Badeni and Dangerfield
[2020] FamCAFC 133
•3 June 2020
FAMILY COURT OF AUSTRALIA
| BADENI & DANGERFIELD | [2020] FamCAFC 133 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Reinstatement – Where the appellant father failed to file a draft index to the appeal book in accordance with r. 22.13 of the Family Law Rules 2004 (Cth) – Reasonable excuse for delay – Where the father’s proposed appeal has very limited prospects of success – Where it would work an injustice upon the respondent mother and the child for the appeal to proceed – Application for reinstatement dismissed – No order as to costs. |
| Family Law Act 1975 (Cth) s 67ZC Family Law Rules 2004 (Cth) rr 22.13, 22.44 Federal Circuit Court Rules 2001 (Cth) r 16.05 United Nations Convention on the Rights of the Child art 24 |
| CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 De Winter and De Winter (1979) FLC 90-605 Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 Ralton & Ralton [2017] FamCAFC 182 Re: Kelvin (2017) FLC 93-809; [2017] FamCAFC 258 Secretary, Department of Health & Community Services v JWB and SMB (1992) 175 CLR 218; [1992] HCA 15 |
| APPLICANT: | Mr Badeni |
| RESPONDENT: | Ms Dangerfield |
| FILE NUMBER: | CAC | 316 | of | 2017 |
| APPEAL NUMBER: | EAA | 39 | of | 2020 |
| DATE DELIVERED: | 3 June 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney (via videolink) |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 14 May 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 27 February 2020 |
| LOWER COURT MNC: | [2020] FCCA 344 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Finch (direct brief) |
| SOLICITOR FOR THE RESPONDENT: | Women’s Legal Centre ACT (on a duty basis) |
Orders
The Application in an Appeal filed on 4 May 2020 be dismissed.
There be no order as to costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Badeni & Dangerfield has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EAA 39 of 2020
File Number: CAC 316 of 2017
| Mr Badeni |
Applicant
And
| Ms Dangerfield |
Respondent
REASONS FOR JUDGMENT
Introduction
By an Application in an Appeal filed on 4 May 2020, Mr Badeni (“the father”) seeks reinstatement of his appeal which was deemed to be abandoned because he did not file a draft index to the appeal book within the time required (r 22.13(3) and r 22.44 of the Family Law Rules 2004 (Cth) (“the Rules”)). The father’s appeal is from Order 2 and Order 7 of the final parenting orders made by a judge of the Federal Circuit Court of Australia on 27 February 2020 (Order 7 was amended pursuant to r 16.05 of the Federal Circuit Court Rules 2001 (Cth) on 16 March 2020) in proceedings between the father and Ms Dangerfield (“the mother”).
The proceedings before the primary judge concerned the parenting arrangements for five of the parties’ seven children (those under 18 years of age), although in reality, the focus was only on one child, Y born in 2011 (“the child”). In 2015, the child was diagnosed with type 1 diabetes. This condition requires whoever is caring for the child regularly to check her blood glucose levels, including several times during the night and to inject her with insulin whenever necessary.
Orders were made on 17 August 2017 by consent which provided for the mother and the father to have equal shared responsibility for six of the parties’ seven children (those under 18 years of age). The children were to live with the mother and spend time with the father for three out of four weekends during school terms, as well as significant periods of time during the school holidays. Just over a year later, on 22 October 2018, the father filed an Initiating Application seeking orders that dealt with a number of parenting matters but the main focus was on the management of the child’s diabetes.
At some time in late 2017, the father formed the view that the child’s condition would be assisted by a Continuous Glucose Monitoring System (“CGMS”), and indeed, on occasions told the child that one would be fitted to her arm. The mother did not agree to this course.
So it was that in the father’s Initiating Application filed on 22 October 2018, the father sought an order that he have sole parental responsibility for the child’s medical treatment.
The primary judge did not accept the father’s contentions and instead ordered that the mother have “sole parental responsibility for making medical treatment and health decisions” for the child (Order 2) but on terms that saw the father being involved in all medical appointments and advised of any recommendation or any changes to be made to the management of the child’s diabetes. This was essential as the child would be spending substantial and significant time with the father.
