Almond and Heidke
[2017] FamCA 1099
•22 December 2017
FAMILY COURT OF AUSTRALIA
| ALMOND & HEIDKE | [2017 ] FamCA 1099 |
| FAMILY LAW – CHILDREN – Interim Proceedings – Where there is one child of the parties’ relationship – Where the child is suffering from kidney failure – Where there are concerns surrounding with the mother’s mental health – Where the father made an application to vary the current interim orders so that he be granted parental responsibility for the child’s medical and educational needs and that the mother spend limited supervised time with the child when he is hospitalised and to restrain the mother from discussing with the child a kidney transplant and respective donors – Consideration of section 60CC factors – Unacceptable risk – Where the presumption of equal shared parental responsibility should not apply – Court finds that family therapy should be suspended – Orders made for Dr P to write an updated single expert report – Orders made restraining the mother from discussing with the child his kidney transplant and possible kidney donors unless in the presence of and under the guidance of the child’s renal specialist – Orders made varying current interim parenting orders. |
| Family Law Act 1975 (Cth) ss 43, 60B, 60CA, 60CC, 61DA, 65DAA |
| B and B (1993) FLC 92-357 SS v AH [2010] FamCAFC 13 Salah & Salah (2016) FLC 93‑713 Stott & Holger and Anor [2017] FamCAFC 152 |
| APPLICANT: | Mr Almond |
| RESPONDENT: | Ms Heidke |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid New South Wales |
| FILE NUMBER: | SYC | 6427 | of | 2009 |
| DATE DELIVERED: | 22 December 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 8 December 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Johnston |
| SOLICITOR FOR THE APPLICANT: | Mark Griffiths & Bova Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Othen |
| SOLICITOR FOR THE RESPONDENT: | Santone Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Grooby of Legal Aid New South Wales |
Orders
THE COURT ORDERS THAT:
To avoid doubt, except as varied below, the Orders of Sexton J dated 17 August 2016 remain in full force and effect.
Paragraph 7 of the Orders of Sexton J dated 17 August 2016 is varied to read as follows:
(a) X spend time with the Mother during school hours, up to twice per week, as arranged between the Mother and the school, on the condition that the father agrees to the spend time arrangements involving the child’s school.
The mother spend time with the child when he is hospitalised for 4 hours per fortnight, on a Saturday from 10:00am to 2:00pm with a responsible adult agreed between the parties to be present and, in default of agreement, that person be Mr Heidke.
The mother is hereby restrained from discussing with the child his kidney transplant and possible kidney donors unless done so in the presence of and under the guidance of the child's renal specialist.
Order 1 of the orders made by Sexton J on 25 October 2016 and the consent orders attached to that order are suspended until further order of the Court.
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 Almond & Heidke 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).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 6427 of 2009
| Mr Almond |
Applicant
And
| Ms Heidke |
Respondent
And
Independent Children’s Lawyer
Legal Aid New South Wales
REASONS FOR JUDGMENT
Introduction
X (“the child”) is 10 years old. He was born in 2007. His parents have been involved in litigation before this Court for half of the child’s life. That litigation has resulted in both a significant emotional and financial cost to the parents and it is adversely impacting upon their child, who faces significant physical and mental health issues.
In fact, the child, who has kidney failure, is facing the fight of his life as he awaits testing in order to identify whether he is a suitable candidate for a kidney transplant and to identify an appropriate donor. If those procedures are favourable, the child will have a kidney transplant in May 2018. He will, however, have a long period of recovery.
This is a period of enormous physical and mental challenge for the child. the child should be entitled to call upon those who he loves most for emotional strength and support, rather than being caught in the middle of his parents’ conflict.
The father filed an application on 27 November 2017 to vary the current interim orders to provide for him to be granted sole parental responsibility for the child’s medical and educational needs and for the mother to spend limited supervised time with the child when he is in hospital. The father also sought an updated single expert report and a restraint on the mother from discussing a kidney transplant or any prospective donors with the child.
The mother, who also has mental health challenges, sought to vary the current interim orders and previous orders made for therapy, so that she can attend family therapy with the child and spend some time with the child supervised by either C Group or the maternal grandparents. The mother further contends that she should be permitted to spend time with the child when he is in hospital without the need for supervision.
CURRENT INTERIM ORDERS
The current interim orders were made by Judge Sexton on 17 August 2016 and provide:
THE COURT ORDERS THAT:
1. The matter be adjourned to 19 October 2016 at 9.30 am before me for further mention.
2. [Dr P] be appointed by the Court as single expert and requested to provide a further report updating his report of 11 October 2012.
3. At the first instance, the cost of the report shall be met by the Father provided that within 14 days, the Mother forward to the Father copies of tax returns for the last 3 years and copies of her payslips commencing 1 January 2016 to date.
4. Within 21 days the Mother file and serve an affidavit from her treating psychologist such affidavit to confirm that the psychologist has read:
a. [Dr P’s] report,
b. Affidavits filed by the Mother, Father and [Ms B] since the end of April 2016; and
c. Reasons for Judgment of Judge Sexton dated December 2012.
THE COURT ORDERS PENDING FURTHER ORDER THAT:
5. Orders 2, 3 and 4 of the Orders made on 23 June 2016 be suspended.
6. [The child] spend supervised time with the Mother supervised by [C Group] either Saturday or Sunday on alternate weekends for a maximum of 4 hours with the costs borne as to 2.5 hours to the Father and 1.5 hours to the Mother specific times to be arranged with [C Group] noting if possible the same supervisor be engaged each fortnight.
7. [The child] spend time with the Mother during school hours, up to twice per week, as arranged between the Mother and the school.
8. The Mother be injuncted and restrained from discussing and/or making promises to the child about returning to live with her.
