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 |
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- AGLC
- Badeni and Dangerfield [2020] FCCA 344
- Case
- [2020] FCCA 344
- Decision Date
CaseChat Overview and Summary
The court was required to determine the extent of sole and equal shared parental responsibility for the children, particularly concerning medical and health decisions for Y. Additionally, the court needed to establish the living arrangements for the children, the specific time each parent would spend with them, and the communication protocols between parents and children, as well as between the parents themselves regarding the children's welfare. The court also considered provisions for international travel and the management of Y's diabetes.
Judge Harman ordered the discharge of all prior parenting orders. Ms Dangerfield was granted sole parental responsibility for medical and health decisions concerning Y, with specific provisions for Mr Badeni to access medical reports, attend appointments (by telephone for quarterly clinic appointments), and arrange face-to-face appointments under certain conditions. Both parents were to ensure Y's glucose monitoring data was uploaded promptly. Subject to these specific provisions for Y, both parents were to have equal shared parental responsibility for all five children.
The orders stipulated that W, X, Y, and Z would live with Ms Dangerfield, while V would live with and spend time with each parent according to her wishes. Detailed time arrangements were set out for Mr Badeni's time with W, X, Y, and Z, including during school terms, holidays, birthdays, and specific weekends. Further orders addressed communication between parents and children, the exchange of information regarding medical matters and emergencies, and specific requirements for Mr Badeni concerning Y's diabetes management, including the presence of a trained individual and a glucagon kit. The court also imposed restrictions on Mr Badeni's communication with schools and other entities, and mandated that both parents be listed as emergency contacts and have access to school information. Provisions were made for parents to attend school events, with notice requirements and restrictions on interaction. Finally, the court authorised international travel for the children during the care periods of each parent, subject to strict notice and passport provisions, and dismissed all outstanding applications.
Orders
Orders of the court
1.
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.
2.
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.
3.
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.
4.
W, X, Y and Z shall live with their mother, Ms Dangerfield.
5.
V shall live with and spend time with each of her parents in accordance with her wishes.
6.
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.
7.
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”
8.
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.
9.
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.
10.
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.
11.
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.
12.
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.
13.
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.
14.
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.
15.
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.
16.
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.
17.
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.
18.
All outstanding Applications and Responses are dismissed and all issues are removed from the list of matters awaiting hearing.
19.
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.
20.
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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