Teel & Brady

[2021] FamCA 393

FAMILY COURT OF AUSTRALIA

Teel & Brady [2021] FamCA 393

File number(s):

HBC 917 of 2020

Judgment of:

BENNETT J

Date of judgment:

19 May 2021

Catchwords:

FAMILY LAW – PARENTING – where mother alleges domestic violence and sexual abuse by father of child.

FAMILY LAW – PARENTING – concerns about adequacy of family report by regulation 7 Family Consultant – comments made under qualification that evidence of Family Consultant has not been tested – where the Court seeks psychiatric assessment of parents by one expert psychiatrist as to the current mental state of each parent and their respective capacity to parent.  

Number of paragraphs:

19

Date of hearing:

19 May 2021

Place:

Hobart

Counsel for the Applicant:

Mr Doyle

Solicitor for the Applicant:

Clarke & Gee

Counsel for the Respondent:

Ms Burns

Solicitor for the Respondent:

Bishops Barristers & Solicitors

Counsel for the Independent Children's Lawyer:

Mr Murray

Solicitor for the Independent Children's Lawyer:

Murray & Associates

ORDERS

HBC 917 of 2020

BETWEEN:

MR TEEL

Applicant

AND:

MS BRADY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	BENNETT J
DATE OF ORDER:	19 MAY 2021

THE COURT ORDERS THAT:

1.The parties do all acts and things to arrange for a psychiatric assessment of each of the parents by Dr H.

2.The wife and the Independent Children's Lawyer forthwith make application to the Legal Aid Commission of Tasmania for an extension of assistance to the mother and to the children for the purpose of covering the cost of the psychiatric assessment.

3.This matter be listed for mention before Justice McGuire on a date to be fixed by his Honour’s Chambers for directions for trial (“the mention date”).

4.In the event that the assessment report of Dr H is not available to the parties by the mention date, the parties be at liberty, through the Independent Children's Lawyer to contact my Chambers, …, to see if an alternative date can be arranged administratively.

5.My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties and the independent children’s lawyer be at liberty to provide a copy to the Proper Officer of the Grants Division at the Legal Aid Commission of Tasmania.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Teel & Brady has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

BENNETT J:

1. This matter comes before me for a mention in parenting proceedings concerning the children X, aged four, and Y, aged six.  The proceedings are between their parents who have been separated since 2014.  The father was having face-to-face time with the girls until approximately 2018 when the older child, Y, allegedly made a disclosure to the mother which she alleges is indicative of the father having sexually abused Y.  There was some stopping and starting of time spent and, at the moment, the father is in the early stages of having supervised time with the children at a contact centre. 

2. In the course of preparing the matter for trial, a family report was prepared by a regulation 7 report writer.  It is dated 16 March 2021.  The report is not committed to affidavit at this point but has been placed on the court file and published to all parties.  The regulation 7 report writer conducted face-to-face interviews for the report on 15 February 2021.  At this stage in the proceedings, the family report writer’s evidence and the opinions she expresses therein are untested and accordingly, these reasons are heavily qualified.  Cross-examination of the Family Consultant will occur in the final hearing but not before. 

3. On 4 May 2021, the matter came before me for mention with a view to dealing with it in the sittings this week in Hobart.  It was then the joint request of all parties, including the Independent Children's Lawyer, that the matter not be fixed for hearing in this week because it was not ready to proceed.  Each party had contemplated asking the Family Consultant to conduct a series of tests on the father to assess his propensity to sexually abuse.  I did not then, and I do not now consider that that is the best way to proceed with this case.  I do not regard a psycho-sexual assessment of the father without any further assessment of the mother, to be constructive at this time. 

4. The evidence of the family report writer is untested and I acknowledge that viva voce evidence that she gives at the final hearing may well ameliorate the concerns that I have.  However, it is my preliminary view that to proceed to a final hearing with the family report dated 16 March 2021 as the only social scientist evidence would not be prudent or in the best interests of the children.  My preliminary view is that the report dated 16 March 2021:

   (a)Lacks an analysis of the family violence issues which are denied by the father;

   (b)Does not explore alternative hypothesis for why the children made statements;

   (c)Does not examine the possibility that the mother may have over-valued beliefs in relation to the father sexually abusing the children; and

   (d)Recommends supervised time between the father and the children on a limited basis but does not recommend what should occur thereafter.

5. The report of the regulation 7 family report writer did not read to me as a balanced or internally consistent assessment in that it does not contain any exploration of the parents’ respective mental health conditions or personal parenting capacities. 

6. Importantly, there is no examination of the family violence allegations by the wife against the father.  Family violence does not appear to have been explored with the father or assessed in relation to the mother’s allegations of intimidation and angry conduct.  This, of course, may be cured once the regulation 7 report writer gives oral evidence.  However, if it is not, the Court will be left with a lacuna in the social science evidence.  That is, no social science evidence about what is in the best interests of the children going forward. 