9. The Father will facilitate Skype communication each Thursday between 6.30 pm to 7.00 pm and on the weekend that the Child will not be spending time with the Mother, and the Father will apply his best endeavours to facilitate such communication.
10. The parents will communicate via email only, except in the event of an emergency in relation to the issues concerning [the child].
Orders 2, 3 and 4 of the Orders made on 23 June 2016 which are referred to in the above order were as follows:
2. That [the child] spend supervised time with the mother, supervised in accordance with the undertaking given by [Ms B].
3. That the child will spend supervised time with the mother as follows;
(i) During School Term commencing 26th June 2016.
(a) Week 1: alternate Sundays from 2pm 5o 5pm.
: On Tuesday from 3.30pm to 5.30pm.
(ii) During week 2 on Tuesday from 3.30pm to 5.30pm.
(iii) During the school holidays which commence Monday 4th July 2016 on The following days:
(a) Sunday 10th July, 2016 from 1pm to 4pm.
(b) Tuesday 12th July, 2016 from 1pm to 4pm.
(c) Thursday 14th July, 2016 from 1pm to 4pm.
4. That the father will facilitate Skype communication each Thursday from 6.00pm to 6.30pm and on the Sunday that the child will not be spending time with the mother, and the father will apply his best endeavours to facilitate such communication.
Further orders were made on 25 October 2016 by Judge Sexton. Order 6 of Orders made on 17 August 2016 was varied so that the parties would share equally the costs of C Group. Further orders were made with the consent of the parties on a without admissions basis that:
1. That:
(i) The mother attend with [Dr D] for family therapy with the child, as recommended at paragraph 392 of [Dr P's] report dated 17 October 2016;
(ii) in the event [Dr D] is not reasonably available, then such therapist as the parties agree or [Dr P] recommends;
(iii) the mother bear all costs of such therapy; and
(iv) the father shall make the child available for such therapy, provided it takes place on a Saturday.
2. That the father is authorised to contact the therapist as referred to in Order 1 to confirm the mother’s attendances, and may meet with the said therapist at his expense at least once.
3. That the supervisor of the supervised contact visits, or the other adult present during the mother's time, and the mother's therapist, are authorised to immediately contact the father i n the event of a significant incident of violence perpetrated by [the child] to any person or any property disclosed to or witnessed by them.
4. That the mother and the father authorise [Mr K] to speak to the therapist referred to in Order 1 above as is required or considered necessary, to discuss all issues in relation to the child and the mother.
5. That the mother is not permitted to change the therapist referred to in Order 1 above without the father's first obtained written consent or order of the Court.
6. That the Court permits the reports of [Dr P] dated 11 October 2012 and 17 October 2015 and the contact supervisors' reports to be released to [Mr K] and the mother's therapist as referred to in Order 1 above and any other treating therapists of the mother.
Notations:
A) That spend-time with Orders made 17 August 2016 shall continue, pending further order.
B) The parties agree that such orders may be varied if the father and the ICL accept a proposal by the mother to replace supervised time with time in the general presence of a named adult or named adults.
C) The parties have been sending SMS messages to one another to arrange the child's electronic communication with the mother..
D) The parties agree the Family Therapy shall take place not less than once per fortnight subject to the views of the therapist, and when [the child] is to attend, that the mother’s time with the child shall take place as soon as practicable after it.
ORDERS AGREED TO AT CONCLUSION OF INTERIM HEARING
Orders were made at the conclusion of the interim hearing for the matter to be set down for final hearing for 5 days commencing 26 November 2018, for Dr P to prepare an updated single expert report, and for the mother to cease engagement with Ms E who has provided family therapy with the child.
BACKGROUND
In interim proceedings it is not possible to make findings of fact where those facts are disputed. Drawing upon the chronologies that the parties respectively prepared, I regard the following facts and, where disputed, contentions, as being relevant to my consideration of this matter.
The father was born in 1971 and is 46 years of age. The mother was born in 1972 and is 35 years of age.
The parties commenced cohabiting in December 2005. Their son X was born in 2007. The parties finally separated in May 2010.
On 25 October 2009 the father filed an Initiating Application and on 19 November 2009 Judge Sexton made interim orders.
On 27 October 2011 the father commenced a second set of proceedings.
On 11 October 2012 Dr P provided his first report in respect to parenting matters. Dr P recommended:
·the child live with the father;
·the child have regular time with the mother every second weekend and one overnight during the week;
·the child not be left in the sole care of the maternal grandfather;
·the child continue with medical and therapeutic interventions; and
·the mother continue treatment in respect to mental health issues.
On 6 December 2012 Judge Sexton made Final Orders which, in summary were as follows:
·the parents have equal shared parental responsibility;
·the child live with the mother on alternative Fridays to Mondays and half of the school holidays;
·the parties be restrained from leaving the child in the sole care of the maternal grandfather;
·the parties be restrained from denigrating each other;
·the child continue to attend Mr K and Dr’s K, L, M and other such professionals with consent of the parties; and
·the mother and father continue to attend upon her psychologist or as recommended.
On 22 October 2013 Dr F provided a report which, relevantly for these proceedings noted:
·the mother has been seen by a psychologist Ms G;
·the mother does not exhibit symptoms of a major mood disorder or psychotic illness;
·the mother responded to a combination of antidepressant medication and psychological therapy; and
·the mother was compliant with treatment and monitoring.
In 2013 the father and his new partner had a child of their own, H.
In early December 2015 Mr K expressed some concerns to the father regarding the child’s relationship with his mother and subsequently, in mid-2015, recommended a psychiatric assessment of the child.
On 21 August 2015 Dr J provided a report recommending that the child be enrolled in a specialist autistic class and attends psychotherapy with Mr K.
On 27 August 2015 the parties agreed to the child being enrolled in a specialist autistic class.