The father’s application for reinstatement
When considering an application for the reinstatement of an appeal, the aim of the Court is to do justice between the parties. Generally speaking, the Court will look to the nature of the explanation, if any, for the failure to file the draft index to the appeal book and any prejudice that might flow to the respondent from the applicant’s failure to comply with the Rules (Gallo v Dawson (1990) 93 ALR 479 at 480).
An appellant should not lightly lose their right to appeal due to a mere procedural slip (Jackamarra v Krakouer (1998) 195 CLR 516 at 517).
The father was required to file the draft index to the appeal book by 22 April 2020 but did not (r 22.13(2) of the Rules).
Explanation for delay
The father explains his delay in filing the draft index to the appeal book by saying that he has been home schooling his children and attempting to work from home due to the COVID-19 pandemic. The father said that from the period commencing on 20 April 2020 to 27 April 2020, he was caring for six of his children (Father’s affidavit filed on 4 May 2020, paragraph 8). I consider this to be a reasonable excuse for the delay.
Merits of the appeal
The mother submits that the prospects of success of the father’s appeal are so weak that it would be futile to reinstate it.
The father’s Notice of Appeal filed on 25 March 2020 contains thirteen grounds of appeal and all but one deal with the issue of the child’s health.
Grounds 1 and 2 assert that the primary judge erred by not taking into account art 24(1) and art 24(2)(c) of the United Nations Convention on the Rights of the Child. Australia’s obligations under that convention in relation to children are given effect in the various provisions of the Family Law Act (1975) (Cth) (“the Act”) and it does not stand as a separate set of criteria which is to be taken into account in parenting cases (Ralton & Ralton [2017] FamCAFC 182 at [18]).
Ground 3 asserts that the primary judge did not take into account the opinion of Dr J that the child would “gain optimal benefit from the technology to maintain stable glucose and improve their quality of life”.
Dr J is a specialist in paediatric endocrinology and diabetes and is the child’s treating doctor. He provided a report in the form of a letter addressed to counsel for the father which was dated 8 May 2019 (at [24(c)]. The report focussed on CGMS.
The father has a firm view (described as a “strident desire” by the primary judge at [187]) that the child be fitted with a CGMS immediately, whereas the mother’s view is that neither she nor the child are ready for such a step, although the mother accepts that her view may change in the future.
The father relied upon Dr J’s report dated 8 May 2019 to support his view. The phrase that is quoted by the father in Ground 3 does not appear in the primary judge’s reasons for judgment. I shall assume, however, for the purpose of these reasons for judgment, that it is a quotation from Dr J’s report.
The primary judge referred extensively to Dr J’s report. His Honour said:
66.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.
67.Whilst there is clear indication that CGM technology is adopted by the majority of the ACT community (approximately 75% - see page 112 of [the father’s] affidavit), a number of provisos for the use of the technology by [the child] 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).
…
76.As regards the suggested “strong support” for [the child’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.
(Emphasis in original)
However, his Honour also quoted different aspects of Dr J’s report, which suggested that in the present case, the immediate installation of a CGMS might not be appropriate. His Honour said:
77.The following comment is then offered:
Given that [the child] 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. [The child] 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 [the child] 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.
…
80.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.
This led his Honour to conclude:
81.Overall, Dr [J] offers some real support for the potential benefits that a CGM device may provide to [the child]. 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.
Clearly, the primary judge considered that a CGMS potentially provided real benefits to the child. Accordingly, his Honour took the matter raised by Ground 3 into account and thus it is difficult to see how that ground of appeal would succeed.
Ground 4 asserts that the primary judge’s finding that the mother understood and acknowledged the benefits of a CGMS (at [181]) was manifestly unreasonable having regard to the mother’s oral evidence.
As emerges from the paragraphs of the primary judge’s reasons for judgment already quoted above, the child was reluctant herself to be fitted with a CGMS. The child was however engaging in play therapy with a view to assist with the acceptance of such a device being fitted in the future (at [62]). Dr J had given evidence as to the difficulties that he saw with the fitting of a CGMS at the time of the hearing before the primary judge. Nonetheless, the father submits that the primary judge found that the mother understood and acknowledged the benefits of a CGSM as recorded in the following paragraphs:
169.[The mother] has not demonstrated that she has a closed mind to the CGM device being fitted to [the child] at some point in the future when both she and [the child] feel ready for it. I am not satisfied that [the mother’s] objection to the fitting of that device is, in any way, connected to [the father’s] zealous desire that it be fitted. It is merely that [the mother] is more responsive to [the child’s] anxieties. Further, I am not satisfied that [the child’s] anxieties regarding the device being fitted to her are connected with or reflective of [the mother’s] anxieties. They are founded, perhaps, in similar concerns, but [the child] would explicably have some concern in her circumstances, particularly noting that it is a somewhat invasive procedure to fit the device.
