Badeni and Dangerfield
[2020] FCCA 344
•27 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BADENI & DANGERFIELD | [2020] FCCA 344 |
| Catchwords: FAMILY LAW – Where final parenting orders have been made – where parties have consented to reopen proceedings – where father seeks specific orders for one of five children the subject of the proceedings, which child has diabetes, to be fitted with a Continuous Glucose Monitoring Device – where father seeks sole parental responsibility of that one child to be able to authorise the fitting of that device – where the father alleges that the matter falls within the Court’s welfare or parens patriae jurisdiction or that the Court’s approval is required as a special medical procedure – where the device is not therapeutic and, hence, Re Marion is not relevant as a “treatment” decision and certainly not an irreversible treatment decision is not required – where the factual matrix of the matter reveals nothing more than a parenting dispute – where the mother seeks to re-open orders for the father’s time with the diabetic child based on concerns as to the father’s address of the child’s health needs – whether there is an unacceptable risk to the child if the monitoring device is not fitted – whether there is an unacceptable risk to the child if the child spends overnight time with the father – no unacceptable risk established – where parties have extremely poor and ineffective communication – where the father has sought to engage numerous third parties in issues between the parties – whether further counselling is warranted – where the only means of reducing conflict and the child’s exposure to conflict is to allocate sole parental responsibility – where without allocation of parental responsibility for the issue to one parent there will likely be ongoing conflict and disputation and. Possibly, further litigation (nothing that the medical issue has been the cause of this tranche of litigation) – where both parents have demonstrated a lack of insight in some respects – whether children’s best interests supports or precludes both parents being involved in the children’s education – where no significant change in circumstances is apparent since the matter was last concluded – where the orders entered into between the parties by consent are unnecessarily complex and require redrafting – where redrafting and reaffirming the majority of the orders previously made, and addressing parental responsibility for one child’s medical care, is all that is required to meet the children’s best interests. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 13C, 60B, 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3)(e), 60CC(4), 61DA, 65DAA(5), 65Y 67ZC |
| Cases cited: Rice & Asplund (1979) FLC 90-725 Secretary of the Department of Health and Community Services v JWB and SMB [1992] HCA 15 James Spigelman ‘Mediation and the Court’ (2001) 39(2) Law Society Journal 63 |
| Applicant: | MR BADENI |
| Respondent: | MS DANGERFIELD |
| File Number: | CAC 316 of 2017 |
| Judgment of: | Judge Harman |
| Hearing dates: | 16 and 17 January 2020 |
| Date of Last Submission: | 17 January 2020 |
| Delivered at: | Newcastle |
| Delivered on: | 27 February 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Finch (on a direct brief) |
| Counsel for the Respondent: | Ms Simpson |
| Solicitors for the Respondent: | Dobinson Davey Clifford Simpson |
ORDERS
Discharge all prior parenting orders with respect to the children:
V, born in 2003;
W, born in 2005;
X, born in 2009;
Y, born in 2011; and,
Z, born in 2013.
Ms Dangerfield, the mother of the above children, shall have sole parental responsibility for making medical treatment and health decisions for the child Y, provided, however, that:
(a)Ms Dangerfield shall ensure that Mr Badeni is authorised, at all times, to obtain copies of any medical reports that are produced with respect to Y; and,
(b)Mr Badeni is able to attend medical appointments with respect to Y and, in particular, with respect to the management and treatment of her type 1 diabetes and provided, further, that for the purpose of quarterly clinic appointments for Y, and unless the parties agree to the contrary:
i.Ms Dangerfield and Y shall attend the appointment in person;
ii.Mr Badeni shall attend the appointment by telephone;
iii.Mr Badeni shall be able to arrange and attend face-to-face appointments with Y’s medical treatment team through B Hospital provided that he first gives notice to Ms Dangerfield that he will be arranging such an appointment and that the appointment occurs at a time when neither Ms Dangerfield or Y are present;
(c)Both parents shall do all things necessary to ensure that all data from any glucose monitoring device used by them for Y or by Y herself is uploaded to Y’s file maintained by B Hospital not less than 24 hours prior to any appointment or as soon as is practical before the appointment and Ms Dangerfield shall ensure that any data from the monitor used at Y’s school is obtained and similarly uploaded.
(d)Ms Dangerfield shall ensure that Mr Badeni is advised, at all times, (whether directly by Ms Dangerfield or through her providing authority and direction to others to do so), of any change to or recommendations made relating to the management of Y’s diabetes.
Subject to order (2) above, both Mr Badeni and Ms Dangerfield shall have equal shared parental responsibility for their children V, W, X, Y and Z.
W, X, Y and Z shall live with their mother, Ms Dangerfield.
V shall live with and spend time with each of her parents in accordance with her wishes.
W, X, Y and Z shall spend time with their father, Mr Badeni, as follows:
(a)During school terms, from 4.30 pm Friday until 8 am the following Monday (extending to 2pm Monday in the event of a long weekend or pupil free day) for the first three of each four weekends, to commence with the first weekend of each school term;
(b)From 4.30 pm Friday on the last day of school term until 2 pm on the second Monday of each short school holiday period (being those which follow the conclusion of terms 1, 2 and 3);
(c)During the Christmas/New Year school holidays as follows:
i.In 2020 and each alternate year thereafter:
1.From midday on the first Sunday after term 4 ends until midday 23 December; and,
2.From midday 28 December until midday 18 January;
i.In 2021 and each alternate year thereafter:
1.From 4:30pm on the last Friday of the Term 4 school term until midday on the following Sunday;
2.From midday 23 December until midday 28 December; and,
3.From midday 18 January until midday on the last Sunday before the commencement of Term 1.
(d)On the birthday of each of the children from 4.30 pm until 7.30 pm (if a school day) and from midday until 5:30pm if a non-school day (and Ms Dangerfield shall spend the corresponding period with the children if the children are in Mr Badeni’s care on the birthday);
(e)From 10am Father’s Day until 8am the following day (Monday) for the Father’s Day weekend in each year (and in the event that the children are in or scheduled to be in Mr Badeni’s care on Mother’s Day then the children shall return to their mother 10am Sunday and remain with the mother until 8am the next day);
(f)From 9.00am Easter Sunday until 8.00am the Tuesday following in the event that the children are no not already in Mr Badeni’s care for the Easter weekend (and if the children are in Mr Badeni’s care for the Easter weekend then they shall spend the Sunday to Tuesday period with their mother Ms Dangerfield);
(g)Such further and/or other periods as are agreed between the parents from time to time.
For the purpose of Mr Badeni’s time with the children Mr Badeni shall collect the children from and return the children to their school or, if not a school day, the home of the maternal grandparents “C”
Each parent shall be entitled to communicate with the children by telephone, face time or similar electronic or video service between 5pm and 5.30pm on any Sunday that the children are not or have not been in their care and with respect to same:
(a)The parent wishing to speak with the children shall initiate the call, either to the mobile telephone service of one of the elder children or of the other parent; and
(b)The parent who has the care of the children shall ensure that their phone is available, switched on and in a mobile service area at those times and shall allow the children to speak with the other parent.
The children shall be at liberty to communicate with either parent by telephone, face time or similar electronic or video service at any reasonable time requested by the children and the parent with whom the children are living at that time will facilitate the call being made.
Each parent will advise the other as soon as practicable of any medical matter relating to the children if it is likely to impact the other parent’s care of the children.
Each parent will advise the other as soon as practicable in the event of an emergency medical attendance or hospitalisation of a child or the children.
Mr Badeni shall ensure that either he or his partner Ms D are present at all times while Y is in or to be in Mr Badeni’s care pursuant to these orders and that at all times while Y is in Mr Badeni’s care, that Mr Badeni or his partner Ms D (having received training at B Hospital in relation to the administration of insulin to Y) are present and maintain a glucagon kit.
The parties shall maintain a complete log book:
(a)in which they record all foods given by them (or others while she is in their care) to Y;
(b)her blood glucose levels at all times assessed;
(c)details of insulin given; and
(d)provide that log book to the other party at the conclusion of each care period.
Other than is provided in these orders, Mr Badeni shall be and is hereby restrained from:
(a)Communicating with the schools save briefly in writing to the Principal of each school solely in relation to the progress of the child or children at the school and Mr Badeni will not include external parties in the communication (save for Ms Dangerfield, who will be copied into all communications with the schools);
(b)Degrading or disparaging Ms Dangerfield or Ms Dangerfield’s care of the children in communications with the children’s schools (or other educational facilities), sporting groups, medical or other health care providers, or to any similar individual or entity whatsoever;
(c)Including external parties into email correspondence when communicating with Ms Dangerfield.
Each parent shall forthwith do all things, sign all documents and give all consents, authorities and instructions as are necessary to enable each parent to be recorded (if not already so) as a parent and emergency contact person with any school attended by V, W, X, Y and/or Z and, further:
(a)To enable each parent to obtain directly from the school all and any information, reports, newsletters or other materials or information they desire; and
(b)To receive advice of any event at the children’s school to which parents or caregivers are invited or encouraged to attend.
To the extent that it is not clear and apparent from order 1 providing for the parents to have equal shared parental responsibility, each parent shall be entitled to attend all and any events at the school/s attended by the children and to which parents and caregivers are invited or encouraged to attend subject only to the following:
(a)Each parent shall advise the other by email that they intend to attend any event at the school of the children, or any of them, which occurs at a time when the children are in the care of the other parent to be forwarded not less than 72 hours before the event; and
(b)Whilst so attending, the parents shall not attempt to engage or communicate with the other.
Pursuant to section 65Y of the Family Law Act 1975, each parent shall be and is, hereby, authorised, to remove the children V, born in 2003, W, born in 2005, X, born in 2009, Y, born in 2011 and, Z, born in 2013 from the Commonwealth of Australia at such times, for such periods and travelling to such destinations as they may desire provide such travel occurs during periods that the children are in their care pursuant to these orders, and provided that:
(a)Each parent shall provide to the other not less than 45 days written notice of their intention to travel with the children, including a written itinerary of travel sufficient to identify the place or places that will be visited, the accommodation that will be occupied during that travel, and providing a copy of return travel documents;
(b)Ms Dangerfield shall hold the children’s passports at all times other than when they are being utilised for travel, and shall provide those passports to Mr Badeni, in the event that he intends to travel at any time and has given notice in accordance with this order, not less than 21 days prior to the anticipated travel and Mr Badeni shall return the passports to Ms Dangerfield within 48 hours of returning to the Commonwealth of Australia.
All outstanding Applications and Responses are dismissed and all issues are removed from the list of matters awaiting hearing.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena or pursuant to section 69ZW of the Family Law Act 1975 be returned to the person or organisation who produced same or securely destroyed.
IT IS NOTED that publication of this judgment under the pseudonym Badeni & Dangerfield is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
CAC 316 of 2017
| MR BADENI |
Applicant
And
| MS DANGERFIELD |
Respondent
REASONS FOR JUDGMENT
These proceedings relate to future care arrangements for five children, namely:
V, born in 2003 (presently aged 16 years);
W, born in 2005 (presently aged 14 years);
X, born in 2009 (presently aged 10 years);
Y, born in 2011 (presently aged eight years); and,
Z, born in 2013 (presently aged six years).