On 9 October 2015 the mother informed the father that the child put a hole in the wall and was very angry. The father collected the child from the mother’s house and subsequently spoke to Mr K about the child’s behaviour.
On 5 November 2015 Dr F prepared a report which, by way of summary, relevantly noted:
·the mother had not at that time established a relationship with her son’s psychologist to allow her to work collaboratively with him;
·suggested the mother seek further help with her parenting skills to assist with the child’s care; and
·recommended the mother attend regular sessions with her sons treating psychologist.
On 8 December 2015 Dr K provided a report in which he expressed the view that the child presents with minimal features of autism spectrum disorder, recommended ongoing therapy with Mr K and an IQ test, family support and review of the child’s Ritalin medication after a period of three months.
On 7 January 2016 the parties agreed for the child to spend time with the mother overnight on a few occasions during the school holidays.
On 23 January 2016 the mother sent a text message to the father requesting he collect the child as he was:
being very rude, demanding me to stand up and sit down, he threw my mobile and his dinner on the floor and the bin rubbish on the floor etc.
In a text message also sent on 23 January 2016, the mother agreed for herself and the child to obtain additional therapy and indicated:
I don’t think it’s safe for me or the cat… he can’t stay here when he’s like this… I agree that [the child] stay with you until I/we get help.
On 23 February 2016 the report based upon the child’s IQ test indicated that the child “appears to be functioning similarly to a child with a Mild Intellectual Delay”. The report recommended:
·Adjustments of the child’s in class program;
·Support Class;
·Ongoing Speech & Occupational Therapy; and
·Ongoing medical management of his ADHD.
In February/March 2016 the parties agreed to suspend overnight time with the mother for a period of approximately 4 weeks.
On 6 April 2016 Dr K provided a report recommending the child be placed in a support class.
On 23 April 2016 the mother sent the father a text message informing the father that the child was angry, screaming and yelling at the mother.
On 28 April 2016 a significant incident occurred in circumstances where the child’s behaviour escalated to more aggressive, defiant and rude. The child picked up a steak knife and threatened the mother with it and pointed it at the mother screaming at her before running onto the front porch and bashing the knife into a wooden pole. The child also threw a chair at the mother and hit her and pushed her. The police were called to the home and the child was subsequently taken to the N Hospital where he was assessed by the Child and Youth Mental Health Service.
In the period following 28 April 2016 until 3 May 2016 there was some discussions between the parties and medical professionals concerning whether there needed to be a variation in the child’s medication.
On 3 May 2016 the mother informed the father that she was prepared to temporarily cease overnight time with the child.
On 4 May 2016 the parties agreed for the child to spend time with the mother for three hours on 7 May 2016 with that time to be supervised by the child’s maternal uncle Mr O.
On 4 May 2016 the father filed an Initiating Application.
The father contends that on 7 May 2016 Mr O advised him that the mother has “completely flipped on all agreements and … not listen to him”. The father further contends that Mr O indicated to the father that his wife was not prepared to supervise the child’s time with the mother.
Between 25 May 2016 and 15 June 2016 the mother spent supervised time with the child at his school on seven occasions.
On 21 June 2016 Dr F provided a further report which noted that the mother had stopped seeing Ms U. In March 2016 the report attached feedback from Ms U dated 20 October 2015 expressing the view that:
It is apparent that [Ms Heidke] is having difficulties managing her son’s behaviour. It is unclear as to his current diagnosis … It would be appropriate for [Ms Heidke] to see another treating professional with this skill Se to assist her to better manage her son’s behaviour.
On 23 June 2016 further orders were made by Sexton J as noted above.
On 17 August 2016 further orders were made by Sexton J as noted above.
On 9 September 2016 Dr F provided a further report which by way of summary included the following:
·An initial assessment and diagnosis of the mother having generalised anxiety disorder;
·noted that the mother continued to experience fluctuating symptoms of anxiety in response to psychological stressors;
·expressed the view that in the future the mother would benefit from more regular access to the child to enable her to reinforce her parenting skills;
·that the mother would benefit from more consistent support and inclusion in the child’s treatment; and
·recommended that the mother participate in a family based intervention model with a clinical psychologist/psychiatrist with expertise in management of Autism Spectrum Disorder and ADHD.
On 17 October 2016 Dr P provided a further report which, by way of summary included the following recommendations:
·The father have sole parental responsibility regarding medical and educational issues.
·The child live with the father.
·The child stay with the mother for a period that was “as substantial as possible, whilst not of such high a “dose” that experience of marginal maternal capacity and ongoing problematic child-mother relational patterns would disrupt the child’s broader developmental progress”.
·That the child spend time with the mother “in the general presence of an accepted adult [but] not supervision”.
·That if supported by appropriate therapy the time that the child spends with the mother progress to a stage where it occurs other than in the presence of and accepted adult. It was suggested that that might occur after a period of six months and build up in further increments over a period of an additional nine months to the point where the child spend time with the mother from Friday after school to Sunday afternoon alternate weekends and five nights during holidays including two block periods in December/January.
·The mother should be able to elect to reduce time if she found difficulty coping.
·Dr P cautioned the parties about too frequent telephone contact between the child and the other parent when he was in one parent’s care.
·That the child not be subject to physical discipline.
·That the child continue to attend treating professionals.
·That the mother and child consult a separate therapist skilled in family and individual child therapy and parenting therapy.
·That there was no requirement for the father to attend counselling.
·That the mother be informed of school and medical matters.
·That the parents be restrained from making critical or derogatory remarks about the other in the presence of the child.
On 25 October 2016 further orders were made by Sexton J.
On 18 January 2017 the child was admitted to the W Hospital due to kidney failure. The child was required to undergo surgery.
