Children – court erred by refusing to admit treating psychologist report…

…as to child’s sexualised behaviours – ‘life changing’ reversal of care order set aside

In Simmons [2023] FedCFamC1A 44 (5 April 2023), the Full Court (McClelland DCJ, Aldridge & Baumann JJ) heard a mother’s appeal from parenting orders made by Hannam J.

There were three children of the relationship, aged 8 (Y and W) and 11 (X).

The child X had attended on a clinical psychologist, Ms R. Ms R prepared a report but Hannam J did not accept the tender of that report, and ordered a change of residence from the mother to the father.

The mother appealed; her grounds of appeal including the non-acceptance of Ms R’s report into evidence.

The Full Court said (from [46]):

“ … [T]he primary judge was entitled to make an advance ruling regarding the potential admission of Ms R’s report into evidence … However, consistent with … Britt & Britt [2017] FamCAFC 27 …  trial judge[s] should be cautious in doing so.  … 

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(…)

[50] … [T]he orders made by the primary judge were indeed ‘life changing’ for these children. …

(…)

[52] Before making such an order … the Court had an obligation to ensure that a decision of such magnitude for these children was based upon the most comprehensive and relevant evidence that was reasonably available. …

[53] Ms R was not simply an adversarial witness engaged by the mother. She was a clinical psychologist attached to … a government service agency to which the mother had been referred … to assist child X.

(…)

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[61] The opinion of Ms R was highly relevant … because it provided a counter narrative to the conclusion reached by the primary judge. That is, it was the clear opinion of Ms R … that child X had … been the subject of trauma, rather than simply that she had been the subject of a ‘message’ from her mother that she had been the subject of trauma.”

The appeal was allowed, the case was remitted for rehearing and costs certificates were ordered.

Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are accredited specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).