7. My impression upon reading the first 19 pages of the family report was that the mother may have certain personality vulnerabilities which have led her to construct the belief that the children had been sexually abused by the father.  That is not to say that she is dishonest or deceptive, but does seem from the outset, in what has been reported, that the mother is very pointed in speaking to the children about their experiences with the father. 

8. The report dated 16 March 2021 is one directional in that it only offers one hypothesis for the children’s behaviour and that is that they have been sexually abused.  There is no alternative hypothesis.  There is no explanation of what may have influenced the children prior to making the alleged statements to third parties.  There is no alternative explanation or exploration considering why the children may have acted as it is alleged and whether the conduct of which the mother complains and which she has interpreted as indicative of sexual abuse is, indeed, not conduct which is consistent with ordinary childhood development and self-investigation or reflective of the children’s impression of what they are expected to say. 

9. On 4 May 2021, the practitioners had discussed having a psychosexual component in relation to the father be prepared by the regulation 7 report writer.  There was to be no examination of the mother and more particularly no examination of the parents’ beliefs, psychological make-up, mental health and how they interact with one another separate from the allegation that the mother now makes of the father and that the father now denies. 

10. Of course, it may be that neither parent is assessed as being in a clinical range for mental illness.  But an assessment by a psychiatrist, who would also look at the psychological indicators and personalities, will inform the Court about the dynamic between the parents and what sort of parenting arrangement would best suit the children going forward, having regard to entrenched behaviour and the possibility of overvalued beliefs or the need for psychological or psychiatric treatment. 

11. Another issue that concerns me in the family report is the recommendation that there be supervised time of limited duration.  It is not so much the supervised time that concerns me, but it is the fact that that seems to be where the report ends.  That, in itself, seems to gloss over responsibility of the Court to make a determination about whether unsupervised time with the father exposes the children to an unacceptable risk of sexual abuse.  There is no consideration of the amenity of supervised time weighed against the possibility of re-traumatising the children.  That is an assessment for the Court, not the social scientist family report writer.  But it is an assessment in respect of which the Court needs to be informed by sound evidence from a social scientist.

12. If the children have been sexually abused as the mother alleges, supervised time may not be in the best interests of the children.  If it is found that there is not an unacceptable risk of the children, having been sexually abused by the father, then evidence needs to be directed to how the mother is likely to react and whether she will be able to promote a meaningful relationship between the father and the children.  The report writer does not offer an opinion on these issues.

13. For all of the above reasons, I think that a psychiatric assessment of both of the parents by one clinician should be undertaken by a psychiatrist well-versed in relationship breakdown and dynamics of and interactions between the parties.

14. I have asked the parties to consider and obtain instructions in relation to a psychiatric assessment of both parents.  Because I am not currently envisaging hearing this matter on a final basis, I have been bold enough to suggest a Melbourne practitioner, Dr H.  It seems that he is available, and could possibly conduct the matter at a reduced fee.  However a reduced fee is still a great deal of money for this family.  The father will pay his own way but the mother (and the Court) looks to Legal Aid to fund the assessment of the mother.  It is imperative that the one practitioner does both parents. 

15. One purpose of these reasons is to support the application of the Independent Children's Lawyer who will make application to Legal Aid for an exceptional grant of assistance to cover the costs of Dr H’s assessment.  The Court would not be assisted by a psychiatric assessment which is merely a recitation of the facts common to all parties, and what each party says.  The Court will also not be assisted by a conclusion that there is no obvious psychiatric condition, but which leaves any contributing psychological features and personality traits untouched, unaddressed and the Court uninformed in respect of the impact of them on parenting capacity.

16. It is my considered view that the money spent now on a thorough and incisive psychiatric assessment may well save money down the track, and may even obviate the need for a final contested hearing on all issues.  In my view, both of the parents should be psychiatrically assessed as soon as practicable, and the hearing should be delayed until the assessment is performed. 

17. Finally, and on another issue, I do accept the assessment of the regulation 7 report writer that an assessment of Y in relation to developmental delay, learning difficulties and her development generally would be of assistance and may well illuminate the issue of the alleged sexual abuse.  That should be organised by the parties as soon as possible and be available to any assessing psychiatrist through Legal Aid. 

18. It is respectfully requested that Legal Aid extend adequate assistance to cover the cost of a psychiatric assessment.

19. I will incorporate in the orders that I make today a mention date before McGuire J (as he then will be) most likely, in approximately August.  In the event that his Honour is not able to deal with the matter, I indicate that I am in fact in this Registry in late August 2021 and could possibly accommodate the matter then, subject to the parties being content for me to take the matter notwithstanding my preliminary views set out above.  The parties will have liberty to apply on short notice to have the matter listed between now and the mention date before McGuire J, if they need to do so.  That concludes the reasons for judgment.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett.

Associate:

Dated:       15 June 2021