On 21 January 2017 the mother spent time with the child while he was in hospital. That time was supervised by C Group. On several occasions the child told mother that he wanted her to stay with him. The supervisor’s notes recalled the child as requesting the mother to “talk to him (father) now” about the prospect of her staying with him. The supervisor intervened and said “this is something that grown-ups need to sort out”.
On 24 January 2017 Ms E provided a letter supporting the mother having additional time with the child.
The father alleges that on 5 March 2017 that, following a supervised visit with the mother, the child disclosed to him that the mother’s behaviour during school visits was completely different to that of other supervised visits.
On 22 March 2017 the child was readmitted to hospital due to concerns from routine tests and high blood pressure. The child remained in hospital until 27 March 2017.
Between 23 March 2017 and 25 March 2017 the mother had supervised contact with the child. The father acknowledges these contacts were positive.
Between 13 May 2017 and 15 May 2017 the child was admitted to hospital in respect to his kidney condition.
On 9 June 2017 the child was admitted to Suburb S Hospital. The mother contends that the father listed his current wife as the mother of the child.
On 13 June 2017 Ms E provided a letter of support for the mother indicating support for the child visiting the mother at her home at Suburb R.
On 14 June 2017 the mother’s solicitors wrote to the father’s solicitors proposing that the parties agree to the child’s time with the mother to progress to one where professional supervision is replaced by the mother’s brother Mr O Heidke being present during that time.
On 1 August 2017 the child was admitted to hospital with a fever and he was found to be suffering from an infection.
On 4 August 2017 the mother’s solicitors wrote to father’s solicitors indicating that the mother was prepared to agree to visit the child at hospital on Tuesdays and Thursdays from 3pm to 5pm and on Saturdays from 10am to 12 noon with that time being supervised by her brother Mr O and his wife Ms Q Heidke.
On 7 August 2017 the father’s solicitors wrote to the mother’s solicitors indicating that the father was prepared to agree to the mother visiting the child on Tuesdays and Thursdays from 5pm to 6pm with that time being supervised by the father. The letter further indicated that the father was prepared to agree to the child spending time with the mother on Saturdays from 10am until 12 noon with that time supervised by C Group.
The father contends that in the period from 3 August 2017 until 9 August 2017, the mother visited the child outside of arranged and agreed times and, further, that the mother attended with the child’s maternal grandmother which was against the child’s wishes. The mother contends that the maternal grandmother did not attempt to see the child but, rather, waited in the waiting room for the mother.
On 9 August 2017 the child was discharged from hospital.
The father alleges that during the child’s visit with his mother on 16 September 2017 the mother did not provide the child with any food. This is denied by the mother.
The father alleges that on 14 October 2017 an incident occurred during family therapy which involved himself, the child, Ms E and the mother. The father alleges that the mother provided inappropriate information to the child regarding the donor process which included the mother’s capacity to be a donor and also the potential involvement of deceased donors. The father contends this discussion caused great distress to the child. Family therapy ceased on that day.
Between 23 October 2017 and 27 November 2017 the parties’ legal advisors exchange correspondence setting out each of the parties’ proposals in respect to parenting arrangements. Regrettably, the parties were unable to reach agreement and on 27 November 2017 the father filed an Application in a Case seeking the orders set out immediately below.
applications
The father’s application
The orders proposed by the father as set out in his minute of order received on 6 December 2017 were as follows:
1. That the father be granted sole parental responsibility for the child [X] born … 2007.
2. That the child [X] live with the father.
3. That the mother spend time with the child for 4 hours per fortnight, on a Saturday from 10:00am to 2:00pm supervised at all times by a professional accredited supervisory organisation approved by the father, with the mother to pay the costs of such supervision.
4. That for the purposes of Order 3 above, the father will deliver the child [X] to the agreed and nominated destination at the commencement of time and will collect the child [X] at the conclusion of time.
5. That the father will facilitate the child [X] to communicate with his mother via telephone, facetime, or Skye whenever the child indicates that he wishes to speak to his mother.
6. The mother is hereby restrained from discussing with the child [X] the following:
a. The possibility of a kidney transplant and/or possible kidney donors including her possible compatibility as a kidney donor; and
b. The possibility of the child returning to her residence at Suburb R or elsewhere or returning to live with her in her home.
7. Without admitting the necessity for such an order, each parent is restrained from:
a. Denigrating the other parent or a person with whom the other parent has a relationship, in the presence of hearing of the child, or permitting the child to remain in the present or hearing of any other person denigrating the other parent or person with whom the other parent is in a relationship with, with the parents knowledge or in their presence;
b. Discussing the proceedings or any allegations raised in these proceeding with the child or permitting any other person to do so with their knowledge or in their presence;
c. Permitting the child to have access to any of the documents filed in these proceedings;
d. Communicating any information intended for the other parent through the child;
e. Causing the child to be a medium in any way to adult matters between the mother and the father or between the mother and the father and any other person.
8. That the father be permitted to travel interstate and/or overseas with the child provided that he provides the mother with 21 days notice of his travel plans including dates and times of travel.
9. That the father shall retain the child's Passport, Birth Certificate and his medical records contained in the "Blue Book". The mother is to return the Blue Book to the father within 7 days of the date of these Orders.
10. That the mother be restrained from allowing her parents to attend any of the supervised visits with the child the child.
11. That each party be at liberty to provide a copy of these Orders to any third party necessary to ensure compliance with these Orders.
12. That each party shall do all things and sign all documents necessary including providing all consents to give effect to these Orders in the time periods prescribed in these Orders.
13. That in the event either party fails, refuses of neglects to execute any deed, document or instrument necessary to give effect to all or any of these Orders within 14 days of a written request to do so, then the Registrar of the Federal Circuit Court of Australia, Sydney registry shall be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said defaulting party and do all such things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of Affidavit. The defaulting party shall pay the costs of the party required to take such action pursuant to this Order.