Whilst I have indicated that the proceedings relate to future care arrangements for these five children, the reality is that the focus of this determination is largely upon the arrangements for young Y, the eight (nearly nine) year old daughter of these parties. Y has Type 1 Diabetes and that medical condition and dispute as to its monitoring and address, is at the centre of this controversy.
The parties to the proceedings are the parents of the above children, Mr Badeni, the children’s father (and the applicant in these proceedings) and Ms Dangerfield, the children’s mother (and the respondent in these proceedings).
V, W, X, Y and Z also have two elder siblings, Ms E and Mr F. Both Ms E and Mr F are now over the age of 18 years and do not, other than as regards certain aspects of the evidence in the proceedings, important aspects of the evidence as regards Mr F, have any bearing upon this determination.
Prior proceedings
This is the second tranche of proceedings between these parties. The first tranche of proceedings between the parties was concluded by orders made, by consent, on 17 August 2017. I shall return to those orders shortly.
The first tranche of proceedings were commenced by an Application Initiating Proceedings filed by Mr Badeni on 22 February 2017. The matter did not occupy any significant Court time, having resolved shortly after the second Court event.
In the earlier proceedings, it would not appear that a Response was filed by Ms Dangerfield (the filing of material having been unnecessary in light of the early conclusion to the proceedings).
The earlier tranche of proceedings had occurred in circumstances wherein Mr Badeni asserted some degree of urgency as certain changes had been made with respect to aspects of the children’s living arrangements and in particular, their schooling.
Up until the time that these parents separated, the children had attended certain public schools. Shortly prior to the proceedings commenced by Mr Badeni on the first occasion, Ms Dangerfield had effected a change in the children’s school registration and attendance. The children had been moved to the schools, which, by and large, the children (at least those who are relevant to this determination) presently attend.
The orders of 17 August 2017
The present orders, those made 17 August 2017, invested in these parents equal shared parental responsibility for their six children who were under the age of 18 years (including Mr F who has now turned 18). The orders otherwise provided that all six children would live with their mother, Ms Dangerfield, and would spend time with their father, Mr Badeni, for three weekends out of each four during school terms (from 4.30 pm Friday until 8.00 am Monday).
What would be immediately apparent is the potential utility of changeovers commencing with the conclusion of school and the resumption of school in the following week. However, the orders were deliberately drafted, as between the parties, on that basis so as to accommodate various aspects of the children’s care arrangements (as well as those of the parents) and the practicalities thereof. Importantly, the arrangements were prefaced upon a consideration of young Y’s diabetes.
Young Y was diagnosed with Type 1 diabetes in 2015. That was not long before these parents separated. That diagnosis and the monitoring and treatment of that condition assumes some real significance in these proceedings.
The August 2017 orders also provided a regime for the children’s practice of relationship with each parent during school holiday periods. Those orders (paragraphs 4–7 inclusive) go into some significant detail as to how arrangements will occur, particularly with respect to the “summer holidays”, (or the Christmas/New Year holiday period). During the hearing and particularly during submissions by counsel for each of the parties, some time was spent in seeking to explore whether the summer holidays might be more simply defined. It would seem a number of considerations obviate against simplification of those arrangements.
These proceedings and orders sought
These proceedings were commenced by an Application Initiating proceedings filed by Mr Badeni on 22 October 2018 (that is a little over a year since the making of the original orders in August 2017).
The Initiating Application filed by Mr Badeni sought the discharge of certain of the orders made 17 August 2017, but not their totality. The relief that was sought by Mr Badeni falls under general headings (as adopted from the Case Outline provided by Mr Badeni’s counsel) of:
a)Schooling;
b)Medical treatment for Y – Mr Badeni seeks to address this by his being invested with sole responsibility for such matters;
c)Medical treatment for the other children;
d)Travel;
e)Easter holiday arrangements;
f)Mobile telephones and telephone communication;
g)Significant sporting events;
h)Counselling (being counselling for the parents aimed at assisting their communication and “parental alliance”).
The Response filed by Ms Dangerfield on 23 November 2018 sought simply that Mr Badeni’s application be dismissed and that an order for costs be made. The Response, as observed in the case outline provided by counsel for Mr Badeni, has never been formally amended and, accordingly and on its face, Ms Dangerfield has not and does not seek positive relief. That, however, is not the case.
Ms Dangerfield seeks a broad suite of orders in accordance with a document, “Minute of Final Orders sought by the mother”, which might be paraphrased as raising issues for determination with respect to the following areas:
a)The allocation of parental responsibility – Ms Dangerfield seeks to discharge the order for equal shared parental responsibility incorporated within the orders of 17 August 2017 and to assume sole parental responsibility for the children W, X, Y and Z. Ms Dangerfield proposes equal shared parental responsibility with respect to V;
b)Orders with respect to V (it being common ground that V has, during the currency of these proceedings, passed to live predominately with her father);
c)Substantial variation of the orders providing for Y’s practice of relationship with her father. Ms Dangerfield seeks that the children W, X and Z continue to practice their relationship with Mr Badeni in accordance with the orders of 17 August 2017. Ms Dangerfield seeks that Y’s practice of relationship with her father be day-only time;
d)Specific orders with respect to Y’s diabetes management and treatment;
e)Certain specific orders with respect to the schooling of such of the children who continue to live in Ms Dangerfield’s care;
f)Certain injunctive orders and similar relief.
Material considered
In dealing with these proceedings, I have read and considered each of the documents identified by the parties through their respective counsel.
In the case of Mr Badeni I have read and considered:
a)His Initiating Application, filed 22 October 2018;
b)His Notice of Risk, filed 22 October 2018;
c)His trial affidavit, sworn or affirmed 23 December 2019 and filed 7 January 2020.
In the case of Ms Dangerfield, I have read and considered:
a)Her Response, filed 23 November 2018;
b)Her Notice of Risk, filed 26 November 2018;
c)Her trial affidavit, sworn or affirmed 20 December 2019 and filed the same date;
d)Portions of an earlier affidavit, sworn or affirmed 27 February 2017 and filed in Court in the earlier proceedings and in particular, paragraphs 11 – 28, 37 – 38 and paragraphs 51, 54, 55, 110, 127, 129, 133 and 134. It is this earlier affidavit which purports to give notice to Mr Badeni of the relief that is now pressed by Ms Dangerfield, together with the case outline document and minute of orders filed more recently. But for the earlier notice, at least in inferred from that earlier affidavit, there would be some difficulty in the case progressing, as it could be readily argued (although it was not) that due process would be denied to Mr Badeni by proceeding without notice.
In addition to the material identified above there are a number of exhibits in the proceedings comprising:
a)Exhibit A1, a food diary maintained by Mr Badeni;
b)Exhibit A2, certain material from B Hospital and manually tagged F4 and F5;
c)Exhibit A3, further material from B Hospital tagged F18 and F20;
d)Exhibit A4, material from Children and Young Persons Services ACT as tagged;
e)Exhibit R1, a bundle of emails between the father and the school and into which Ms Dangerfield has been copied;
f)Exhibit R2, a screenshot of text messages 14 July 2019;
g)Exhibit R3, material from the ACT Child and Youth Protection Services, being a report dated 4 December 2019 of some 17 pages;
h)Exhibit F, a minute of orders sought by Mr Badeni;
i)Exhibit M, a minute of orders sought by Ms Dangerfield.
Evidence
Each of the parties was required for cross-examination.
There are few, if any, issues of credit which arise in the proceedings. There are certain aspects of the evidence where the parties are not entirely at one, but very few.
An important aspect of the evidence comprises material that is annexed to the affidavits of the parties or either of them. In particular, and of some real importance, are three documents, namely:
a)A lengthy letter from the Catholic Education Office Canberra and Town G, dated August 2018. That letter is under the hand of a Mr H, School and Family Services Leader, and is some seven pages in length. It is addressed to Mr Badeni and comprises exhibit B10 to Mr Badeni’s affidavit.
b)A lengthy report from Canberra Health Services dated 24 October 2019 and addressed “to whom it may concern”, comprising exhibit D to Ms Dangerfield’s trial affidavit.
c)A lengthy letter from Canberra Health Services addressed to counsel for Mr Badeni and dated 8 May 2019. That letter, of some six pages, is under the hand of Dr J, Senior Specialist, Paediatric Endocrinology and Diabetes. It is common ground that Dr J is the treating doctor and “team leader” of the team of professionals at the B Hospital engaged with Y’s diabetes management and treatment.
I will deal with each of the three documents separately, even though they are not the sworn evidence of the parties. The authors of those documents have not been required for cross-examination and perhaps thankfully so. The content of those documents is somewhat illuminating and certainly significant for the determination of this dispute.
Ultimately, the most significant and relevant events that have occurred with respect to the proceedings can be taken from the chronologies provided by counsel for each of the parties as set out in the case outline documents provided by counsel. To that end, I am satisfied that the relevant and non-controversial matters can be summarised as follows
1967
Mr Badeni was born. Mr Badeni is presently 52 years of age.
1978
Ms Dangerfield was born. Ms Dangerfield is presently 41 years of age.
1998
The parties commenced cohabiting together.
1998
The parties married.
1999
The eldest of the seven children of the parties (Ms E) was born. Ms E is presently 20 years of age and soon to turn 21. She is studying at university and by all accounts, progressing well.
3 August 2001
The second child of the relationship, Mr F, was born. Mr F is presently 18 years of age. Mr F is somewhat estranged from his father Mr Badeni. There is an apprehended domestic violence order in force, (made by consent and without admissions), which imposes certain prohibitions upon Mr Badeni and for the protection of Mr F.
2003
V was born.
2005
W was born.
2009
X was born.
2011
Y was born.
2013
Z was born.
2015
Y is diagnosed with Type 1 diabetes. The parents met jointly for initial training with respect to Y’s treatment, including both parents being involved in injecting Y with insulin and conducting relevant monitoring and testing to ascertain her blood glucose levels.
9 June 2015
Both parents attend dietician training with respect of Y’s diabetes.
5 September 2015
The parties separate under the one roof.
21 December 2015
Mother leaves the former matrimonial home, as it then was, and relocates with the then-seven children of the relationship to the home of the maternal grandparents.
2016
Father and his then-girlfriend/partner experience a stillbirth of a child of their relationship. The mother alleges that she was not told by the father of the relationship or of the pregnancy until a text message was sent following the child’s unfortunate stillbirth advising of that reality and seeking consent for the children to attend the funeral of that child.
22 February 2017
First tranche of proceedings commenced by Mr Badeni. A consent to abridgement of time was sought and granted, such that the proceedings came before the Court within a week of filing.
28 February 2017
Interim hearing before Federal Circuit Court Canberra.
17 August 2017
Final orders made by consent (as referred to above).
16 November 2017
Mr Badeni emails the children’s school/s raising various complaints and threatening both litigation (with respect to a “human rights claim”) and engagement in a campaign of media publicity regarding the father’s complaints in relation to the school (and also threatening to seek costs in the event of litigation).
