Dokic & Jamenev [2016] FamCA 732 (1 September 2016)

Last Updated: 6 October 2016

 

FAMILY COURT OF AUSTRALIA

 

 

 

 

 

 

 

 

 

 

 

REPRESENTATION

 

 

 

 

 

 

ORDERS

ORDERS MADE 31 AUGUST 2016

(1) The mother and father within seven days of the nomination by the Independent Children’s Lawyer sign all such documents and do all such things to apply to E Contact Centre or such other centre as may be nominated by the Independent Children’s Lawyer for the children B born … 2010 and C born … 2011 to spend supervised time with the father if ordered by the Court.

(2) Until further order the mother, her servants and agents be and are hereby restrained from taking the children, or either of them, to D Psychology or any other mental health practitioner.

(3) The Independent Children’s Lawyer be at liberty to forward a sealed copy of the order made this day upon D Psychology and any other of the children’s treating medical practitioner.

(4) The father’s oral application for costs be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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 r 17.02 Family Law Rules 2004 (Cth).

FILE NUMBER: MLC 3650 of 2016

Applicant

And

Respondent

REASONS FOR JUDGMENT

1. This matter was listed before me in the Senior Registrar’s Duty List on 26 August 2016. On that date I made various orders by consent and orders for the preparation of a report pursuant to s 11F of the Family Law Act 1975 (Cth) (“Section 11F report”). The matter was otherwise listed for hearing in the Senior Registrar’s Duty List on 16 November 2016. There were two orders sought by the Independent Children’s Lawyer and the father which the mother opposed and as there was not time that day the matter was listed for hearing before me today to address those two remaining issues.
2. The Independent Children’s Lawyer and the father sought the following orders opposed by the mother:

The mother and father within seven days of the nomination by the Independent Children’s Lawyer sign all such documents and do all such things to apply to E Contact Centre or such other centre as may be nominated by the Independent Children’s Lawyer for the children [B] born … 2010 and [C] born … 2011 to spend supervised time with the father if ordered by the Court.

Until further order the mother, her servants and agents be and are hereby restrained from taking the children, or either of them, to [D Psychology] or any other mental health practitioner.

3. Having heard the parties’ submissions I made the orders sought by the Independent Children’s Lawyer and the father and reserved my reasons. These are those reasons.

Whether the parties should be required to sign the Contact Centre Forms

4. Counsel for the Independent Children’s Lawyer submitted that although the mother had now filed an affidavit on 30 August 2016 that that affidavit was directed primarily to and relevant for the purposes of the Court determining what, if any time, the children should spend with the father rather than to the question of whether or not the parties should be required to sign the application forms placing them on the waiting list at the E Contact Centre or such other contact centre the Independent Children’s Lawyer might nominate.
5. Counsel submitted that all that would be required would be for the parties to sign the application form and that any intake process would only be commenced once an order had been made for the children to spend time with the father if that were to occur. This was not disputed by the mother.
6. The Independent Children’s Lawyer’s case is that the contact centres generally have long waiting lists and that if the Court were to determine that it would be in the children’s best interests to spend supervised time with the father, if the parties are already on the waiting list, that time could commence sooner rather than later.
7. The father agreed with the Independent Children’s Lawyer that the parties should make the necessary application to place their names on the waiting list in anticipation of the hearing before the Senior Registrar on 16 November 2016 and adopted the submissions of the Independent Children’s Lawyer.
8. Although on 26 August 2016 when I expressed a preliminary view that I could see no reason why the parties should not sign the contact centre application forms the mother’s solicitor made the point that her client had not filed any answering material. The mother has now filed an affidavit however in my view that affidavit does not address this issue in any real sense. The mother’s solicitor referred me to paragraph 3 of that affidavit in which the mother deposes that the father “…continues to provide inconsistent and unreliable information about his behaviour and contributions towards his children. His version of events is constantly changing and unpredictable.” Even if I could make findings, which of course I cannot do in circumstances where the evidence has not been tested, and accepted the mother’s evidence, that in my view would not support her case that she should not have to sign the application forms. I am satisfied that not only is there no reason that the parties should not sign the application forms but that it is in the children’s best interests that they do so.
9. It is in my view of concern in circumstances where having made it clear that I proposed to make the order sought by the Independent Children’s Lawyer that having given the mother’s solicitor the opportunity to obtain further instructions those instructions remained unchanged. It is of even greater concern that having made that order the mother’s solicitor indicated to the Court that her client would not be “able” to sign that application. The mother’s solicitor did not elaborate on why that might be.

