Bolkvadze & Bolkvadze
[2024] FedCFamC1F 429
•25 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bolkvadze & Bolkvadze [2024] FedCFamC1F 429
File number: SYC 2018 of 2022 Judgment of: CHRISTIE J Date of judgment: 25 June 2024 Catchwords: FAMILY LAW – PARENTING – Application for Review – Where the children have various developmental, psychological and medical needs – Where the parties’ different approaches to the children’s medical treatment have been a source of conflict of which the children are aware – Proposal of father for sole parental responsibility to be allocated to him and a preponderance of time in his care such that the decisions can be implemented – Proposal of mother to return to an equal time arrangement and greater involvement in decision making – Where the children have consistently expressed a desire to spend equal time in the care of both parents – Significant weight on children’s views – Parental responsibility – Where it is in the best interests of the children for parental responsibility on an interim basis to be allocated to one parent – Orders for the father to have sole parental responsibility for the children in relation to all medical matters and for the mother to inquire with and provide feedback to the children’s treaters – Orders relating to the appointment of a single expert paediatrician. Legislation: Family Law Act 1975 (Cth) ss 60CC, 61C, 61DAA Division: Division 1 First Instance Number of paragraphs: 99 Date of hearing: 17 June 2024 Counsel for the Applicant: Mr Stapleton Solicitor for the Applicant: Boyce & Boyce Family Lawyers The Respondent: Litigant in person Independent Children's Lawyer: Ms Bleier, Steiner Legal ORDERS
SYC 2018 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BOLKVADZE
Applicant
AND: MS BOLKVADZE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
25 JUNE 2024
THE COURT ORDERS THAT:
1.The father have sole parental responsibility for the children X born 2009, Y born 2011 and Z born 2015 (“the children”) in relation to all medical matters, including but not limited to the children’s engagement with and attendance upon doctors, psychologists, psychiatrists, dieticians, paediatricians or other medical health or allied health or development professionals (“children’s treaters”).
2.The mother is restrained from taking the children to attend upon or become engaged with any doctors, psychologists, psychiatrists, dieticians, paediatricians or other medical health or allied health or development professionals.
3.Each of the mother and father will follow all recommendations of any of the children’s treaters, including in relation to administration of medication (or cessation of administration of medication).
4.The father shall use his best endeavours to ensure that any recommendation by any of the children’s treaters is reduced to writing by that person so he can provide it to the mother.
5.The mother may make inquiries of the children’s treaters about the status of treatment and may obtain any reports which the children’s treaters generate.
6.The mother is restrained from providing unilateral instructions about treatment to the children’s treaters but may provide the treaters with feedback about the children’s presentation in her care.
7.Both parents will do all things and provide all documents requested by the children’s treaters in the timeframe proposed by the children’s treaters.
8.In the event that the father is unable to obtain a written note of the recommendations of the children’s treaters in accordance with Order 4 then he will provide the mother with written notice of the medical treatment and medical regime which has been recommended.
9.The mother will not undermine (to the children or otherwise) any parental responsibility decision made by the father for the children.
10.The parties shall communicate via Our Family Wizard, and are restrained from using any other method except in the case of an emergency.
11.The parties have liberty to provide these orders to the children’s treaters.
12.The children live with the parents on a week about basis as follows:
(a)Week 1 with the father from after school Friday (or 3pm on a non-school day) to before school Friday (or 3pm on a non-school day);
(b)Week 2 with the mother from after school Friday (or 3pm on a non-school day) to before school Friday (or 3pm on a non-school day); and
(c)For the avoidance of doubt, this cycle continues through school terms and school holidays and does not reset.
13.The children have telephone/audio-visual communication (including Skype and facetime) with the parties at any time as agreed between the parties and failing agreement with each party when the child is not otherwise in their care, on the Sunday and the Tuesday not earlier than 6.00 pm and not later than 7.00 pm for an age-appropriate length and no longer than 30 minutes, with the ‘non-carer’ party to initiate the call and the ‘carer-party’ to facilitate the child receiving that call.
14.The parties will do all acts and things necessary to appoint a single expert paediatrician by agreement and, failing agreement within 28 days, then the father is to file an application and affidavit within a further 14 days in relation to the appointment of the single expert.
15.In the event of an application being filed pursuant to Order 14 above, the mother and Independent Children’s Lawyer (“ICL”) are to file a response within a further 14 days.
16.The mother shall file an affidavit in support of her response within 14 days.
17.The ICL may file an affidavit in support of her response within 14 days but leave is granted to the ICL to file a response without an affidavit at her election.