14. That there be no Order as to costs.
However in his case outline document dated 6 December 2017 the father indicated he sought:
·the suspension of orders made on 25 October 2016, the discharge or (sic) order 7 of the orders made on 17 August 2016;
·sole parental responsibility for the child;
·an update of Dr P’s Report;
·A report from Mr K, the child’s psychologist;
·During the child’s periods of hospitalisation limited supervised time with the mother;
·Restraining order against the mother from discussing the child’s kidney transplant.
The mother’s application
The mother sought the orders as set out in her Case information document filed on 7 December 2017 as follows:
1. That orders 6 and 7 of the orders dated 17 August 2016 be set aside;
2. That the suspension of orders 3, 6 and 7 of the orders dated 6 December 2012 (pursuant to order 1 of 23 June 2016), be lifted on a date to be fixed by the Court;
NOTATION:
The mother anticipates that it will be in [the child's] best interests to make additional spend time with orders that gradually increase [the child's] time with her until the position in the Orders made 6 December 2012 is restored. As to the particular staggered arrangement the mother will propose, this will be subject to the expert evidence put before the Court at final hearing and the mother will provide an amended Minute of Order once the evidence is available. The mother accepts other arrangements for the child pursuant to the orders dated 6 December 2012 (such as overseas travel), may be subject to [the child's] health.
3. That order 12 of the orders dated 6 December 2012 be varied as follows: "the child continue to attend upon his treating Doctors and Therapists, being Dr [K] (paediatrician), [Mr K] (psychotherapist), such therapist for the mother and the child as appointed by the Court, [Suburb S] Medical Centre and such professionals only be changed with the consent of both parties in writing"
4. That order 16 of the orders dated 6 December 2012 be varied as follows:
"The mother continue to attend upon her psychologist, [Ms T], or such replacement as recommended by the mother's general practitioner, at least monthly, at such frequency and for as long as recommended by the psychologist";
5. That order 20 of the orders dated 6 December 2012 be set aside.
The Independent Children’s Lawyer’s proposed orders
The orders proposed by the Independent Children’s Lawyer (“ICL”) were as follows:
1. That the Mother shall cease engagement with [Ms E] for Family Therapy with [the child].
2. That the Mother shall attend up a family therapist as recommended by [Dr P] with [the child].
3. That the mother bear all costs of such therapy.
4. The father shall make [the child] available for such therapy, provided it takes place on a Saturday.
5. Upon the parties paying into the Trust Account of Legal Aid NSW the sum of $6600 each for payment by Legal Aid NSW to [Dr P] in respect of his fees upon completion of his updated expert report to that released by [Dr P] on 17 October 2016;
6. The parents shall be responsible for:
6.1 Payment of the costs of preparation of the report; and
6.2 The Single Expert's subsequent attendance at Court (if required), noting that any subsequent attendance at Court may incur costs for attendance at Court, considering further material filed by or on behalf of the parties, any additional interviews required and considering further documents which may be produced pursuant to a subpoena.
7. To facilitate Order 2, the mother and the father shall:
7.1 By 30 December 2017 pay into the Trust Account of Legal Aid NSW the sum of $6600.00 each;
7.1.1 The Single Expert shall not be required to release his report to the Court until payment for that report has been made.
7.2 In the event that the Single Expert is required for cross examination by any party, including the Independent Children's Lawyer, at any hearing in these proceedings:
7.2.1 28 days prior to notification of the allocation of any final hearing dates in the matter, the mother and the father shall do all acts and things to pay into their solicitor's trust accounts, money to cover half of any payments required to cover the Single Expert's additional costs, as set out in Order 3.1.
7.2.2 Any costs shall be paid within 7 days of receipt of a Tax Invoice from the Single Expert.
8. That the parties shall facilitate the preparation of the report including attending on and arranging for [the child] to attend upon the single expert witness.
9. Leave be granted to the independent children's lawyer to have photocopy access to material produced under subpoena for the purpose of providing the same to [Dr P] and that the fees in respect of that photocopying be waived.
10. The Court notes that the independent children's lawyer is under no obligation to brief the single expert in terms of order 1 above until the parties have paid the sum set out in order 1 to Legal Aid NSW.
11. That the parties are hereby restrained from discussing with the child his kidney transplant and possible kidney donors unless done so in the presence of and under the guidance of the child's renal specialist.
12. That pursuant to s.628 of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
13. That pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
Evidence and witnesses
The father relied upon the following documents:
a)Application in a Case filed 27 November 2017;
b)Affidavit of father filed 27 November 2017; and
c)Case Outline provided to the Court on 6 December 2017.
The mother relied upon the following documents:
a)Response to an Application in a Case filed 5 December 2017;
b)Affidavit of the mother filed 5 December 2017;
c)Affidavit of Ms E filed 5 December 2017;
d)Affidavit of Mr O Heidke filed 4 December 2017;
e)Report of Dr P released 20 October 2016;
f)Parenting Questionnaire dated 27 November 2017; and
g)Case Outline provided to the Court on 6 December 2017.
The ICL relied upon the following documents:
a)Report of Dr P released 20 October 2016; and
b)Case Outline provided to the Court on 8 December 2017.
Concepts and principles
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to parenting proceedings. Section 60B sets out the objects and principles of Part VII. The objects of Part VII, as found in subsection (1), are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring their parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
More generally, the Act makes it clear that, in exercising its jurisdiction, the Court has a responsibility to “protect the rights of children and to promote their welfare”.[1]
[1]Family Law Act 1975 (Cth), s 43(1)(c).