17 November 2017
An email is forwarded by the Catholic Education Office to Mr Badeni (and copied to Ms Dangerfield), indicating:
The position taken by the CEO and schools is that both parents are entitled to information from schools and to access school reports, school newsletters, photograph order forms, invitations to functions and parent teacher interviews … should a request be made by the non-residential parent for this information, then it will be provided directly by the school.
This is of some significance as the parties had been in heated dispute with each other as to the meaning and interpretation of certain portions of the final orders made August 2017 and specifically the extent to which Mr Badeni was entitled to be involved in the children’s education, both in receiving information or attending events at the children’s schools.
6 December 2017
An email is forwarded by Mr Badeni to Y’s doctor, or one of Y’s doctors, a Dr K, indicating:
I would like to move to the freestyle LibreScanner now, to drop the need for lancets and to avoid waking her at night in the process of gaining additional readings if low. It is now indicated for using in children 4–17 under supervision of a caregiver…
29 March 2018
Father commences relationship with his current partner, Ms D.
11 April 2018
Y is taken to B Hospital having experienced a hypoglycaemic event or “fit” in the mother’s care. Y is presented with vomiting and transported by ambulance. Ms Dangerfield suggests that this incident occurred as a consequence of the child having gastroenteritis. The parents agree that advice was sent by Ms Dangerfield to Mr Badeni at the time of her transportation to hospital.
12 April 2018
A discussion is suggested to occur between Ms Dangerfield and various of the children, during which the child W is suggested to have advised Ms Dangerfield that Y had experienced two earlier and similar incidents of low blood sugar levels and hypoglycaemic fitting whilst in her father’s care.
9 May 2018
Mr F’s school contacts Ms Dangerfield, having received an email from Mr Badeni (to which various others were copied in). The email is annexure P to Ms Dangerfield’s affidavit.
2018
Child L born (being a child of Mr Badeni and his then-partner). L continues to live with her mother and would appear to have limited time (by reference to Mr Badeni’s evidence) and practice of relationship with Mr Badeni and thus, with her siblings.
14 June 2018
Mr Badeni meets with Dr J, Y’s treating specialist. Mr Badeni suggests that he was left, as a consequence of the meeting, with the “impression” that Dr J was supportive of Y being fitted with a continuous glucose monitoring device.
18 June 2018
Mr Badeni forwards a lengthy email to “Ms M” at one of the children’s schools, expressing various matters to Ms M. During cross-examination, Mr Badeni acknowledged that the email or certain of its contents were inappropriate whilst also expressing some disquiet that Ms M, as a member of “the clergy”, had betrayed his confidence in disclosing those matters to Ms Dangerfield.
19 June 2018
Father attends a workshop at B Hospital relating to continuous glucose monitors and insulin pumps.
27 June 2018
Mr Badeni attends a diabetes education session.
6 July 2018
Mr Badeni again emails the children’s schools and/or Catholic Education Office, raising an intent to bring a human rights claim, attract media publicity and seek costs.
15 July 2018
Y advises her mother, Ms Dangerfield, that her father, Mr Badeni, has told her that she will be getting a continuous glucose monitoring device that will be installed by B Hospital and that her mother will not be told.
31 July 2018
Ms Dangerfield receives a phone call from educators at the B Hospital, in which it is suggested that concerns are expressed to Ms Dangerfield as to Y’s care whilst with Mr Badeni and expressing reservations or opposition to Y travelling with Mr Badeni to Country N. The travel did not ultimately occur.
19 September 2018
An email is forwarded by Ms Dangerfield to Mr Badeni confirming that she does not agree to Y being fitted with a continuous glucose monitoring device.
20 September 2018
Ms Dangerfield receives a telephone call from Children and Young Persons Services, suggested to express concerns in relation to Mr F whilst in Mr Badeni’s care.
24 September 2018
Ms Dangerfield reports that Y advised her that Mr Badeni had told her (Y) that a continuous glucose monitoring device would be fitted to her arm.
25 September 2018
Ms Dangerfield is advised by B Hospital that Y’s address for the purposes of the hospital has been changed to the address of Mr Badeni. There is controversy between the parties as to how this occurred, but no dispute that it did, in fact, occur and was quickly rectified.
4 October 2018
Ms Dangerfield attends upon the social worker at B Hospital and it is recorded within hospital notes that:
Ms Dangerfield [Ms Dangerfield] clearly expressed to Dr J and the social worker that assistive technology will result in a less hands-on approach by Mr Badeni [Mr Badeni], which has the potential to place Y at greater risk
5 October 2018
Y experiences a hypoglycaemic episode in Mr Badeni’s care whilst they are holidaying at Town O. Whilst there was some controversy as to whether Ms Dangerfield was advised of this or advised promptly it is clear, at the close of evidence, that advice was sent by Mr Badeni.
22 October 2018
The initiating application commencing this tranche of proceedings is filed by Mr Badeni.
23 October 2018
Mr Badeni completes an online diabetes training program with the International Diabetes Foundation.
23 October 2018
Ms Dangerfield is advised that Mr Badeni has made no contact with B Hospital as to further diabetes education and training and a report is made by the hospital to Children and Young Persons Services ACT, raising concerns as to the absence of education and/or Y’s care whilst with Mr Badeni. It is to be noted that as Mr Badeni had not contacted the hospital at that point in time, any concerns expressed by the hospital are presumably based upon matters reported to the hospital by a person or persons other than Mr Badeni.
27 October 2018
An incident occurs at the father’s home during an argument between Mr Badeni and Mr F. During this incident (in which Mr Badeni concedes that he acted inappropriately) a laptop computer owned by Mr Badeni, or a company of which he is the controller, but used by Mr F, is smashed by Mr Badeni. This event leads to a complaint being made to police by Mr F and an apprehended domestic violence order or intervention order being sought by police on behalf of Mr F, together with a charge being preferred, with respect to damage to the computer. A hearing ultimately occurs, at which an apprehended domestic violence order is made by consent and without admissions, but, as a consequence of the criminal charge proceeding, Mr F is extensively cross-examined.
2 November 2018
Ms Dangerfield is again contacted by Children and Young Persons Services regarding concerns that have been expressed to them with respect to Mr Badeni’s care of Y
20 November 2018
Mr Badeni and his partner Ms D attend diabetes education at B Hospital.
23 November 2018
Ms Dangerfield files her response in these proceedings.
26 November 2018
A number of orders are made by consent as between the parties including leave granted to reopen the proceedings and orders made for Mr Badeni to contact Dr J with specific questions in relation to Y’s diabetes management and treatment and the advisability or otherwise of continuous glucose monitor technology being used by Y.
28 November 2018
A further email is forwarded by the Catholic Education Office advising “it is not the role of the schools or Catholic Education to make a determination about the correct interpretation of family law orders when ambiguity exists”.
1 December 2018
V commences to live predominately with her father, Mr Badeni.
11 December 2018
Mr Badeni and his partner Ms D attend diabetes education.
22 January 2019
An email is sent by Mr Badeni to the school or schools of the children raising certain adverse views with respect to the schools and/or the school that the children receive.
January 2019
Father holidays with the children to Town P, during which time it is suggested the youngest child, Z, jumps into a pool without a safety vest on, causing some distress to the child and further impacting the level of trust between the parents.
2019
Father commences to live with his partner Ms D and her two children, Q (presently aged 15) and R (presently aged 13).
11 April 2019
A report is provided by Ms S, B Hospital, with respect to diabetes treatment.
24 April 2019
Dr J provides a detailed letter in response to the father’s letter regarding Y’s diabetes (see above orders made by the Court 26 November 2018).
5 May 2019
Further interim orders made by the Court.
10 May 2019
Father files amended initiating application.
2019
The child Ms T is born (a child of Mr Badeni and his partner Ms D).
15 May 2019
Dr J provides the finalised letter regarding Y’s diabetes treatment and related matters.
21 May 2019
Mr Badeni and his partner Ms D attend an education session at B Hospital.
3 June 2019
Father attends family counselling session, as ordered by the Court.
24 June 2019
Mother attends family counselling session, as ordered by the Court. A determination would appear to be made by the family counsellor that no further engagement is necessary, useful or desirable.
14 July 2019
Ms Dangerfield is advised by W of a hypoglycaemic episode involving Y whilst the children are being driven by the father on the U freeway in Sydney.
16 July 2019
Father advises mother of the event and further details.
21 July 2019
Child support decision issued fixing Mr Badeni’s income for child support purposes at $258,000 per annum and fixing that income for child support purposes for three years. An appeal to the Administrative Appeals Tribunal has since been filed by Mr Badeni, although since the issue of the assessment, no child support payments have been made (whether at the newly fixed rate or the previous rate).
31 July 2019
Mr Badeni and his partner Ms D attend an education session at B Hospital.
August 2019
Mr Badeni enrols in “Everyman Program” to address anger and parenting issues. The program involves weekly attendance with a counsellor.
19 September 2019
Mr Badeni and his partner Ms D attend an education session at B Hospital.
24 October 2019
Further correspondence is provided by Dr J regarding Mr Badeni’s engagement with learning and education programs at B Hospital.
15 November 2019
Ms Dangerfield is contacted by Children and Young Persons Services ACT with respect to an investigation commenced by them in relation to Y’s care whilst with Mr Badeni.
17 November 2019
W suggests to her mother that Y had become unwell whilst in the swimming pool and whilst Mr Badeni was absent. Mr Badeni suggests that he was present, albeit in the home rather than immediately adjacent to the pool.
22 November 2019
Both parents attend V’s school after V has absented herself from the school and been involved in a physical altercation, sustaining injuries.
23 November 2019
Ms Dangerfield suggests that she is contacted by W whilst she is in her father’s care and that W is distressed, not happy being present with her father and suggesting that her father has told her to leave and that he would be happier if she did.
December 2019
The eldest child of the parties, Ms E, graduates from University with both of her parents in attendance. December 2019, Mr F graduates from high school.
2 December 2019
Ms Dangerfield receives text messages from the father at 8.49 pm, advising Ms Dangerfield that V was to be in her care and a subsequent chain of text messages occurs before Ms Dangerfield spends some time searching for V, finding her and returning her to the father’s care.
10 December 2019
Children and Young Persons Services ACT contact the father and undertake a home visit.
16 December 2019
Mr Badeni is advised by Children and Young Persons Services ACT that they are closing their case as the complaints raised are unsubstantiated and advise Mr Badeni that they will be “recommending” that his partner Ms D be permitted to inject Y with insulin.
There are a number of aspects of the evidence which are the subject of some real controversy and which require some brief address. Those aspects of the evidence warrant some attention. In that regard, I propose to discuss each of the three documents identified above and the matters that arise from them.
Catholic Education Office correspondence
Order 18 of the orders made on 17 August 2017 provides that “the mother shall”:
18.1 Provide copies of the children’s school reports to the father within 48 hours of receipt of such by the mother.
18.2: Forward to the father relevant notices and communications from the children’s school.
18.3: Provide to the father the children’s homework to assist in the completion of the required schoolwork with the children.
18.4: Communicate with the father about mid-semester parent teacher appointments, such that the father may nominate his preferred appointment time to occur separate to that of the mother.