18.Any application filed pursuant to Order 14 is to be listed before me.
19.This matter is listed for final hearing for five days commencing 25 November 2024.
20.This matter is listed for case management at 9.30 am on 4 September 2024.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
This is an interim parenting matter being heard by way of Review of the decision of a Senior Judicial Registrar.
The proceedings concern parenting arrangements for the parties’ three children:
(1)X born 2009 (aged 14);
(2)Y born 2011 (aged 13); and
(3)Z born 2015 (aged 9).
On 6 May 2024 the respondent mother filed an Application for Review of the orders made by a Senior Judicial Registrar on 17 April 2024.
The proceedings before the Senior Judicial Registrar related to the applicant father’s Application in a Proceeding filed 4 October 2023.
BACKGROUND
The parties married in 2002 and separated in August 2020 under one roof. The parties implemented an arrangement whereby the children would remain living in the former matrimonial home and each parent would take turns living in the home with the children. This began as a 3:4 arrangement and became a week about arrangement in 2022.
The father commenced proceedings on 28 March 2022 seeking property orders only. The mother filed a response on 11 May 2022 joining parenting to the proceedings.
On 1 September 2022 an order was made for the children to live in an equal time week about arrangement at each parent’s separate household.
On 11 April 2023 orders were made by consent appointing Dr C as the single expert to prepare a family report, and for Dr B to perform an independent assessment of each of the parties.
The reports by Dr B were released to the parties in June 2023. The father filed an Application in a Proceeding on 3 October 2023 seeking sole parental responsibility for the children and to change the parenting arrangements to one where the children live with him and spend time with the mother three nights per fortnight, and each party on a week about basis during school holidays.
On 16 November 2023 the parties entered into interim parenting orders by consent which provided:
(a)That the father have sole parental responsibility for the children in relation to all medical matters (Order 1);
(b)That the mother be restrained from taking the children to attend upon or become engaged with any treater (Order 2);
(c)Conditions in relation to communication about, information from and compliance with the recommendations of the children’s treaters (Orders 3 –7); and
(d)The father’s application be stood over to a date not before 1 April 2024 pending release of the expert report by Dr C (Order 10).
The report by the single expert was released in February 2024.
The disputes that have arisen between the parties relate to their history of communicating to make decisions about the children, particularly in relation to the children’s health, in respect of which they all have special medical needs:
(a)All three children have been diagnosed with ADHD;
(b)Y and Z have an orthodontic issue;
(c)Y has anxiety (though the parties are at odds as to whether this is merely a feature of his ADHD); and
(d)Z has a diagnosis of other medical conditions, and nutrition issues.
The parties have made competing allegations of family violence perpetrated by the other, which may require adjudication at a final hearing.
APPLICATION FOR REVIEW
On 16 April 2024 the Senior Judicial Registrar heard the parties’ respective interim applications.
On 17 April 2024 the Senior Judicial Registrar made orders to the effect that:
(a)The orders made 16 November 2023 remain in effect (Order 1);
(b)The father provide the mother 36 hours notice in relation to exercising sole parental responsibility pursuant to the 16 November 2023 orders (Order 2);
(c)Varying Order 1 of the orders dated 1 September 2022 such that the children live with the father and spend time with the mother on a fortnightly cycle from 3.00 pm on Friday week 1 to 3.00 pm Wednesday week 2 (Order 3); and
(d)Dr C to prepare an updated report (Orders 5–7).
The mother filed an Application for Review on 6 May 2024 in relation to Orders 1–4 of the Senior Judicial Registrar and seeking that Order 1 of the orders made 16 November 2023 be dismissed, the children live with each party on a week about basis and that the parties have shared parental responsibility including for medical decisions for the children.
Being an Application for Review, the matter proceeded before me as a hearing de novo.
At the interim hearing before me, the father relied on:
(a)Outline of case filed 15 June 2024;
(b)Application in a Proceeding filed 3 October 2023;
(c)Affidavit of himself filed 13 June 2024;
(d)Psychiatric assessment of the mother by Dr B dated 23 June 2023;
(e)Psychiatric assessment of himself by Dr B dated 26 May 2023; and
(f)Family report by Dr C dated 10 February 2024.
The mother relied on:
(a)Outline of case filed 17 June 2024;
(b)Affidavit of herself filed 18 June 2024; and
(c)Affidavit of her friend, Ms D filed 8 April 2024.
The mother sought orders in accordance with her Application for Review.
Expert evidence
The parties have had the advantage of expert opinion evidence which is, as yet, untested. I have taken into account the opinions expressed by the various experts, each of whom is independent of the parties. I accept in due course the opinions expressed may change.