170.The concerns that [the mother] holds - that [the father] sees the device as a panacea - are not fanciful. I can well understand why she would hold that belief, although I am satisfied it is, to some extent, influenced by her general lack of trust for [the father]. [The father] desires what is best for his daughter. That, perhaps, informs his zeal for the fitting of the CGM device, but that zeal would appear to have become all-pervasive and unfortunately so.
…
181.I am satisfied, however, that it is impractical and contrary to [the child’s] best interests for both of her parents to continue to be in conflict regarding her medical treatment. Ironically, if [the father] 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 [the mother] 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.
The primary judge’s finding that the mother understood and acknowledged the benefits of a CGMS did not drive the orders that were ultimately made in this particular case. Rather, the orders were made because of the conflict between the mother and the father. His Honour said:
187.In relation to the medical issue, however, in light of the strident desire of [the father] 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 [the child] 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.
…
240.The best that can be done is to avoid future proceedings in relation to [the child’s] medical treatment. And the only way that that can be realistically achieved is through the allocation of parental responsibility to one parent only. [The child] lives predominantly with her mother. [The mother] has demonstrated clearly that she is able to meet [the child’s] health needs and has the confidence and support of [the child’s] treating medical team. Accordingly, [the mother] shall be invested with that responsibility.
I do not see the link between the finding complained of and the findings made in relation to parental responsibility because the same result would have ensued even if the mother did not understand or acknowledge the benefits of a CGMS. The conflict between the mother and the father, the reluctance of the child to be fitted with it and the concerns of Dr J would still remain. Thus, any error made by the primary judge, if indeed there be one, could not be material to the outcome (De Winter and De Winter (1979) FLC 90-605 at 78,092).
Grounds 5 and 7 assert that the primary judge did not give sufficient weight to the following:
·the child had experienced life-threatening hypoglycaemic events and a CGMS would alert the parents of any future event of that nature (Ground 5); and
·repeat severe episodes of hypoglycaemia will have an adverse impact on the child’s cognitive ability and brain function over time (Ground 7).
Grounds 6 and 9 assert that the primary judge gave too much weight to the following:
·the fact that two hypoglycaemic events had occurred in the father’s care and one in the mother’s care (Ground 6); and
·the fact that the child lives primarily with the mother (Ground 9).
Challenges to weight given to particular facts in parenting cases face a very high bar (Norbis v Norbis (1986) 161 CLR 513 at 539-540). Indeed, in CDJ v VAJ (1998) 197 CLR 172 at 218-219, the High Court of Australia found that quite different orders can be properly made by different judges acting on the same evidence.
The primary judge mentioned and discussed each of the above events and clearly took them into account. The father’s real complaint, it seems to me, is that the primary judge did not accept the father’s contention that the child should now be fitted with a CGMS, regardless of the child’s wishes, the concerns of the treating doctor, or the concerns of the mother. That is insufficient to establish error by the primary judge and it is difficult to see how these grounds of appeal (Grounds 5, 6, 7 and 9) would succeed.
Ground 8 raises s 67ZC of the Act and submits that the primary judge erred by not making an order pursuant to that section, presumably to order that the child be fitted with a CGMS. His Honour said:
104.I do not propose to make any specific order with respect to the “treatment” that is to be provided to [the child] for her diabetes. That is a matter for the exercise of parental responsibility by a parent or parents and in consultation with medical advice. Accordingly, I propose to treat the issue as connected with the issue of parental responsibility as discussed above.
(Footnote omitted) (Emphasis in original)
As described in the evidence, the fitting of a CGMS is not a special medical procedure as described in Secretary, Department of Health & Community Services v JWB and SMB (1992) 175 CLR 218 (“Marion’s Case”) and Re: Kelvin (2017) FLC 93-809. It is a commonly used device which assists in monitoring a chronic condition. His Honour found that many children have been fitted with a CGMS in the “ACT Community”, obviously without an application to the Court, and in the ordinary course of the exercise of parental responsibility.