It would appear that immediately following the making of these orders that a copy of the orders was provided to the various schools of the children (all of which were administered by the Catholic Education Office). The parties also immediately fell into dispute as to the meaning and interpretation of that particular order and its impact upon the ability of Mr Badeni, to attend at and participate in school events and/or receive information. Suffice to observe that Mr Badeni was of the view that, as a parent with equal shared parental responsibility, he was entitled to attend, on an equal basis to Ms Dangerfield, at any event and to receive all and any information and notices.
Ms Dangerfield was of a contrary view, believing that the above order prescribed the totality of involvement that Mr Badeni was entitled to have with the school, comprising the provision of material to him by Ms Dangerfield, (rather than by the school), and Mr Badeni’s participation in one parent teacher interview per year.
What followed, as a consequence of that dispute, was significant correspondence between these parties and each of them and the school. Whilst I have referred to correspondence by each of the parties, it is trite to observe that the majority of correspondence was forwarded by Mr Badeni, (as would be apparent from the above chronology). Certain of the letters forwarded by Mr Badeni are contained within the evidence either as annexures to the affidavits of one or both of the parties or in the material that is tendered.
The material that Ms Dangerfield particularly draws the Court’s attention to is set out at annexures L, O, Q and R of Ms Dangerfield’s affidavit (although not confined to that material). I do not propose to recite the totality of that correspondence. There is little purpose in doing so other than to draw specific attention to the inappropriateness of much of that correspondence, both as to it having occurred at all or the content of certain of those emails. The emails are, at times, threatening towards the school and/or disclosing matters as between Ms Dangerfield and Mr Badeni (present or past) which have no place in communication to the schools attended by these children.
The correspondence may well have arisen from Mr Badeni’s frustration at that which he perceived as being his “exclusion” from the school community (let alone his exclusion from the choice of the schools that the children were attending). But, ultimately, it must be observed that orders were made by consent, in the first tranche of litigation, that these were the schools that the children would attend. Mr Badeni’s frustrations may speak to the explicability of that communication but it cannot aid in excusing either the inappropriateness of the communication or Mr Badeni’s lack of insight in understanding the inappropriateness of that communication.
I do not raise the above matters for the purpose of castigating Mr Badeni. However, whilst during his cross-examination, Mr Badeni, conceded that things might have been done differently or better, he was still somewhat “justifying” in his description of frustration as being the motivator or generator of that correspondence and thus making the correspondence and its content excused or excusable. It is not.
It was specifically put to Ms Dangerfield, by Mr Badeni’s counsel, that communication had improved since these proceedings have been on foot and particularly since there has been some degree of resolution as to the involvement of both parents in the school, (that came about as a consequence of interim consent orders made earlier in these proceedings). The material tendered as exhibit R1 speaks to that issue.
There has certainly been some observable improvement in communication but aspects of it remain inappropriate, such as:
a)An email by Mr Badeni 1 July 2019, indicating “I think I’m going to cry with X’s and Y’s grades. If only I could do more for them during the week. My effort must increase tenfold on the weekends that I have to help them. It distresses me greatly with those levels that they were taken out of school for three days the week before last and a day last week to go to the movies”. The irresistible inference drawn from the above comment, (Mr Badeni is perhaps explicable in their disquiet as to the children’s poor grades and the emotive nature of his reaction, but inappropriate to share with the school in that fashion), is a criticism of Ms Dangerfield.
b)An email, 23 August 2019, in which Mr Badeni raises various matters with Ms Dangerfield, but by forwarding the email to the school and copying Ms Dangerfield into it. Ms Dangerfield naturally responds “Per the orders you had to copy me into communications, but it is not an invitation to create a process where the school are involved in our parenting matters/decisions. I do not wish for our parental discussions to be handled in this way and ask again for the school not to be cc’d into these types of matters that are between us as parents”.
c)An email, 29 August 2019, indicating “It was an absolute delight to come to the Father’s Day breakfast this morning. It was disappointing that my children were not present, however, no surprise given Ms Dangerfield’s lack of inclusion of the children in any event to date that I might be in attendance (sic)”. Again, the direct criticism of Ms Dangerfield is simply unnecessary.
It is in the context and background of that dispute that the school has, thus, become involved, forwarding the lengthy letter, August 2018 referred to above. At page 56 of Mr Badeni’s affidavit (page 6 of the Catholic Education Office’s letter), the following leaps from the page:
a) I note that there appears to be a significant amount of acrimony between you and Ms Dangerfield and this has been reported by all three principals of the schools your children attend. It is also self-evident in the correspondence that you have sent the schools over the last 18 months. While we encourage parental involvement, the psychological safety and wellbeing of our students and staff is of paramount importance to us…
b) It became apparent during the course of our conversations with the principals that they held some concerns about the manner in which you have communicated with teachers at the schools and the principals themselves in the past.
Examples are then given, including:
i) The sending of an email critiquing teachers…and distributing this email to a significant number of teachers. Objectively, the tone of this email was condescending and a number of teachers were offended.
ii) Your tone and manner at parent teacher interviews has made some teachers uncomfortable…
iii) The inclusion of private family photos in your emails, details of your relationship with Ms Dangerfield and the reasons for the breakdown in your marriage…
iv) A significant number of emails relating to family law issues, concerns about your children’s participation in sports during Ms Dangerfield’s time with the children and blind copying teachers into correspondence with Ms Dangerfield …has put recipients in difficult situations and made them uncomfortable.
c) Whilst I accept that you have five children currently attending CE (Catholic Education) schools, the number of emails that you are sending far exceeds the number of emails that other parents in similar circumstances are sending…much of the correspondence relates to issues that could be resolved without the need to involve the school…or without the inclusion of information that is not directly relevant to issues that you are raising…
The correspondence concludes with the self-evident statement:
However, schools are not appropriate forums to ventilate issues that are the subject of family law disputes or attempt to garner support for your position and we request that you do not include personal information, matters relating to your family law dispute, or your relationship with Ms Dangerfield, when corresponding with the school.
To the extent that Ms Dangerfield thus raises complaint regarding Mr Badeni’s methods and styles of communication with her and with others (especially, but not limited to, the schools attended by the children), there would appear to be some degree of objective third party corroboration (if such corroboration were necessary), having regard to the material that is annexed and tendered.
All of the above material clearly demonstrates, to my mind, that the communication between these parents, is anything but good and certainly not effective.
B Hospital reports regarding Mr Badeni’s participation in education
This comprises a report, 24 October 2019, (annexure D to Ms Dangerfield’s affidavit). From this brief document, it is clear that Mr Badeni has attended, at times with his partner Ms D, a number of information sessions to gain further insight and understanding into Y’s diabetic treatment. Ms Dangerfield’s case is that no such insight or understanding has been achieved.
It should be observed, as recorded in the above chronology, that Y’s diagnosis with diabetes Type 1 occurred some few months prior to the separation of the parties and a full two years before final orders were entered into between these parties, August 2017.
The report, annexure D, refers to attendances by Mr Badeni 21 May 2019, 31 July 2019, 19 September 2019. The attendances suggest some continuation of the concerns raised by the Catholic Education Office, as regards Mr Badeni’s engagement with hospital staff.
During his cross-examination, Mr Badeni was clear that he held particular views as to the social worker engaged at the hospital, a Ms S. Mr Badeni suggested that Ms S was somewhat partisan with Ms Dangerfield and, correspondingly, somewhat biased towards him. Whether that is so or not need not be determined by this Court. However, the matters that are recorded within the report, annexure D to Ms Dangerfield’s affidavit, are critical of Mr Badeni, whether infused with such partisan attitudes or otherwise. Whilst those views may or may not exist (and, again, I need not determine whether it is so), the criticisms raised in the report remain valid.
At the attendance 31 July 2019, it was noted that Mr Badeni
…utilised a proportion of this session to voice his views with regards to the continuous glucose monitoring system (CGMS) and his belief that the hospital should share data with him during periods that is daughter is in the care of her mother. Mr Badeni was advised that the education sessions are time limited and need to be focused on education requirements. The discussion of irrelevant topics and opinions by Mr Badeni consistently required redirection by clinicians detracted from the purpose of the appointment.
It is germane to observe that Mr Badeni is somewhat focused upon the desirability of, if not the necessity for, Y to be fitted with a continuous glucose monitoring device. At earlier Court events, these proceedings have been suggested by Mr Badeni to fall within the Court’s general welfare jurisdiction pursuant to section 67ZC of the Family Law Act 1975, suggested to involve “special medical procedures”, by reference to that issue. Indeed, the minute of orders that are provided at trial on behalf of Mr Badeni preface the allocation of sole parental responsibility to Mr Badeni, least as regards Y’s diabetic treatment, as founded by section 67ZC and being an order relating to the welfare of children.
The Court’s jurisdiction with respect to special medical procedures,[1] consistent with the High Court’s decision in Secretary of the Department of Health and Community Services v JWB and SMB[2] and the Full Court’s decision in Re Kelvin[3] is not relevant and not invoked as the issue in dispute, whether Y is to be fitted with a CGM device, is neither therapeutic or irreversible.
[1] Noting that this jurisdiction would fall to the Family Court rather than the Federal Circuit Court.
[2] [1992] HCA 15
[3] [2017] FamCAFC 258
The issue of whether Y is provided with and uses a continuous glucose monitoring will be addressed specifically by reference to the determination of the issues as presented by these parties. However, at this point, it is sufficient to observe that the device itself is not therapeutic and does not represent “treatment”. It is a monitoring device. It takes measurements. It is invasive of Y’s person and thus requires parental consent. But it does not “treat” Y’s diabetes. It might be a tool in a treatment regime but it is, to Y’s treatment, no more than a thermometer would be to treatment of a virus.
As is clear and apparent from the material before the Court (particularly Dr J’s report, which I will turn to next), the continuous glucose monitoring system has two significant differences (which may well appropriately be described as advantages) over manual, pin-prick testing. These are that the testing is continuous and more frequent.[4] Further, the device can provide alerts which might highlight trends towards low glucose levels and warrant or trigger intervention. However, that is all the device will do. It does not of itself provide any therapeutic intervention or assistance. Treatment is dependent upon Y’s carers, at any given point in time, injecting her with insulin.
[4] Testing occurs up to 228 times per day as opposed to 8-12 times per day
The above observations are relevant at this point as they assists in understanding the clear and specific focus and drive of Mr Badeni in agitating for sole parental responsibility in relation to Y’s diabetes treatment. Mr Badeni is firmly and genuinely of the view that it is “necessary” for Y to have a continuous glucose monitoring device fitted and that her health will be significantly impacted absent the fitting of such a device. So much is clear from the Notice of Risk that was filed by Mr Badeni at the time the proceedings were commenced.
Whilst counsel for Mr Badeni has conceded that the Notice of Risk was perhaps somewhat exaggerated or hyperbolised in the risks alleged and apprehended,[5] the Notice of Risk is educative. Within the Notice of Risk,
[5] The risks alleged do not, for example, fall within the statutory definition of abuse contained in section 4 of the Family Law Act
Mr Badeni describes, for example, “Fluctuations of…blood glucose levels can be life threatening”. It is important to observe that this is a significant element of Ms Dangerfield’s case in seeking to limit Y’s practice of relationship with her father to day-only periods, as Ms Dangerfield is concerned that Mr Badeni does not adequately test and monitor Y’s levels. As is pointed to by counsel for Ms Dangerfield, the interest and investigation by the ACT Department of Child and Youth Protection Services ACT has been on the basis of the life-threatening nature of inadequate monitoring and treatment of Y’s diabetes.