A single expert child and family psychiatrist, Dr C, met with the parties and children in September 2023 and produced a Family Report on 10 February 2024.
Dr C opined, among other things:
…both parents are capable caring parents and that they should both have an equal and ongoing role with the children.
Should the children remain in a shared parenting arrangement with both parents having equal time I believe that they are likely to continue to develop normally. They are maintaining a good relationship with both parents and they appear to have established a pattern which is familiar and which is workable for them…
The next option is for one parent or the other to have primary care of the children and possibly parental responsibility. At this point I do not see a strong advantage for the children for either parent to have primary care. The other parent is likely to feel a great sense of injustice. Nevertheless, should one parent have the primary care of the children I do believe that the other parent would adjust also to this situation as long as there was still reasonable and substantial time with the children…
The single expert observed and recommended that:
(a)The children continue in a shared parenting or substantially shared parenting regime;
(b)That a week about arrangement continue unless indicated;
(c)No recommendation as to parental responsibility but both parents are responsible and can provide competent input;
(d)No concerns for the appropriateness of the parents’ responses to the children’s needs.
(e)No clear preference as to where the children should reside primarily if one parent was to be primary carer.
(f)Parties continue to have supportive therapy as needed though no belief either parent has a specific psychological disorder requiring treatment.
A psychiatric assessment of the mother by Dr B occurred and a report was produced on 23 June 2023.
Dr B interviewed the mother and her treating psychiatrist. Dr B concluded the mother may have an adjustment disorder with anxiety in response to family separation and these proceedings and that she may have an underlying generalised anxiety disorder. He offered the opinion the mother may benefit from trialling a reduction or cessation of her medication and a trial of other medication and from undertaking alternative evidence-based psychotherapy for anxiety. Dr B expressed concern that if the mother presented in the same manner that she did to him to the children that it could cause the children distress.
A psychiatric assessment of the father by Dr B occurred and a report was produced on 26 May 2023.
Dr B interviewed the father. Dr B offered the opinion the father does not meet the criteria for a diagnosable mental illness but may previously have met diagnostic criteria for an adjustment disorder. It was opined that the father does not require additional mental health treatment currently.
Adjournment application
At the conclusion of oral submissions, the mother indicated that the children’s school reports ought to be available within 10 days and proposed that the matter be adjourned to allow for their tender. I declined to adjourn the proceedings on the basis that I was left with no doubt that the school reports of the children (which were in evidence) evinced good performance and conduct and I anticipated that the more recent reports would show similarly. The interests of the children require the matter to be determined with some expedition.
THE LAW
An interim parenting matter requires application of the same statutory principles as a final hearing but in a curtailed hearing, absent cross-examination where findings may be not always be possible.
The resulting orders must be in the best interests of the children.
The proceedings are being heard and determined following the amendments to the Family Law Act 1975 (Cth) (“the Act”) which came into effect on 6 May 2024.
CONSIDERATION
The parents both raise issues for determination relating to:
(a)Which orders for parental responsibility will be in the children’s best interests; and
(b)What arrangement for time with each parent will be in the children’s best interests.
The father contends that only sole decision-making responsibility and an arrangement where the children are substantially in his care will function to the children’s benefit having regard to their various diagnoses and treatment plans.
The mother seeks a return to an equal arrangement and greater involvement in decision making.
I accept that the parties do not have the same approach to the children’s medical treatment. I accept that the differences in opinion have been a source of conflict. I accept that the children are aware of the conflict between their parents.
I am being asked to determine the orders which will be in the best interests of the children on an interim basis. Section 60CC(2)(a) of the Act says:
(2) For the purposes of paragraph (1)(a), the court must consider the following matters:
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
Neither party is submitting that the orders which they seek (decision making responsibility or time) are primarily concerned with the safety of the children or the adults (although I acknowledge each makes allegations of family violence which may require adjudication at a final hearing).
The key issues in this case are:
(a)The children’s views;
(b)The children’s needs;
(c)The parties’ capacity to provide for the children’s needs;
(d)The need for a consistent approach to the children’s needs;
(e)The need to shield the children from parental conflict; and
(f)The children’s relationships with each parent.
It is challenging to determine which approach is likely to have the best outcome without the opportunity to test the evidence of the parties and the single expert.
The father’s primary position would appear to be that an increase in time in his care coupled with the order for sole parental responsibility will maximise his capacity to address the children’s complex needs.