I cannot identify any error in the primary judge’s approach.
Contrary to the suggestion in Ground 10, the primary judge was well aware of the “long term negative impacts of severe hypoglycaemia events” (see [53]; [54]; [76]; [82]–[84] and [87]).
Ground 11 asserts that the primary judge “likening a [CGSM] to a [t]hermometer was manifestly unreasonable and not supported by the evidence.” This ground of appeal does not do justice to his Honour’s reasons for judgment which did compare a CGMS with a thermometer but in the following context:
49.The issue of whether [the child] 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 [the child’s] person and thus requires parental consent. But it does not “treat” [the child’s] diabetes. It might be a tool in a treatment regime but it is, to [the child’s] treatment, no more than a thermometer would be to treatment of a virus.
50.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. 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 [the child’s] carers, at any given point in time, injecting her with insulin.
(Footnote omitted) (Emphasis in original)
What his Honour was attempting to do in those paragraphs was to explain that a CGMS is a monitoring and measuring device and does not itself provide any treatment. The reference to a thermometer might have been clumsy but did not demonstrate any misunderstanding of the device. No challenge is made to the rest of his Honour’s reasoning in those paragraphs. Clearly, a CGSM is more than just a thermometer, but his Honour’s point was that its task was nonetheless one of monitoring and measuring and that constant supervision by the child’s carers was still required.
Ground 13 refers to the Notice of Risk filed by the father on 22 October 2018. The father’s allegation is that the primary judge erred by “misinterpreting the allegation of neglect” in the father’s Notice of Risk and as a result failed to take into account that allegation.
In his Notice of Risk, the father referred to the fact that “[f]luctuations of … blood glucose levels could be life threatening” (at [53]) and referred to “three known occasions” where the child has experienced a serious hypoglycaemic event due to inadequate monitoring of her blood glucose levels (at [54]). This led his Honour to say that the father went so far to allege, that by refusing to agree to the child being fitted with a CGMS, the mother was exposing the child to “serious neglect” (at [56]).
A Notice of Risk makes allegations, it is not evidence of them. The primary judge was well aware of the father’s allegations and his concerns, but even if his Honour, or the father, overstated them, the case was decided on the evidence and not upon the father’s allegations – as it should have been. Any misinterpretation of the Notice of Risk was therefore immaterial to the outcome.
Finally, Ground 12 states:
Taking into account Order 7, that the Judge in specifying the start and end times for both school and non-school days in Order 6 created uncertainty in the Orders on school days in circumstances where he had no evidence before him as to when school commenced and ceased.
(As per the original)
Order 6 provided that the children spend time with the father during school terms “from 4.30 pm Friday until 8 am the following Monday”. Order 7 provided that for the purposes of the children spending that time with the father, “the father shall collect the children from and return the children to their school”.
The latter order was amended pursuant to r 16.05 of the Federal Circuit Court Rules 2001 (Cth) on 16 March 2020 to add the words “if a period commences at the conclusion of a school day or concludes at the commencement of a school day”.
The error asserted by the father seems to be that the time for changeover was not at the end or the beginning of the school day but at 4.30 pm and 8.00 am respectively (see the father’s proposed Order 4 which provides for collecting the children “at the cessation of school, being currently 3pm” and returning them “at the commencement of school being currently 9am”).
The father did not identify the evidence that was before her Honour as to the children’s school hours.
There may be some difficulty with orders that would see the children being at school for some time after school ceased and they were unsupervised. However, the periods provided for in the orders are subject to the parties agreeing otherwise from time to time. If there was a real problem with these orders, which placed the children in any difficulty, then surely the responsible parents could agree on an appropriate solution.
More importantly, I do not see that any error has been identified on behalf of the primary judge. The fact that different orders could have been made does not identify error.
Conclusion and Costs
It follows that the father’s proposed appeal has very little limited prospects of success and it would work an injustice upon the mother and the child for this appeal to proceed.
Accordingly, the father’s Application in an Appeal will be dismissed.
No order for costs was sought by the mother.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 3 June 2020.
Associate:
Date: 3 June 2020
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