Mr Badeni refers to there having been “three known occasions”, as at October 2018, of Y having experienced
A serious hypoglycaemic event due to inadequate monitoring of her blood glucose levels, which were beyond the reasonable control of the current monitoring method and that on two known occasions, such hypoglycaemic events have required hospitalisation.
This may be some tacit acceptance by Mr Badeni of that led in Ms Dangerfield’s case - that in addition to the one admission which occurred whilst Y was in Ms Dangerfield’s care, that the remaining two of three events referred to by Mr Badeni have been whilst Y was in his care. There is real controversy between the parties as to whether a continuous glucose monitoring device would or would not have avoided those incidents. It is Ms Dangerfield’s case, that Mr Badeni sees the CGM (as it will hereinafter be referred to) as being a substitute for his vigilance, whereas Mr Badeni asserts that the CGM is a technology that provides for better vigilance to augment and supplement the present vigilance of the parents.
Mr Badeni goes so far in his Notice of Risk as to allege that Ms Dangerfield, by her refusal to agree to Y being fitted with a CGM device, is endangering the child and is exposing her to “serious neglect”. It is sufficient to observe that this is not a view expressed by Y’s treating medical team, quite the contrary.
This assertion by Mr Badeni has been the subject of emails he has sent to Ms Dangerfield making the same statement. Mr Badeni concedes that he might have better expressed himself on the matter as to not to have engaged in such hyperbole or to cause such distress to Ms Dangerfield.
Mr Badeni concedes that he has stated to Ms Dangerfield that it would be entirely her fault and responsibility if anything serious happened to Y as a consequence of a hypoglycaemic event. Mr Badeni has also sent an email to Y’s treating medical team asserting that, should Y experience blindness, that this also would be as a direct consequence of the failure and refusal of Ms Dangerfield to permit the fitting of a CGM (and also possibly the hospital’s negligence in not driving the issue more firmly).
At the education session, 19 September 2019, it is recorded that
Clinicians raised concerns about the cause significant variability of blood glucose levels when Y is with Mr Badeni and Ms D. Their professional opinion was that this may be attributable to food being offered and consumed as well as the, at times intense, exercise that Y regularly undertakes when in Mr Badeni’s care. Concerns have been raised as to Mr Badeni’s carbohydrate counting skills, his knowledge of the impact of exercise on insulin requirements and his ability to take these factors into account when adjusting insulin administered.
It is observed that the data provided by Mr Badeni indicates, more recently, a decrease in frequency of hypoglycaemic episodes. The view is expressed within the report, that Mr Badeni and his partner Ms D need to continue the education sessions so that they can progress to showing evidence of “…assimilating this knowledge and applying when caring for Y…this should assist them in reducing the at times significant blood glucose variability”.
One issue raised by Mr Badeni is that his ability to engage in education and treatment of Y’s diabetes has been impacted by his inability to attend quarterly review appointments in person. At present and for some little time, Mr Badeni has attended by telephone whilst Y and Ms Dangerfield attend in person. Whether this is so or not need not be determined by the Court. However, Mr Badeni is able to attend by telephone and in person at other times such that his assertion seems, at the least, improbable.
The entry relating to an appointment 19 September 2019 also, importantly, records that Y is reluctant to be fitted with and anxious about being fitted with a CGM device and, as a consequence, is receiving play therapy and support to move towards that end. Mr Badeni asserts that any anxiety demonstrated by Y is merely a reflection of her mother’s anxiety. The evidence does not support that assertion. Y’s anxiety would appear real and her own and, I am satisfied, more likely to have arisen from her awareness of the conflict and dispute between her parents on the issue than anything else. Ms Dangerfield’s evidence, which I accept, impresses me that she is responsive to Y’s anxieties (rather than the reverse) and that she is open minded to the use of the CGM at a future time.
Dr J’s response to Mr Badeni
This lengthy response, dated 8 May 2019, is found at annexure B21 of Mr Badeni’s affidavit. The contents of that report or response are vastly significant to the determination of many of the issues in dispute between these parties.
The report is advanced by Mr Badeni as supporting the necessity of Y being fitted with a CGM device and the hospital’s support of that position. I am not satisfied that the report can be taken to provide support for either proposition.[6]
[6] Although ultimately, the issue will be determined by reference to the issues of parental responsibility presented by the parents
Under the heading “What is continuous glucose monitoring”, a significant body of information is provided. What is made clear is that CGM
…has the ability to determine tissue glucose levels longitudinally and currently available technology has the capacity to predict impending low glucose episodes (hypoglycaemia), and provided carers are able to provide glucose, can in turn prevent most if not all severe hypoglycaemic levels. Tissue glucose do not correlate perfectly with blood glucose and current technology is 8-12% less accurate (emphasis added) then blood glucose levels which correlate more closely with glucose levels in the brain.
It also provides:
…although the technology is very effective as a management tool to assist in managing diabetes, it is not a surrogate for competent adult supervision and prior preparation.
Whilst there is clear indication that CGM technology is adopted by the majority of the ACT community (approximately 75% - see page 112 of Mr Badeni’s affidavit), a number of provisos for the use of the technology by Y are provided. These include:
a)The person with diabetes must be willing to wear it (penultimate paragraph, page 107).
b)The child’s carer must be on hand quickly to take the necessary steps to manage anticipated episodes of high (hyperglycaemia) or low glucose (hypoglycaemia) when the device predicts this (penultimate paragraph, page 107).
c)The competent carer must have acquired and be presently applying current knowledge necessary to manage diabetes (final paragraph, page 107).
d)The carer must have an implicit willingness to seek out information from reputable sources, including attendance at clinic visits and other opportunities for education outside of the clinic (first paragraph, page 108).
e)The carer must have engaged in preparation and maintenance of appropriate food and development and maintenance of skills in adjusting insulin to anticipate and, where possible, avoid large swings in glucose levels (first paragraph, page 108).
f)The carer must demonstrate preparation for occasions to mitigate risk to the child (second paragraph, page 108).
g)The carer must respect the autonomy of the child and enable the child to have age and developmentally appropriate expectations (second paragraph, page 108).
h)The carer must make adjustments to the child’s insulin doses for the events that have been predicted and know how to do so (third paragraph, page 108).
i)The carer must take active measures or show understanding as to the effect of insulin needs (exercise activity, illness, etcetera) (third paragraph, page 108).
j)The carer must supervise the child at all times (third paragraph, page 108).
k)The carer must take appropriate steps to manage the anticipated and unanticipated glucose fluctuations of the child (third paragraph, page 108).
The above matters specifically impact upon the evidence in this case and are spoken to by various aspects of it. As would be apparent from the evidence discussed above, some concerns are raised, not only by Ms Dangerfield, but also by hospital staff (whether impacted, in any fashion, by Ms Dangerfield’s reports to those staff or otherwise) as to Mr Badeni’s level of responsiveness to Y’s diabetes. This is spoken to also by aspects of Mr Badeni’s evidence.
One of the real issues in the case is the extent to which Mr Badeni engages the children, including Y, in physical activity. The children are highly involved in sports whilst in the care of Mr Badeni and less so whilst in the care of Ms Dangerfield. That is not to suggest criticism of either parent, simply to acknowledge their evidence. Mr Badeni seeks to have all of the children, including Y, engaged in sports and other activities. It is clear from the evidence before the Court that those activities impact upon Y’s glucose levels and thus, her need for insulin.
There is also a curious aspect of the evidence, if it might be described as evidence, which speaks to these issues. At the conclusion of submissions by counsel, Mr Badeni sought to address the Court directly. In doing so, Mr Badeni pleaded with the Court, somewhat emotively, to help and assistance to him with respect to the issues that he perceives as fundamentally important to Y’s future care. This desire for help is, to some extent, connected with Mr Badeni’s own issues.
Mr Badeni is the father[7] of some 11 children. Ms Dangerfield was somewhat distressed during these comments, possibly believing that such a direct and emotive pleas would sway the Court’s views.[8] The Court, however, does not make decisions by reference to misericordia, but by reference to the facts and circumstances of the case as addressed by the evidence.
[7] Using that term, as Mr Badeni has, to include both biological and step children.
[8] Ms Dangerfield clearly felt that this was Mr Badeni’s intent or belief as she became distress to the point of instructing her counsel to raise the issue.
Mr Badeni concluded his address to the Court by indicating that he felt the need to receive some assistance and help from the Court to assist him and his partner sleep, (bearing in mind that they have their eight month old child present in their house at all times which child, no doubt, contributing to or interrupting their sleep.
I am loathe to take these comments, unscripted and personally expressed as they are, as any detriment to Mr Badeni’s case. However, whilst Ms Dangerfield is concerned that such comments would be adverse to her position they are, perhaps, to the contrary. They give some insight that the concerns that Ms Dangerfield raises (that Mr Badeni is somewhat less vigilant than she is) may be real, as least in some small part.
In returning to the good doctor’s report, aspects of the report might be suggested to contraindicate an immediate move to a CGM device. For example, at page 109 it is suggested that “good non-judgmental communication when the child moves between different households which is focused on considering Y’s needs and providing her with opportunity where her diabetes has the least impact on her daily life and enables her to contribute only in a way that is developmentally age appropriate” are also important. Such communication is not demonstrated on the evidence.
The report records that as at May 2019 Y had experienced three severe hypoglycaemia attacks. One of these had occurred in the care of Ms Dangerfield and two in the care of Mr Badeni. As regards the two events which occurred while Y was in her father’s care, it is observed, (albeit the report acknowledges that third-hand information has been relied upon), that Mr Badeni may, at least by implication, be criticised for a lack of understanding of his role as carer or for his preparation for Y’s visits. The good doctor is clear in adding the caveat that he has been able to verify those details. This has some importance when turning to the investigation recently undertaken by the ACT Child and Youth Protection Services.
As regards the suggested “strong support” for Y’s use of a CGM device, Dr J’s report acknowledges that CGM is “very effective at alerting to current or impending hypoglycaemia, but CGM alone will not prevent a potentially life-threatening severe hypoglycaemia from occurring or recurring unless there is someone who can act on information provided to prevent this occurring”. Again, this highlights that the CGM device is of great assistance in monitoring but is not, itself, therapeutic. The report emphasises that it is the response of the carer and their actions and their vigilance that is important. This is summarised on the following page (110) as:
Technology is not a surrogate for the presence of a competent, caring adult, but is a useful adjunct to help such a carer to be a more effective carer for their child with diabetes.
The following comment is then offered:
Given that Y has two legal guardians who are no longer together, both need to agree and be supportive of any decision to change diabetes management, including the use of technology. Y herself also needs to be able to participate in an age and developmentally appropriate manner in this decision, guided by her parents but free from undue adult pressure. If these steps are not undertaken and CGM is introduced without explicit agreement of both guardians that is free from implicit or actual duress or coercion, or without Y being able to give her assent in an age and developmentally appropriate manner, then in my opinion, the introduction of such technology that involves the invasive assertion of the sensor through her skin might be considered to be an assault.