Children’s views
I understand the argument made on behalf of the father, however I am also conscious that the children have consistently expressed a desire to spend equal time in the care of both their parents.
The children’s views in this case are a significant consideration for two key reasons:
(a)The age and maturity (in particular of the older two children); and
(b)The children’s expressed consistent wishes have been ascertained in circumstances where they have experienced (over a long period of time) an equal time arrangement and wish it to continue.
X is 14 years old and in year nine at school. The material suggests high intelligence not always consistent performance. When X met with Dr C he records she told him, “about the shared parenting and equal time, ‘[i]t’s going well. I’m happy with it now. It’s good as it is.’ She did not think it should change.” At a different point in the report, Dr C recorded X attitude to the time arrangements as “fair and … working adequately.”
Ordinarily a child describing an arrangement as “fair” suggests a concern on the part of the child about the feelings of the parents. This is not always an inappropriate concern but may suggest the view is taken as a form of keeping the peace. At this stage she could not suggest a better arrangement to Dr C and in those circumstances notwithstanding my concern it would appear that the equal time arrangement was one which was (at time of interview) meeting her needs.
Dr C set out the following detail from his interviews:
[Y] agreed [with [X]] that he believed the shared arrangement was working. “I’m happy with one week about. It works okay. I can’t think of a different arrangement.” He believed it also worked adequately for the parents. [Z] said he was not sure what to respond. He just responded, “I like it.”
Y is 12 and in year seven. He told Dr C, “[h]is overall wish is for the court to continue with the current arrangement of 50-50 shared arrangement week about.”
Z is 9 years old and in year three. It is important that I have regard to his views (notwithstanding his age), although the weight I attach to them is lesser. Z told Dr C he was content with the present arrangement.
Z has expressed some views about medication. I am not in a position to determine whether Z’s expressed views in this regard accord with his interests.
It is not clear whether the children expressed some of the above views while in session with their mother or separately. In any event, Dr C set out a further observation about the children’s views on their living arrangements:
I asked [Ms Bolkvadze] if she would like to ask the children any questions. [Ms Bolkvadze] initially looked a bit shocked and did not know what to ask them and then she said to the children, “Would you like to spend more time with me?” the children all looked happy about the suggestion of spending time with her but seemed quite confident about the shared arrangement. [Y] repeated, “I like it shared.” [X] agreed. [Ms Bolkvadze] looked a little disappointed that the children did not say that they wanted to spend more time, but she absorbed what they reported to her. The three children all indicated that they were happy spending time with each other and passing from one household to the next was not a problem for them.
There was a continuity to the views of the children expressed while in both households. While with the father Z spoke about being happy spending time with both parents. Y said the current arrangement was working well.
Given the conflict between the parents over a protracted period of time, I consider it significant that the children nonetheless sought to maintain the equal time arrangement.
The father’s primary submission in favour of a reduction of time appears to be linked to the regime for medical assistance.
I accept that the interviews with the children took place in September 2023 but there is no evidence to suggest these views have changed. Dr C concluded that “considerable weight can be placed on the opinion of the [two older] children, which was for equal time.”
The father is said to have acknowledged to the mother that the children expressed dissatisfaction with the April 2024 orders.
For the reasons discussed above, it is necessary to place significant weight on the children’s views in this case.
Children’s relationship with each parent
Relationship with mother
Dr C recorded, “[t]here was a positive ambiance between the children and the mother” and observed “[t]he children responded to their mother positively and seemed comfortable with her.”
Relationship with the father
Dr C saw the children in company with the father and described the interactions as close and affectionate. He said they appeared “happy and relaxed with [the] father”.
There is no evidence before me which would suggest that the nature of the relationship between the children and either parent is a significant determinative factor in this case.
Parental responsibility
At the heart of this dispute is decision making for the three children, particularly as regards their attendance upon doctors and allied health professionals and implementation of the recommendations of treaters.
Parental responsibility is defined in the Act. It “means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”
Orders have been made in this matter allocating parental responsibility and accordingly s 61C of the Act has been displaced.
The mother seeks an order for joint decision making. The father seeks an order for sole parental responsibility or sole decision-making.
In order to make an order for joint decision-making I would have to be satisfied that the operation of s 61DAA(1) of the Act would function to produce a positive outcome for the children. I would have to be satisfied that such an order was in their best interests. The section provides:
(1) If a parenting order provides for joint decision‑making by persons in relation to all or specified major long‑term issues in relation to a child, then, except to the extent the order otherwise specifies, the order is taken to require each of the persons:
(a) to consult each other person in relation to each such decision; and
(b) to make a genuine effort to come to a joint decision.