Section 61DA(1) provides that the Court must apply a presumption that “it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child”. Relevantly for these proceedings, section 61DA(3) provides that:
When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
In this matter, the father alleges that having regard to the history of comments that the mother has made to the child, that the Court should order that the father have sole parental responsibility. The father’s concerns primarily relate to what he contends were inappropriate comments made by the mother to the child concerning the prospect of her being a kidney donor, together with a further comment regarding the prospect of a kidney being transplanted from a deceased person.
In this case, there was no specific evidence, that can be accepted in these interim proceedings, that amounts to conduct on the part of the wife that adversely impacted upon the healthcare the child received or the educational instruction that the child received.
Nevertheless, counsel for the father contended that the mother’s mental health is such that the Court should assume “almost on a res ipsa loquitur” basis that, despite any restraint that may be imposed by the Court, it is likely that she will say the wrong thing to the child and, in particular, will say something that is upsetting to him.
Res ipsa loquitur is a Latin phrase that literally translated is “the thing speaks from itself”. It is a doctrine of Tort Law that one is presumed to be negligent if they had exclusive control of whatever caused a person’s injury even though there is no specific evidence of an act of negligence.
In fairness to counsel for the father, I construed his reference to the Latin phrase as being to make a point of emphasis highlighting a potential risk to the child as opposed to submitting that the doctrine that applies in the area of Tort Law has similar application in the area of Family Law.
I acknowledge that, particularly if she becomes stressed and anxious, there is a risk that the mother will say something to the child that is upsetting to him. However, that risk can adequately be mitigated by orders restraining the mother from discussing certain aspects of possible medical procedures with the child and also requiring a responsible adult to be present when the child spends time with the mother.
On that basis, in accordance with section 61DA(3), I have determined that in these interim proceedings it would be inappropriate to apply the presumption of equal shared parental responsibility. It is therefore unnecessary to consider whether the child should spend equal or substantial and significant time with each parent in accordance with section 65DAA. In those circumstances, the Court’s task is to determine directly what orders are in the best interests of the child.
Determining what orders are in the best interests of the child.
Section 60CC sets out the list of matters that the Court must have regard to in determining what is in the child’s best interests. Section 60CC(2) sets out the primary considerations which are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, section 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (section 60CC(2)(b)).
Additional Considerations
Section 60CC(3) sets out additional considerations in determining what is in the child’s best interests. I will discuss those considerations in greater detail below. Those considerations can conveniently be grouped under the following topics:
·Issues relating to the children – their views, level of maturity, culture and relationships. These considerations are set out in paragraphs (a), (b), (g) and (h) of section 60CC(3).
·Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility. These are set out in paragraphs (c), (ca), (f) and (i) of section 60CC(3).
·Issues of family violence and whether there has been a family violence order. These considerations are set out in paragraphs (j) and (k) of section 60CC(3).
·Effect of change. This consideration is set out in paragraph (d) of section 60CC(3).
·Practical difficulty of implementation of orders. This consideration is set out in paragraph (e) of section 60CC(3).
·Avoiding further proceedings. This consideration is set out in paragraph (l) of section 60CC(3).
·Other relevant matters. This consideration is set out in paragraph (m) of section 60CC(3).
Approach
In Banks & Banks [2015] FamCAFC 36 (“Banks & Banks”), the Full Court said at paragraph 48 that:
It should also be said that in parenting proceedings as in all civil litigation, it will be the issues that are joined that will dictate which section 60CC factors that are relevant. By their nature, interim proceedings should be confined to those issues which, in the best interests of the children, require determination prior to a proper determination at trial.
In this case, orders that best support the child in dealing with his serious physical illness and impending major surgery is the consideration that overwhelms all other matters.
Applying Section 60CC(3) Considerations
While I have considered all of the factors set out in section 60CC the following considerations have been relevant to the orders I have made in these proceedings.
Issues Relating to the Children - Their Views, Level of Maturity, Culture And Relationships
Any views expressed by the child
Section 60CC(3)(a) requires the Court to have regard to any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views. The chronology set out above describes several instances where tension arose between the child and the mother. This includes the serious incident that occurred on 28 April 2016 where the child approached the mother with a knife.
On the other hand, the notes of the supervising agency record that when he was ill in hospital on 21 January 2017, the child expressed a desire for his mother to stay with him.
More broadly, it appears that the child wishes to continue living with his father and spend some time with his mother. This issue, however, requires more detailed analysis that will be provided in an updated report that is being obtained from the single expert Dr P.
The nature of the child’s relationship with other significant persons.
Section 60CC(3)(b) requires the Court to consider the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child).
In his report dated 17 October 2016, Dr P set out a detailed analysis of the child’s relationship with each of his parents, his father’s present wife and the child’s half sibling.
It is unnecessary, for the purpose of these interim proceedings, to set out Dr P’s observations and opinions in detail. It is sufficient to note the following:
[The child] is positive and secure relationship with the father continues to be enriched and augmented by the child’s positive and secure attachment relationship with the father’s partner.[2]
…
I was encouraged that [the child] appeared to overall enjoyed a half-sister, but also had freedom within the family to acknowledge negative reactions or attitudes towards her.[3]
…
… when the circumstance is contained and the mother is emotionally contained, the child and mother have a positive relationship.[4]
…
But, I am concerned that the child-mother relationship (particularly when the two are alone) continues to be one of a “tussle between two forces of fluctuating but approximately equal strength”… And thus is uncontained and insecure for [the child].[5]
[2] Report of Dr P dated 17 October 2017 at [120].
[3] Ibid at [129].
[4] Ibid at [174].
[5] Ibid at [177].
The maturity, sex, lifestyle and background of the child and either of the child’s parents
Section 60CC(3)(g) requires the Court to consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant.
In this matter, it is very relevant that the child is suffering from a serious kidney illness that will require him to undergo a kidney transplant. The Court was advised that, if a donor can be found, that will occur in May 2018.