The language of “assault” was adopted by Ms Dangerfield in correspondence forwarded by her legal representatives to Mr Badeni’s then legal representatives. That was, perhaps, unhelpful. The reference by Dr J to “assault” is entirely accurate in the context of his report. For a medical practitioner to engage in such an invasive process, fitting a monitoring device (not a therapeutic device) in the absence of urgency and without the consent of both parents, would fall within that descriptor.
Dr J acknowledges the likely benefits to the child of a CGM device, but again repeats the caveats referred to above. At page 111 of Mr Badeni’s affidavit (page 5 of Dr J’s report) the following is stated:
It needs to be explicitly stated that where parents are separated the approach to managing diabetes will not always be the same in each household, especially where parents struggle to communicate freely with each other, or where one party perceives judgment from the other. Each parent needs to feel free to operate as an autonomous individual to appraise information and to make informed decisions…
Underneath the heading “Alerts at Risk” (the ability of the CGM device to provide alerts of prospective hypoglycaemic events) Dr J states that CGM technology is:
9–12% LESS accurate than finger prick glucose levels but the benefit is the frequency of data points and the ability to predict low glucose levels before they occur…CGM is also an educational tool that can be utilised to enable carers to modify their child’s diet or environment over time reduce risk.
A number of shortcomings are identified which need not be considered further at this time.
Overall, Dr J offers some real support for the potential benefits that a CGM device may provide to Y. However, the report makes clear that those benefits are potentially impacted, if not obviated, by the caveats that are referred to, most if not all of which exist in this case.
CYPS Investigation
Exhibit R3 comprises a report form from the ACT Child and Youth Protection Services (“CYPS”) as to the reasons for their investigation. It is to be remembered that Mr Badeni indicates that as far as he is concerned and has been advised, the investigation is concluded and closed without further action. The report,[9] (and remembering that reports have been made to the agency by B Hospital), includes:
Records kept by Y’s father indicate several concerns around management of hypoglycaemia episodes (low blood glucose levels). Last weekend, 17 November 2019, Y experienced a significant hypoglycaemic event post-lunch when swimming in family pool… Mr Badeni continues to provide evidence that he is unable to appropriately match the amount and type of insulin required at mealtime…
[9] Page 5 of 17
That portion of the report concludes with the statement:
Repeat severe episodes of hypoglycaemia will over time have an impact on Y’s cognitive ability/brain function.
There is also reference to an event, 15 November 2019, when Y had experienced an extended hypoglycaemic episode during the night and whilst with her father and following which Y’s blood glucose levels were not checked again. It is suggested that Mr Badeni’s response to this was that “…he and Ms D (partner) are very tired and couldn’t be expected to wake again to check Y through the night”. Mr Badeni was educated that, “It is a essential requirement in the management of hypoglycaemia to avoid the occurrence of further severe hypoglycaemic episodes resulting in unconsciousness or death.” Further concerns were raised with respect to reports in October 2018 and one report in 2016. The acrimonious relationship between the parties is recorded, as well as the existence of these proceedings (page 9 of 17).
Whilst not connected with Y, it is concerning that one of the matters reported to the Child Welfare Agency were concerns in relation to V. It would appear, as recorded within the document, that school staff at V’s school (page 6 of 17) had reported that they held concerns that V had been assaulted by her father rather than, as V had herself reported, by a stranger. The parties are at one that the assault upon V, which occurred in November 2019, was not in any way connected with Mr Badeni. In fact, the evidence would suggest that Mr Badeni was attending an appointment at the B Hospital relating to Y’s diabetes at the time of that event and, thus, not only did he have a plausible alibi but he could not have been involved in that event. To the extent that Mr Badeni suggests that there is a partisan attitude demonstrated by some school staff and some bias towards him by those staff, this might be seen to give some tacit support to the suggestion.
The report concludes (page 15 of 17) by noting that 10 reports have been made in relation to the family with concerns for:
…emotional abuse as a result of exposure to family violence and concerns for medical neglect for Y. There is a historical pattern of ongoing family violence between Mr F and his father in 2018 resulting in an FVO, and reported concerns around the father using coercion and manipulation tactics towards the mother”.
It is unclear from whom the information was obtained which relates to the suggested allegations. What is recorded is the following:
As highlighted by medical professionals in the multiple report of this report .., “these actions place Y at the direct risk of severe life-threatening and hypoglycaemia (risk of seizures which have occurred, coma which has occurred and potential risk of death.” The mother has stated that she is worried when the children go to their fathers home for three weekends every month, and has stated that whilst the father is receiving education as per FLC order, it doesn’t appear that he is putting this into practise.
Whilst there is no suggestion that Ms Dangerfield has herself made any report to the Child Welfare Agency, it is clear that Ms Dangerfield’s reports to others, presumably made to the acknowledged reporters, being staff of the B Hospital, have been related to the Department. The extent to which Ms Dangerfield’s concerns have flavoured, influenced or impacted upon concerns as expressed by the hospital are unclear.
Even without broaching the contested issue of whether the Department’s interest in the family is at an end, I am satisfied that the reports to the Department and what has fallen from their investigations, do not amount to or corroborate a level of concern with respect to Y’s future care by her father that would warrant interference in that relationship.
Determination
I propose to now address the various aspects of the relief sought by the parties. In doing so, I will refer to the above evidence and other aspects of the evidence as it has arisen in the proceedings. Having identified those issues, I will then turn to and address the legal principles which must be applied by reference to the Family Law Act 1975.
Issues for Determination & the Proposals of the Parties
I have set out below the competing applications of the parents as to the orders they seek and a summary of the orders that I propose to make and why. Following thereafter I have set out a more detailed assessment of the evidence and the legislative provisions that must be considered to arrive at a determination.
Parental Responsibility
Mr Badeni seeks an order that he be solely responsible for making decisions with respect to Y’s diabetes treatment. This is sought specifically so that Mr Badeni might be in a position to authorise Y being fitted with a CGM device. An alternate proposal is raised, being a somewhat complex set of preconditions for any treatment that is provided for Y and/or an immediate introduction of a trial of the CGM device.
Ms Dangerfield also seeks that the existing order for equal shared parental responsibility be varied. However, Ms Dangerfield seeks discharge of that order in its totality and, in its place, an order that she have sole parental responsibility for four of the five infant children. As already recorded, an order is sought for equal shared parental responsibility with respect to V.
Ultimately, I am satisfied that sole parental responsibility should be provided to one of the parents with respect to Y’s medical treatment. The ongoing conflict and dispute around that issue is sufficient to recommend that course. I am not satisfied, for reasons that will be discussed, that a broad order for sole parental responsibility, to address all major issue/decisions, should be made in favour of one parent.
School Participation
Mr Badeni seeks an order that would allow and permit him to receive all and any information from the children’s schools on an equal footing to Ms Dangerfield. Further, Mr Badeni seeks that he be able to participate in all and any events at the children’s school on the same basis as Ms Dangerfield.
Ms Dangerfield seeks very clear and specific orders that Mr Badeni receive specific reports and information, participate in one parent/teacher interview per semester (two per year) and participate in certain events only. A suite of restraints upon Mr Badeni are otherwise sought.
Mr Badeni proposes that his involvement should facilitate his “rights” as a parent and specifically as a father. I make clear that such language is unhelpful and unknown to the Family Law Act1975. Rights, to the extent that such language might be adopted, reside with and belong to children. Parents have corresponding duties and responsibilities. These can be gleaned and ascertained from the objects and principles in section 60B. The overwhelming and paramount consideration is child’s best interests and the benefit to the child of any arrangement.
Mr Badeni also advances his position on the basis that he has much to offer these children in a broad sense, but specifically in relation to their education. That is so.
Ms Dangerfield’s position is that the parties simply cannot communicate with each other and that communication, when it is permitted, either between the parties or with the children’s school, creates discomfort and discord, is generative of further conflict and is disadvantageous to the children.
I propose to make orders, for reasons that will be explained, that authorise the children’s schools to release directly to each parent all reports, newsletters and other information that the parents may seek or desire and without either parent having any involvement as the provider of that information, the filter of that information or otherwise.
I propose to make orders that will allow and permit both parents to be fully involved in all and any activities at the children’s schools. This will be subject to a number of caveats, including a requirement that each parent advise the other of their intention to attend any event that occur when the children are in the care of the other parent. Whilst this will essentially apply to Mr Badeni, although the order will be expressed as mutual. An order will also be made that each parent refrain from seeking to communicate with or approach the other parent if both are present.
(5) What measures are available whose deployment can mitigate the risks?
Again, ironically, the CGM device may be of some assistance in mitigating risk. One would hope these parties might, as it would seem the vast majority of the children in the ACT have done, move towards embracing that technology. It is, however, nothing more than a measuring and management tool.
What would best mitigate against those risks is vigilance and competence by both parents. I am satisfied that Mr Badeni is competent, although his vigilance could be increased. His vigilance has not been criticised until more recently and that may well be connected with the presence, within his household, of a very small and sleep-disturbing child. That will, however, pass and, in combination with:
a)The vigilance of both Mr Badeni and his partner, Ms D;
b)The engagement of the full family unit in vigilance and concern for Y; and,
c)Ongoing education, support and assistance from Y’s treating team;
Y’s needs are being and will be met in both households without unacceptable risk.
Summary
I am not satisfied that there is an unacceptable risk to Y if continuing overnight time with her father. On the basis that Ms Dangerfield does not agitate any other basis for change to the existing arrangement, I am not satisfied that change is warranted. Overall and absent an unacceptable risk, I am not satisfied that Ms Dangerfield’s plea for reduction of Y’s time with her father is supported. That does not, however, mean that there is not any basis to act protectively. It is on the basis of those needs that I propose to put in place the injunctive relief sought by Ms Dangerfield to avoid further conflict and aggravation with the children’s school and medical treatment teams, but also to require that Mr Badeni continue to attend educative and directive training and assistance through the hospital.
I appreciate that Mr Badeni will see this as being a lack of confidence in his parenting. It is not so from the Court’s perspective. It is merely that it will assist in building trust between these parents and can do no harm. As Mr Badeni has himself described, it is ongoing education when learning to live with Y’s disease. The injunctive orders, mutualised as they will be, will also aid in addressing the balance of objects in ensuring that Y receives adequate and proper parenting, and that her parents fulfil and meet their duties and responsibilities.
The balance of objects and principles need not be considered to any great extent, save and except to consider the principles in the context of telephone communication. Each of these children has a right to communicate on a regular basis with both of their parents.
The fact that an order presently exists that permits the children to telephone a parent whenever they may express a desire to do so (noting that the orders do not bind or direct the children but the parents), and acknowledging the evidence of these parties that telephone communication essentially does not occur, there would be benefit in providing for some limited and specific communication.
There is no great impost upon the privacy or time that either parent spends with the children as a result of the children being able to telephone and speak with an absent parent. The elder children have telephones of their own. One would think the younger children could prevail upon their elder siblings to let them use those telephones or upon their parents to use a telephone. It is not a matter of such inconvenience or impost as to obviate against it.
