discuss risk issues, or when there are urgent and special considerations for children, in pursuit of a better outcome of the family as a whole, and not just focusing on the needs, the rights and desires of individual family members.
The parties would be able to engage in further counselling should the parties wish to continue without any need for ongoing Court proceedings. Alternatively, should the matter not resolve, the parties have the option to engage the Child Experts in a [L Counselling] Report.
The program costs $16,500 including GST.
The solicitors for the father have apparently made enquiries about the suitability of the L Counselling Program in the context of family violence and sexual abuse allegations and Mr Carne advised the court that the program is designed for complex matters at all stages of proceedings. I interpret this to mean that the L Counselling Program would also assess evidence of sexual abuse. I cannot see that the practitioners could avoid doing so if they are going to provide parents with recommendations and information around parenting time, further assessment, treatment and support. All of those perspectives are necessarily informed by any risk a parent might represent to the child.
The mother and Independent Children’s Lawyer are opposed to the order sought by the father. Counsel for the Independent Children’s Lawyer said that:
We [the ICL Ms Trapski and Counsel] are aware of the proposal of the father and have discussed it at length and for concerns about exposing these children to further experts, and then of course systems abuse, concerns about that arrangement becoming a shadow – having multiple experts dealing with the same subject matter - and for concerns about potentially engaging these children in some sort of therapeutic arrangement where there is no goal… It is premature…
Counsel for the mother submitted that the mother does not support engaging expensive counsellors before a finding is made as to unacceptable risk.
In reply, Counsel for the father submitted that the L Counselling program would be “more useful” to the Court than a report based on a single observational interaction with the children and parents for “just an hour” or words to that effect.
Counsel for the father conceded the need for the children to be receiving ongoing counselling support. This was not controversial as between the parties. I will make that order.
Counsel for the father submitted that the benefit of the L Counselling Program is that it gives the opportunity for some reportable therapeutic input into not only Y but X as well. In this regard I accept there is a need an updated Family Report to reflect the discontinuance of spend‑time between X and his father at the end of last year, and the current relationship between the children and their father and the children’s views. However, that does not extend to the introduction of three or four new experts for what is described as a “[L Counselling] model of a six-week intervention program”. I am also not satisfied that the “therapy” for the children (or either of them) should be laid bare to the parents or their legal representatives at this stage.
I have read the Family Report. It is untested evidence but it reads as an internally consistent, logically reasoned document.
Family Consultants are persons appointed as a family consultant pursuant to s 11B(c) of the Act and/or Regulation 7 of the Family Law Regulations 2004 (Cth). Section 11A defines the function of family consultants as follows:
(a)assisting and advising people involved in the proceedings; and
(b)assisting and advising courts, and giving evidence, in relation to the proceedings; and
(c)helping people involved in the proceedings to resolve disputes that are the subject of the proceedings; and
(d)reporting to the court under sections 55A and 62G; and
(e)advising the court about appropriate family counsellors, family dispute resolution practitioners and courses, programs and services to which the court can refer the parties to the proceedings.
The Family Consultant in this matter, Ms C, is appointed pursuant to s 11B(c) of the Act.
As observed by Austin J in Mizushima & Crocetti [2024] FedCFamC1F 113: the Family Consultant is engaged under s 62G of the Act rather than as a single expert under Pt 7.1 of the Rules but still effectively fulfils the role as the exclusive expert witness.
A Family Consultant is not a “single expert witness” for the purpose the Rules. For instance, r.7.11 (making application for a single expert to be appointed) or r.7.26 (asking questions of single expert witness) do not apply to Family Consultants.
The father submits that there is limited evidence available for the purpose of negotiations and the final hearing on the following grounds:
•[Y] has not spent time with the Father since November 2022;
•[X] has not spent time with the Father since October 2023;
•[X] has not received any counselling support and [Y] has not received ongoing counselling support since attending upon [Ms B], which concluded some time around February 2023…
•There is currently no evidence available from any previous or ongoing counsellor in relation to the children, their needs and their relationship with the parents;
•The parties and children were ordered to engage in family therapy at equal cost to the parties (Order 7 and 8 of the Interim Orders made by [a Judicial Registrar] on 8 August 2022), specifically to assist with the reintroduction of time between the children and Father, however, [Ms M] referred the family to [Ms B] and family therapy did not occur. After six sessions and [Y's] disclosure to [Ms B] (on the third session), those sessions with the children only ceased. [Ms B] never met with the parents. Accordingly, it is respectfully submitted that [Ms B] is not an appropriate expert to facilitate family therapy, despite originally being engaged for that role.
However, the father did not establish what evidence would be contained in a report of L Counselling model after a six-week intervention program that would not be covered by an updating family report authored by the Family Consultant Ms C.
The applicant father did not establish that the interests of justice require the appointment of a second expert witness (or raft of witnesses) to give evidence about the quality and future of the children’s relationships with the father.
The applicant father did not establish that there is a substantial body of opinion contrary to any opinion given by the Family Consultant and that the contrary opinion is or may be necessary for determining the issue.
The father had the opportunity to have counsel cross-examine Ms C in relation to her methodology and basis of her opinion but did not do so.
The applicant father has not established that another expert witness knows of matters that may be necessary for determining this case and which not known to the Family Consultant or not able to be found out by her. The most that Mr Carne could submit was that the team of experts at L Counselling Program should be capable of performing a thorough and up to date assessment. Given the experience and talent of the L Counselling Program line up, I do not doubt that is correct. However, I must weigh the benefit of a current assessment by L Counselling experts against putting the children through what might be a six-week ordeal of assessment by professionals who are new to the children at about the same time as Y is also recommencing with Ms B and X is being assessed by Ms B to see if he should attend for therapeutic treatment as well.
I conclude that the preferrable course is to have the Family Consultant prepare an up-to-date Magellan Family Report.
I enquired whether any party seeks a psychiatric assessment of both parents by Mr F to be followed by a further Magellan Family Report by Ms C. Mr F is part of the L Counselling team, although Counsel for the father said not a central part. The general consensus was that an assessment by Mr F would be interesting but is not essential. My experience is that, invariably, Mr F’s opinions are interesting, and his insights are of assistance. He is a gifted practitioner and a valuable resource when retained as an expert. However, I agree that Mr F’s involvement is not essential in this case. Psychiatric assessments are helpful to determine whether concerning behaviour by a parent or child is something for which both parents are responsible or whether it is a manifestation of pathology of one parent which may or may not be amenable to treatment.
The parents will be judged on their behaviour rather than whether there he or she has an underlying psychiatric condition to which his or her behaviour may be attributable. Neither parent in this case admits that their own behaviour is of concern and that he/she will change their behaviour. If they did, a psychiatric assessment would assist the Court to know how likely it is that the parent will be able to change what may be entrenched patterns of behaviour, but that is not the case here.
I decline to order sought by the father that the family enrol in the L Counselling program and orders consequential thereto.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 17 July 2024
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