In the meantime, the child has dialysis on a daily basis and it is likely that he will have several periods of hospitalisation.
The child is literally facing the fight of his life. It is in the best interests of the child for orders to be made that will, as far as possible, enhance his support and sense of security. This will only occur if, as far as possible, the child can be protected from continuing to be embroiled in his parents’ disputation which has now lasted for eight years.
Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility
The capacity of each of the child's parents
Section 60CC(3)(f) requires the Court to consider the capacity of each of the child's parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs.
No issue has been raised in respect to the father’s parenting capacity. He has provided for the child’s needs on a daily basis including providing devoted attention to the child’s complex health challenges.
The father challenges the mother’s parenting capacity. He contends that the mother has a significant mental health issue that prevents her from providing for the needs of the child as contemplated by section 60CC(3)(f).
The precise nature of the mother’s mental health challenges will be considered at final hearing.
While it is possible that, at final hearing, the opinion of Dr P will be challenged in cross-examination, I note that at paragraphs 293, 294 and 295 of his report dated 17 October 2016, Dr P states as follows:
I think it is likely that the mother continues to experience disrupted function when anxious, from a moderate to a profound degree.
I would now feel that the mother is most likely mental health diagnosis is what I described in the initial report as the “alternative diagnosis” of “a chronic fluctuating anxiety and depressive disorder on a background of developmental trauma related to emotional abuse by the father during adolescence, then perpetuated and exacerbated by the former associated with derogatory and dismissive treatment from the father during the parents’ relationship”.
I would consider that what I then put forward [in his first report] has the most likely diagnosis of a chronic psychotic disorder such as schizoaffective disorder, may be present or may have been present in the past, but if so, there has not been evidence of overt psychotic symptoms for quite some years now, and the clinical presentation is of anxiety. But, I note that the mother did have a long period of mental illness during her adolescence and young adulthood , with a presentation suggestive of psychotic disorder, and antipsychotic treatment prescribed”.
In these interim proceedings it is not possible to determine the precise nature of the mother’s mental health challenges or their cause. I accept however that, whatever its cause, the mother can experience anxiety when under stress and this impacts upon her parenting capacity.
Having noted that mental health issue, I also note evidence that the mother is seeking appropriated therapy to address the challenges that she faces. This litigation is itself a significant stressor. It is inevitable that the parties will also experience significant pressures in the coming months as they deal with their child’s illness.
Effect of change
Section 60CC(3)(d) requires the Court to consider the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
The mother seeks orders to restore parenting arrangements whereby the child would spend time at her residence and the time that the child spends can progress to where there is no professional supervision. In circumstances where the distressing event of 28 April 2016 occurred at the mother’s home, there is an unacceptable risk that returning to that home in his current vulnerable state may cause some anguish and distress.
Similarly, while Dr P has recommended that the child spend time with the mother in the presence of a responsible adult, rather than a professional supervisor, the mother has not satisfied me that, in the context of the challenges faced by the child, there should be a change in the current core arrangements for the child to spend time with the mother. Those core arrangements are set out in the orders of Sexton J to which I have earlier referred.
Practical difficulty of implementation
Section 60CC(3)(e) requires the Court to consider the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
The parties live a considerable distance from each other. This presents some difficulty in circumstances where the child is required to undergo dialysis at about 4.00pm each day. In those circumstances, there is little time available for the mother to spend mid-week after school time with the child.
As a result of those difficulties, the parties have reached an agreement for the mother to spend time with the child on two days per week during his school lunch time. The child’s school has supported this arrangement however has indicated that the arrangement will need to be varied as the child enters year 5 next year.
Other matters
Section 60CC(3(m) requires the Court to have regard to any other fact or circumstance that the Court deems relevant.
In this matter, the mother sought orders for a restoration of family therapy. That course of action was supported by the ICL to the extent that it may be recommended by Dr P. At the conclusion of argument, counsel for the mother indicated that the mother was prepared to adopt that proposal by the ICL.
In the coming months, the child will inevitably be preoccupied with the medical treatment that he is receiving and the associated stress that involves. For half of his life, he has been caught in the firing line of his parents’ dispute.
In the time that he has available outside of the time that he is receiving medical treatment, he is entitled to be a 10-year-old boy. To the extent that he is able, he should be able to play games and participate in social and recreational activities consistent with a child of his age.
Taking up some of that limited free time by requiring the child to attend family therapy, which therapy is necessitated by his parent’s ongoing disputation is, in my view, totally unjustified at this point in time.
Clearly, as the child recovers, further consideration can be given to this matter in the context of the updated report that the Court and the parties will receive from Dr P.
Primary considerations
Meaningful relationship
In this matter, both parties acknowledged that it is in the child’s best interests to have a meaningful relationship with both parents in terms of section 60CC(2)(a). I accept that to be the case.
In McCall & Clark[6] the Full Court accepted that an appropriate interpretation of the concept of “meaningful relationship” was provided by Brown J in Mazorski v Albright (2007) 37 Fam LR 518 at paragraph 26, where His Honour said:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one. (emphasis added)
[6] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92.
In McCall & Clark (supra) the Full Court, at paragraph 117, referred to the comments made by Bennett J in G & C [2006] FamCA 994, where it was said that the enquiry was a “prospective” one which requires a Court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.
In other words, the focus is upon whether the child having a meaningful relationship with a particular parent will be of advantage to the child in the future. In this case, the Court is concerned with the immediate future in the period until final hearing.
The Full Court in McCall & Clark (supra) continued at paragraph 122:
… No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
In Finton and Kimble,[7] Walters J said that, in seeking to discharge the Court’s broader obligation to make orders that are in the best interests of the child:
…the Court is required to consider, as one of a large number of factors, the benefit to the child of having such a meaningful relationship: see Mulvaney & Lane (2009) FLC 93-404 at [89] and Champness & Hanson (supra) at [103]. As the Full Court said in Jurchenko & Foster [2014] FamCAFC 127 at [123]:
… [Having] a "meaningful relationship" with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child's best interests.