The Presumption of Equal Shared Parental Responsibility
I must then have regard to section 61DA, the presumption of equal shared parental responsibility. That consideration is made somewhat more complex by the reality that there is presently in force an order made by consent for equal shared parental responsibility with respect to all major issues decisions.
I am satisfied that the presumption would apply. While certainly there is reference in and inference arising from the evidence of Ms Dangerfield that she has experienced family violence, the Court could be in no position, on the evidence as it stands, to make a finding that there are reasonable grounds to believe that family violence has occurred. That is not to disbelieve Ms Dangerfield or dismiss the concerns that she raises. It is merely that the Court must have a reasonable basis to make such a finding. No such reasonable basis is available on the evidence.
I am satisfied, however, that it is impractical and contrary to Y’s best interests for both of her parents to continue to be in conflict regarding her medical treatment. Ironically, if Mr Badeni was not so fervently insistent upon the fitting of a CGM device, the fitting of the device may well have occurred already. It is not something, as observed, that Ms Dangerfield has closed her mind to. She understands and acknowledges its benefits. She simply suggests (consistent with Dr J’s cautions and caveats) that the time has not yet come when it is appropriate.
Y’s best interests determine whether the presumption is rebutted. Y’s best interests includes, to a large extent, the consideration of reasonable practicality as set out at section 60CC(3)(e) and incorporating therein section 65DAA(5). Mr Badeni and Ms Dangerfield have demonstrated, through their past and recent conduct, that they simply cannot make joint decisions about Y’s health treatment. They are possibly capable of making joint decisions with respect to other aspects of major issues decisions, as defined in subsection 4 of the Act.
These parents have, albeit with disputes, been able to address the children’s religious and cultural upbringing. It is largely not a matter of significance to them save as regards overseas travel. They are unlikely to come into conflict with respect to the children’s education save for the ability of each to participate in that education. They have not been and will not be in conflict with each other regarding the names used by the children, or the living arrangements for the children such as would impact upon the capacity of the other parent to spend time with the children.
The only fundamental “battlegrounds” (as it is described in the CYPS document) for these parents are participation in school events and receipt of school information and Y’s diabetes treatment.
To that end, I am satisfied that it is not impractical for the parents to both be involved as part of the school community. That is subject to one important caveat. Mr Badeni must change the manner in which he communicates with the schools (and through the schools with Ms Dangerfield). He should not engage with or include discussion within communications with the schools of matters relating to his relationship with Ms Dangerfield or, for that matter, discussion of Ms Dangerfield at all. It is simply not something the school needs to know.
Mr Badeni, during his cross-examination, appeared to demonstrate some degree of insight, perhaps gained from his engagement in the recent counselling program he has commenced, that change is required in this regard. I have confidence that the change will continue to develop and achieve benefit for these children. Mr Badeni simply needs to be more appropriate and constrained and less passive aggressive in his communications.
In relation to the medical issue, however, in light of the strident desire of Mr Badeni to immediately move to the fitting of a CGM device and the conflicts that this generates between these parties, equal shared parental responsibility, for that issue, cannot be expected to continue. It is beyond aspirational to expect that these parents will cooperate and communicate on the issue. It is positively damaging to their communication and their parenting of Y for equal shared parental responsibility for that issue to continue. The parents would appear to concede that it is so as each seeks that they be allocated sole parental responsibility, in some fashion, for medical decisions.
I will otherwise address the issue of practicality by reference to section 60CC to which I will turn shortly. Beyond the concern that parental responsibility with respect to Y’s medical treatment should be allocated to one parent, (Ms Dangerfield, as the parent with whom Y predominantly lives and being the parent who is primarily involved in that medical treatment and to a high standard that is not criticised), I am not satisfied that there is a basis upon which the balance of equal shared parental responsibility for all five children would be interfered with.
Ms Dangerfield seeks that equal shared parental responsibility continue with respect to V, notwithstanding, as is submitted by counsel for Ms Dangerfield, that Mr Badeni has, at times, demonstrated an inability to make good decisions. That is certainly reflected in matters relating to V, including:
a)The occasion when V was, as it were, missing, and Mr Badeni, as it were, washed his hands of the circumstance, indicating to Ms Dangerfield that it was “her problem”; and,
b)Mr Badeni’s somewhat extraordinary evidence that when he sought to change V’s school enrolment, after she had come into his care, that he presented with her each morning for a fortnight or so sitting outside the principal’s office with V each morning, in full school uniform, as a means of seeking to pressure the school to accept her enrolment. There would not appear to have been any significant insight, if any, into the impact of this upon V.
Those concerns aside, however, I am satisfied, as Ms Dangerfield seeks, that an order for equal shared parental responsibility should apply for V. Mr Badeni does not seek to cavil with that proposition. However, I am also satisfied that equal shared parental responsibility should apply for all of the children, save and except the issue of Y’s medical treatment. The practical difficulties created by imperfect communication are not such as to obviate against the continuation of the existing order.[14]
[14] In addition to the evidence led and the determination of the issue on its merits, I am conscious, consistent with SPS & PLS [2008] FamCAFC 16, that no significant change is demonstrated that would warrant interference in the existing final order.
In turning to section 60CC, I must commence with the primary considerations, being the benefit to these children, and each of them, of a meaningful relationship with both parents and the need to protect the children from physical or psychological harm through exposure to abuse, neglect or family violence. The consideration of risk is prioritised by section 60CC(2A) above all else and is already addressed above.
In this case, the real issue relates to Y’s medical treatment and thus the concern as to neglect which is suggested to arise. Consistent with the above discussion of unacceptable risk, I am not satisfied that there is such a need to protect Y which cannot be addressed through other caveats and injunctions, obviating against Y’s continued practice of relationship with her father in accordance with the existing order being interfered with. The considerations that would arise from authorities such as Rice & Asplund and SPS & PLS would also inform that decision and support it. However, the decision is made on its merits as a fresh exercise of discretion. Accordingly, the balance of section 60CC require consideration.
There is nothing raised on the evidence that suggests that the children, and particularly Y, do not presently have and do not benefit from a meaningful relationship with each parent. Accordingly, absent unacceptable risk, being the central tenet of Ms Dangerfield’s case, it would be mischievous of the Court to then interfere in that practice of relationship between Y and her father.
The consideration is broader, however. Interference in Y’s practice of relationship would likely impact the relationship between Mr Badeni and all of the children as well as Y’s relationship with each of her siblings (and especially V now living predominantly with Mr Badeni).[15] That interference would arise from the sibling group being split, W likely experience stress and distraction and the general interference within Mr Badeni’s settled practice of a family relationship with all children being interfered with.
Additional considerations -
[15] Per Burton & Churchin [2013] FamCAFC 180, it is only the relationship between the children and their parents that are considered as primary considerations, the remainder of relationships, including that between the siblings, considered as additional considerations.
Views
There is no evidence of Y’s views in relation to a change to her practice of a relationship arrangements with her father, nor the views of any of the other children as to the change that would flow to their relationship with Y if such a change were made.
It is to be remembered that Ms Dangerfield does not seek, in any way, to W, X and Z continuing to spend three out of four weekends and one half of school holiday periods with their father. If Y were not attending with her siblings then those relationships would be significantly impacted. Y would not be with them for significant periods of time. That might, in the case of W, accentuate her anxieties in relation to Y.
Absent evidence of the children’s views on any of the issues that are raised, it is difficult to give any further weight or consideration to the factor.
Nature of the Children’s Relationship with Each Parent and any Other Person or Relative.
There is little evidence, perhaps explicably so when the focus has been so fundamentally upon Y’s diabetes, management and treatment. It would seem common ground, however, that W, X, Y and Z enjoy an excellent relationship with each of their parents, as well as with their extended families, including maternal and paternal grandparents and, in the case of Mr Badeni’s household, his partner Ms D. There was certainly nothing led by Ms Dangerfield to suggest that the Y’s relationship (or those of the other children) with her father or others are poor nor any relief sought that would support such a position. Accordingly, I am satisfied that a continuation of the present time arrangements, absent a finding of unacceptable risk in relation to Y’s time and practice of relationship, is supported.
It would also be of assistance to Mr Badeni’s relationship with the children and each of them for Mr Badeni to be able to have involvement in their schooling. That would include through the receipt of information. The children would then have a father who is appraised of information about them and who can have conversations with his children about their school, their interests and be supportive of their education.
It is disadvantageous for these children to be present whilst their parents are engaged in active conflict. There is very little evidence of any occasion when this has occurred, save one occasion during a movie night when Mr Badeni was briefly absent and the children left the presence or supervision of Mr Badeni’s partner Ms D and went to their mother. There was then, at least on Ms Dangerfield’s evidence, some brief tension and hostility between the parties when Mr Badeni sought that the children return to his care.
Such tensions might arise if both parents are present at events. However, the evidence would not support the exclusion of Mr Badeni or, for that matter, Ms Dangerfield from any event that both parents might be permitted by the school to attend. Important and significant caveats, however, are partially addressed by the relief sought by Ms Dangerfield.
It is important that the parents not seek to communicate with each other unless that is cordial and consensual. At this point, it would not seem to be so and accordingly, I propose to include, as indicated above, a restraint that neither parent seek to engage with the other at school events, and that each advise the other that they intend to be present. Each deserves that degree of respect and it will also allow them to prepare for the event if they feel that it would be in any way uncomfortable.
I am conscious that Ms Dangerfield deposes that the one occasion when both parents were directly physically present with each other (the occasion in November 2019 when both attended V’s school after she had been assaulted by a stranger) was uncomfortable for her. On that occasion both were sat in a room together rather than both being present as part of the school community and with distance between them. Whilst both might be present at events, and this might, of itself, generate some discomfort for Ms Dangerfield, I am conscious that it would not preclude her attending. Ms Dangerfield is highly committed to her parenting of these children and would not let such things get in her way.
That said, I am conscious to not make the experience more difficult or onerous for Ms Dangerfield than it need be. But there are compromises that must be made when parents simply cannot get on or communicate well and if necessary to advantage their children. This is especially so as I am conscious that what arises in this case is discomfort rather than safety, a preference rather than an imperative.
Such a compromise is, in this case, both parents being able to be present and the children benefit from the participation of each. In that context it is difficult to understand why it was necessary for Ms Dangerfield to raise opposition to Mr Badeni’s participating in class reading groups. Mr Badeni’s participation would not have exposed Ms Dangerfield to Mr Badeni’s presence. That event assists in understanding that the participation of both might be more proprietorial than fear or safety based in Ms Dangerfield’s opposition. Mr Badeni’s participation in the class room, absent Ms Dangerfield, would merely have allowed Mr Badeni to be a parent participating in class. It would have been a benefit not only to the children of these parents but to all of the children within the class.
Participation by both parents can and should occur provided that the additional caveats apply, those sought by Ms Dangerfield, that the parents conduct themselves in decorous fashion whilst present, not discussing each other or their relationship and simply engaging in the moment, as it were, in the activity at hand. Beyond that, however, the nature of the children’s relationship would be augmented by such orders.
Similarly, overseas travel would be beneficial. The submissions put by counsel on behalf of Ms Dangerfield do not oppose the inclusion of a section 65Y order. I propose, understanding as best I can the submissions that were put, to make such an order and allowing prior notice so that if it is genuinely considered necessary to bring application to oppose any specific trip, that it can be so.