Children’s attendance upon a psychologist

1. 10. The mother annexed a report prepared by Ms F a psychologist at D Psychology in Suburb G dated 30 August 2016 to her affidavit filed 30 August 2016. According to that report the child B who is now six years of age was referred to the D Psychology Centre by Dr H on 29 June 2016 “…to assess and treat her stress levels due to sexual abuse by her father.” Ms F reported that after the initial intake with the mother on 3 August 2016 she has seen B on 11, 18 and 25 August 2016 for an hour each time. A further meeting was organised on 29 August 2016 for the mother to complete a questionnaire.
   11. Not surprisingly but also of some significance in this case given the submissions made by counsel for the Independent Children’s Lawyer Ms F reported that the information contained in her report was derived from psychological interview with the mother and interviews with and observations of B and that the “…reliability of the information is dependent on methods of self-report and the accuracy of the information provided.” That includes the information provided to her by the mother that she had spoken to the Region I Centre Against Sexual Assault (“RICASA”) and that “…allegedly the girls were opening up and disclosing the abuse.”
   12. It is clear from Ms F report that she has accepted that B has been sexually abused by the father in this case and has proceeded on that basis. When in fact B’s has not made clear disclosures and neither the Sexual Offences and Child Abuse Investigation Teams (“SOCIT”) who have interviewed B on a number of occasions or RICASA who worked with the family during 2015 have taken the matter any further. There are also notes in the SOCIT file referring to the mother’s anxiety and her possible influence over B and the possible effects of B’s exposure to her mother’s anxiety. In my view any disclosures made to Ms F must be viewed in that context particularly in circumstances where Ms F did not start seeing B until some 15 months after the incidents of alleged abuse were said to have occurred.
   13. Although the premise upon which Ms F has engaged in therapy with B raises some questions as to the benefits of or possible risks of that ongoing therapy in my view what is of even greater significance in relation to my determination is that although as submitted by the mother’s solicitor Ms F has opined that B would “…benefit greatly from more frequent sessions, that is attending each fortnight, to help improve her current emotional functioning” she has also described B as “…a confident young girl” who “…can show positive affection to family members and friends” and that the “…symptoms that present themselves don’t seem to have a negative effect on [B’s] current functioning”.
   14. I am satisfied that in the best interests of both children and for the purposes of the Courts assessment of what if any risk the father may pose to the children and the determination the Court is required to make that B is not engaged in ongoing therapy which is based upon the premise that she has been sexually abused pending the hearing before the Senior Registrar in November. It is in my view particularly important that the family consultant preparing the Section 11F report is able to make his or her assessment absent the impact the ongoing therapy might have upon that assessment.
   15. In circumstances where based upon the report prepared by Ms F B is in any event functioning relatively well I am satisfied that delaying any further therapy until the completion of the Section 11F report and the Court having had the opportunity to consider all of the evidence would not be detrimental to B. It is on this basis that I acceded to the Independent Children’s Lawyer’s application that the mother be restrained until further order from taking either child either to Ms F or any other mental health practitioner. This order is an interim order and the need for this order can be reconsidered at the hearing before the Senior Registrar on 16 November 2016.
   16. Counsel for the Independent Children’s Lawyer also sought an order that the Independent Children’s Lawyer be at liberty to provide Ms F or any other of the children’s treating medical practitioners with a copy of these orders. In circumstances where, notwithstanding my order, the mother has already indicated that she may not sign the contact centre application, I am satisfied that in order to give effect to my order restraining the mother from taking the children to Ms F that it is appropriate to make the order sought by the Independent Children’s Lawyer .
   17. Finally counsel for the father sought an order that the mother pay his cost of and incidental to the hearing before me this day fixed in the sum of $1,460. The primary basis of that submission was that the hearing had been necessitated by the mother’s refusal to consent to orders ultimately made by the Court in circumstances where I had made clear to the mother that there might be an application for costs in the event that the Court were to accede to the application of the Independent Children’s Lawyer.
   18. The general rule in proceedings in this Court is that parties bear their own costs of those proceedings (s 117(1) Family Law Act 1975 (Cth) (“the Act”)). Section 117(2) of the Act however provides that if the Court is of the opinion that there are circumstances that justify it making an order for costs it may make such order as it considers just. Section 117(2A) of the Act sets out the matters the Court must have regard to when considering what if any order it should make. Those matters are:
       <li “=””>(a) the financial circumstances of each of the parties to the proceedings;

<li “=””>(b) whether any party to the proceedings is in receipt of legal assistance by way of legal aid;<li “=””>(c) the conduct of the parties to the proceedings in relation to the proceedings, including without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;<li “=””>(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;<li “=””>(e) whether either party to the proceedings has been wholly unsuccessful;<li “=””>(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and<li “=””>(g) such other matters as the court considers relevant.

19. Although in this case the mother has been wholly unsuccessful in circumstances where when the matter was first listed before me she was put on notice that her opposition to the orders sought by the Independent Children’s Lawyer was not successful she might face and order for costs I am not satisfied that in circumstances where both parties are in receipt of legal aid and are both in receipt of Centrelink benefits that an order that the mother pay the father’s cost would be just. The mother has the care of the two children of the relationship and in circumstances where the father is in receipt of a disability pension receives and pays only modest child support. In all of the circumstances I propose to dismiss the father’s application for costs.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 1 September 2016.

Associate:

Date: 1 September 2016