[7] [2017] FCWA 106 at [37].
Having a meaningful relationship with both parents has the potential to be a real source of strength to the child. On the other hand, it also has the potential to present a risk to the child if either or both of the following occur:
·he is exposed to irrational conduct of his mother at a time that she may suffer from an acute mental health episode.
·he is caught in the cross-fire of his parents’ 10 year conflict.
How to mitigate against these risks will be discussed below.
Unacceptable risk
Determining whether a child would be at an unacceptable risk with a parent involves a balancing exercise. In B and B (1993) FLC 92-357 at 79,778, the Full Court described the task of determining whether a child would be at an unacceptable risk in spending time with a parent as being to “achieve a balance” between the risk of detriment to the child from abuse and “the possibility of benefit to the child from parental access”. Specifically, the Full Court said it is necessary to determine whether “that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access”.
In M v M (1988) 166 CLR 69 the High Court said at paragraph 78:
To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of [harm].
Writing extra-judicially, Hon. John Fogarty AM, a former judge of this Court said):
… unacceptable risk in the High Court’s formulation [in M v M] requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is ‘acceptable’ when balanced against other factors and other orders.[8]
[8] Hon. John Fogarty AM in ‘Unacceptable Risk – A return to basics’ (2006) 20 Australian Journal of Family Law 249 at 261.
Where an unacceptable risk is alleged, the Court must give consideration to the facts of the case and decide whether or not those facts could reasonably be said to raise an unacceptable risk of harm.[9]
[9] Stott & Holger and Anor [2017] FamCAFC 152 referring to (N and S and the Separate Representative (1996) FLC 92-655 per Fogarty J; Napier and Hepburn (2006) FLC 93-303, per Warnick J adopted with approval in Potter and Potter (2007) FLC 93-326 at [124] and [125]; Johnson and Page (2007) FLC 93-344 at [66] and [67]).
In interim proceedings it is difficult to identify unacceptable risk and determine whether reasonable safeguards can mitigate against that risk. In Cowling v Cowling (1998) FLC 92-801 at paragraph 18 the Full Court said, in respect to interim proceedings:
Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties.
Despite the limitations on the Court’s ability to make findings in respect to controversial facts, the Court is not relieved of its obligation to consider risk. In that respect as in SS v AH,[10] the majority of the Full Court (Boland and Thackray JJ) said:
… Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
[10] [2010] FamCAFC 13 at [100], see also Keats & Keats [2016] FamCAFC 156 at [9] and Salah & Salah (2016) FLC 93‑713 at 81,516 – 81,517 [39] – [40].
It is to be observed that the reference, by the Full Court in SS v AH,[11] to “probabilities” does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect a child from that risk. It is clear that in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk,[12] as long as there is a proper basis for those “possibilities”.
[11] Ibid.
[12] Malec v J C Hutton Pty Ltd (1990) 169 CLR 638.
In this matter, the father has expressed concern regarding comments that the mother has made to the child in respect to the prospect of her being a donor in circumstances where the father contends that possibility had not been confirmed. The father also expresses concern about the mother discussing with the child the prospect of a deceased person being a donor.
It is not possible in these interim proceedings to determine the precise content of any relevant conversations. However, there is a plausible possibility that the mother has made comments in respect to that matter that have upset the child. The father’s apprehension has some substance in circumstances where the mother has declined to provide an undertaking that she would, in the future refrain from discussing those matters.
The father contends that as a result of the risk of the mother making such comments, as well as the potential for the mother to engage in irrational behaviour when she has an acute mental health episode, the child’s time with the mother should be supervised by a professional contact service.
While I can understand the father wishing to ensure that the child is not exposed to a stressful situation, I am of the view that the risks that he is concerned about can adequately be addressed by the restraints that I intend to impose as well as requiring another responsible adult to be present when the child is spending time with the mother.
Orders
Having regard to those consideration to which I have referred, my view is as follows.
There should not be a change in the core parenting arrangements set out in paragraph6 of the orders of Sexton J dated 17 August 2016 at this point in time.
There should be provision for the mother to spend time with the child at his school provided that the arrangements are approved by the school and agreed to by the father. Accordingly, order 7 of the orders by Sexton J dated 17 August 2016 will be varied to require the father to agree to the spend time arrangements involving the child’s school.
Both parties agree that provision should be made for the mother to spend time with the child when he is hospitalised. The dispute concerns the number of hours and whether that time should be supervised. In my view, having regard to the other demands that the child will face in hospital, including treatment and the need to attend long-distance learning tuition, the number of hours proposed by the father are appropriate.
However, there is, in my view, no need for professional supervision to be engaged. Instead, I propose making orders for a responsible adult as agreed between the parties to be present and in default of agreement, that person be Mr Mr O Heidke.
As indicated above, there is no justification, in my view, in eating into the child’s free time by requiring him to attend ongoing family therapy. That matter can be further considered at the final hearing in light of the updated report of Dr P.
In light of concerns that have been raised regarding comments that have been made by the mother, to the child, concerning the kidney transplant surgery that it is hoped he will be able to undergo, I propose to impose a restraint in respect to the nature of that communication. The restraint proposed by the ICL is, in my view, appropriate, save insofar as it will be necessary for one parent to communicate with the child in respect to those matters in circumstances that may not involve a medical professional and accordingly, the restraint should not apply to the father.
The orders set out at the commencement of these Reasons for Judgment reflect these conclusions.
I certify that the preceding one hundred and forty-one (141) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 22 December 2017.
Associate:
Date: 22 December 2017.
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