Similarly, the children’s relationship with each parent would be benefitted by being able to speak with their parents by telephone. It is perhaps unusual that these children, at their ages and living in an era of technology, do not speak by telephone, FaceTime, video call or any other electronic means, with the parent in whose care they do not find themselves at any time. That may well be reflective of the discord and conflict and dysfunction in communication between their parents rather than anything that the children desire, or which would benefit them. I propose to remedy that by making orders for telephone communication to be able to occur, albeit on a somewhat frugal basis as sought by the father.
The Extent to Which Each Parent has Taken, or Failed to Take, the Opportunity to Participate in Decision-Making, Spend Time or Communicate With the Children
Neither could be criticised on that basis. The factor is, perhaps, best addressed by reference to the pre-June 2012 drafting of the legislation. At that point in time, section 60CC(4) directed the Court to consider the extent to which each parent had interfered in the other’s capacity to do so. It would seem that these parents, for good reason or bad, have interfered in each other’s ability, perhaps moreso Ms Dangerfield than Mr Badeni. The conflicts and disputes involving the Catholic Education Offices, addressing whether Mr Badeni was or was not permitted to attend at any particular event, has been disadvantageous to these children irrespective of why those matter arose.
These past difficulties should be addressed by the orders that I have already alluded to, allowing both parents to participate in events and obtain information and, when participating in events being subject to the caveats of advising the other in advance that they will be present, and the parents then not seeking to engage with each other or communicate. That is not ideal but is the best that can practically be achieved in furtherance of the children’s best interests.
The Extent to Which Each Parent has Fulfilled, or Failed to Fulfil, Their Obligation to Maintain the Child
Whilst this issue is not dispositive, it does warrant and require consideration.
Mr Badeni, in email communication with the children’s school, has made clear his view that as he was not the parent who enrolled the children, that he is neither obliged nor required, and nor does he intend, to contribute to the children’s fees. That does no credit to Mr Badeni.
The children’s education and their enrolment at their current schools was determined by the orders that were made in the first tranche of proceedings. Those arrangements were, in fact, determined within one week of the commencement of those proceedings by Mr Badeni. Mr Badeni perhaps needs to accept that they are the schools the children attend and to come to the party, as it were, in meeting some portion of the fees.
I am conscious that Mr Badeni suggests that his financial position is parlous,[16] but his children have educational needs. He has expressed his strong support for their education. And yet, as a concrete manifestation of his discharge of parental responsibility, Mr Badeni has not made any contribution to the children’s cost of education and does not presently make any contribution to the children’s costs at all. Parental responsibility is not merely words on paper. The provision of financial support for children is a legal and moral obligation, a parental duty, and it is a child’s right to be maintained by parents.
[16] No finding is made that it is so as the proceedings do not involve financial issues and there is no evidence regarding the financial affairs of either party.
Since a review of child support was recently initiated Mr Badeni has declined to make any financial contribution or provision. That circumstance should change. As a consequence of non-payment of child support significant arrears have accrued in a short space of time. All that this means is that irrespective of the success or otherwise of Mr Badeni’s AAT application, challenging the revised assessment, these children miss out.
As I have indicated, this factor is far from dispositive. But it does create some tension with relief that is sought. Mr Badeni seeks orders to be able to travel overseas with these children, all five of them. One would think that the cost of Mr Badeni travelling with eight children (the five of this relationship, his two step-children and his youngest eight month old child) together with his partner (10 people in total) would be substantial and, yet, he makes no contribution to the children’s financial needs. Similarly, Mr Badeni proposes providing mobile phones and presumably funding the call plans for them as well. One could well imagine that this would rankle with Ms Dangerfield in circumstances wherein she receives no financial assistance.
These matters are best dealt with by reference to attitude.
Likely Effect of Change Including Separation From Either Parent or Any Other Child or Person
That is a significant issue as regards Ms Dangerfield’s application. It is not as significant as the consideration of risk. If Y were subject to, and found to be subject to, an unacceptable risk through spending overnight time with her father, then that time would not be ordered. Such risk is not found.
The likely effect of change for these children is substantial. There has already been substantial disruption for this family unit during the currency of these proceedings. Since this tranche of litigation was commenced, Mr F has ceased practicing any relationship with his father. Thus, he is separated from his siblings each and every period that they spend with their father. During this tranche of proceedings, V has changed her primary place of residence, and now lives predominantly with her father, thus separating her from her siblings. Further change is not warranted or supported by the evidence.
Absent a finding of unacceptable risk and as addressed above, I am satisfied that there is no benefit to these children of change in arrangements, save and except to permit Mr Badeni to be more involved with their schooling and for these children to be able to speak with their parents, and each of them, during the long periods between their visits with each.
Practical Difficulty and Expense
I incorporate herein section 65DAA, subsection (5).
The parents live relatively close to each other. Geographical proximity is not an issue.
The difficulty is, perhaps, the ability of these parents to communicate in any effective manner and resolve difficulties. The primary issue that generates conflict and dispute between these parents is focused upon Y’s diabetes management and treatment. If that could be addressed (Mr Badeni no doubt will not rest with respect to that issue until the CGM device is fitted) then communication need not be abundant and, when it needs to and does occur, it can be appropriate (subject to the caveats and criticisms raised above regarding Mr Badeni’s communications with the school and others).
The ability of these parents to implement an arrangement for substantial time is well-demonstrated by that which has occurred since their separation, and particularly since orders were made in August 2017. The impact of those arrangements on these children, absent a finding of unacceptable risk with respect to Y, is positive. This must be recognised by the parents by the absence of any application by either parent to interfere with care arrangements for these children beyond Ms Dangerfield’s plea in relation to Y.
This factor favours the continuation of the present arrangement and the removal of barriers to telephone communication and school involvement.
Capacity of the Parents to Meet the Children’s Needs, Including Emotionally and Intellectually
Subject to the matters relating to Y’s healthcare and the criticisms raised of Mr Badeni’s insight, as demonstrated by his communication and actions (e.g. presenting V to the school each morning until she was enrolled) each parent is abundantly capable of meeting the needs of these children.
Each of these parents is intelligent, articulate and well-educated. They have much to offer their children. That includes a desire, more so on the part of Mr Badeni, to assist all of the children to be fluently bilingual in English and AA, to experience the world as best they can, and to have a broad range of experiences available to them. It would support a continuation of the present practices of relationship and greater involvement.
It does, however, require that Y’s medical needs be met. And that can only be achieved, I am satisfied, through vesting in Ms Dangerfield’s sole parental responsibility for that issue. Otherwise the level of conflict around that issue will negatively impact this whole family and especially Y and W (the latter being highly anxious about her sister’s treatment).
Maturity, Sex, Lifestyle and Background of the Children
These are children who have experienced significant chaos, confusion and disruption since separation, although perhaps that is to somewhat overstate matters.
The changes that have occurred with Mr F and V must have had profound impact upon all of these children and on each of their households, as well as the additional children that have come into their lives as a consequence of their father’s new relationship/s. However, these are children, as a cohort, are mature, intelligent and benefit greatly from their relationship with each other and each parent.[17] Accordingly, as little change as possible should occur and the changes that will occur, through imposition of restraints, reallocation of parental responsibility or otherwise, are to be focused upon meeting the children’s needs and providing even greater benefit to them.
[17] Although the relationship between Mr F and his father is presently disrupted. Mr F is no longer a child and no longer subject to the Court’s jurisdiction.
Aboriginality
Neither parent identifies as Aboriginal or Torres Strait Islander. Thus, nor do the children. Culture need not be more specifically considered as each parent is fully supportive of the rights of these children to participate in various cultural activities relevant to them.
Attitude of Each Parent to the Responsibilities and Duties of Parenthood
It must be observed, not merely for the sake of criticism, that Ms Dangerfield’s attitude is, by and large, preferable to that of Mr Badeni.
Mr Badeni has not coped well with separation, as he has been clear in conceding not only in his evidence before the Court but in his communications with others, especially the school.[18] The separation came as something of a surprise to him and he remains very much in the dark and confused by it.
[18] I do not suggest that it has been easy for Ms Dangerfield. Further, I accept that separation has been made harder for Mr Dangerfield by Mr Badeni’s words and actions.
However, the separation of these parents is a reality now for some nearly five years past. Adjustment should be supported by the counselling that Mr Badeni has engaged with and Mr Badeni requires and will hopefully be assisted with some attitudinal change and greater insight. Mr Badeni indicates, to some extent, that he is beginning to do so or already does understand the impact of his communication styles and the content of his communication upon Ms Dangerfield, the children and the children’s relationship with others.
It is not necessary for the school the children attend to be given chapter and verse information as to the breakdown of a relationship between the children’s parents. The school (and the children) should not be embroiled in those disputes. They should be left to educate these children. Similarly, Y’s medical treatment team does not need to hear from either parent (although I do not suggest a criticism in this regard of Ms Dangerfield) a litany of complaints by each parent of the other, or a rehashing of their past disputes. Beyond those criticisms, and the matters relating to financial support, the attitude that each parent has is child-focused.
Each parent wants what is best for their children. I accept and appreciate that Mr Badeni has much on his plate at present. But he must – and I accept the he does by and large – prioritise Y’s health needs above everything else. The consequences of failing to do so are potentially disastrous. However, by reference to the discussion of unacceptable risk above, I am satisfied that his attitude is sufficient to obviate against that unacceptable risk being present or realised, and sufficient to support an abundant practice of relationship by these children with their father and paternal family.
Family Violence
The evidence that is raised with respect to family violence does not permit any finding to be made as to a need to protect these children from family violence. Certainly, that which occurred between the father and Mr F, leading to an apprehended domestic violence order, could not be typified as anything but family violence. It is unclear from the evidence which, if any, of the children were present, but one would think at least all of the minor children, as well as Ms D’s children. That event must have been distressing for all. It is not something which these children need be exposed to, nor should they. The father’s initiative, without compulsion of Court order, to engage in a program to assist him gives some confidence that it might well be avoided in the future.
Family Violence Orders
Whilst there is a family violence order for Mr F’s protection and imposing prohibitions upon Mr Badeni, it is not relevant for this determination as Mr F does not practice a relationship with his father.
Whether it is Preferable to Make Orders that will Least Likely Lead to Avoidance of Future Proceedings
As I have already indicated, there are problems in achieving perfectly. I am not satisfied that engaging the parties in further counselling (whether confidential family counselling or otherwise) is practical or will assist. Similarly, I am not satisfied that I can make any order of any meaningful nature with respect to overseas travel that can obviate, one way or the other, against the potential for future proceedings.
The best that can be done is to avoid future proceedings in relation to Y’s medical treatment. And the only way that that can be realistically achieved is through the allocation of parental responsibility to one parent only. Y lives predominantly with her mother. Ms Dangerfield has demonstrated clearly that she is able to meet Y’s health needs and has the confidence and support of Y’s treating medical team. Accordingly, Ms Dangerfield shall be invested with that responsibility.
For all of those reasons, I am satisfied that orders can and should be made as set out herein.
I certify that the preceding two hundred and forty-one (241) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 27 February 2020
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Jurisdiction
-
Procedural Fairness
-
Remedies