I am not concerned about the capacity of either parent to engage with professionals nor do I doubt the sincerity of their expressed desire to act in the interests of the children. What does concern me is whether they have the capacity to communicate, mediate, compromise and collaborate in a timely way to reach a decision.
The mother agreed to an order which provided that the father exercise parental responsibility in November 2023. I infer it was a recognition that the capacity for cooperation was challenging.
It is necessary to understand some of the context.
Children’s developmental psychological and emotional needs
X
In 2006, the parties’ daughter, X was diagnosed with ADHD. Both parties accept this diagnosis.
X would appear to have experienced some depressive symptoms in recent years although the mother is of the view that these may be symptomatic of her ADHD.
X has been prescribed a medication. The mother is concerned about side effects.
Z
Z has a diagnosis of a medical condition. The mother takes the position that Z’s development is within normal parameters.
In late 2021 Z was diagnosed with ADHD.
Z has been diagnosed with another medical condition. Z may have gastrointestinal issues. The parents have not historically agreed on an approach.
Z may have sleep issues.
Y
Y has been diagnosed with ADHD.
Y may experience some anxiety.
In respect of Y and Z, the father takes the view that a diagnosis of ADHD may not be accurate. The mother accepts that both children have been appropriately diagnosed. As a consequence of their difference of opinion the parties also differ in their approach to medication.
The mother submits that she is acting in accordance with the views of Z and Y when she seeks that they remain on medication and/or increase dosage.
The father notes that Y is anxious.
Both parties agree that Y and Z exhibit some issues around eating but I am not clear that there is a consensus as to diagnosis or treatment. I am also not clear about the extent to which this is an issue which impacts more generally on their health or merely limits the range of foods which they chose to consume (without compromising health).
I am not being asked to (nor could I on the evidence) determine whether the diagnosis is accurate. I am comfortable that the children are under the care of a qualified paediatrician who can make recommendations about care.
Either the father or the paediatrician or both appear to feel hampered by the mother’s contrary views in undertaking investigative medication testing and so I inquired of the parties whether one or both of two things may assist:
(1)The children’s treaters could receive these reasons for judgment;
(2)The orders could be amended to make the position as clear as possible.
I am balancing two considerations: on the one hand the father says that he requires additional time with the children to implement recommendations of the children’s treaters and on the other both parties and the ICL acknowledge the children’s close relationship with the mother and the children’s desire to divide their time between their parents equally.
The children are involved in the parental dispute – the text message which Z sent his mother on 21 March 2024 is a good example:
So I have been feeling, well I guess u could say I am feeling trashy today because I did some things wrong in nap plan. I found out some of my school friends are JERKS and I am angry at dad for not giving me 30 Milan grams [milligrams]. Yet he isn’t paying much attention to me even though I am under the floor under my blanket rolling around and making sounds like I am EXTREMELY worried or I am thinking about a traumatising past that I have had even though I haven’t had one.
(As per the original)
Z is aware of each parents’ position. Z is trying to obtain his mother’s support against the position his father has taken. It is conduct which could not exist if the parents presented a united front or declined to expose the children to their contrary views.
Conclusions about parental responsibility and time
I am concerned that unless the evidence categorically establishes that the children’s medical needs can only be met in the primary care of the father then then it is not appropriate to curtail the time they spend with their mother. I accept the mother’s submission that this may more properly be ascertained at a final hearing. I am unable to conclude that one or other of the parties is better able to meet the children’s developmental, psychological and emotional needs such that the time arrangement should favour one parent.
However, I am of the view that an interim arrangement for parental responsibility which sees it placed with one parent is indicated on the available evidence.
Accordingly, I have concluded that I should make orders for sole parental responsibility in favour of the father, a position the mother was previously prepared to consent to on an interim basis.
I should make orders that the mother receive information about the children’s treatment.
I should make orders which permit her to provide feedback to the children’s treaters to assist in provision of care on the understanding (underpinned by orders) that the provision of information to the treaters does not include the right to veto and undermine the treatment regime which the treater has determined in accordance with the father’s decision.
Dr E, the children’s current paediatrician, indicated difficulties arising out of an inability to communicate directly with the mother. It is important that Dr E be able to communicate with both parents.
It is important that the children’s treaters appreciate that:
(a)The father is the sole decision maker in respect of the children’s health;
(b)Both parents are a useful source of information about the children’s presentation in their respective households; and
(c)Both parents are obliged by these orders to implement the treaters’ decisions which have been informed by parental feedback and ultimately made by the father in consultation with the treater.
I am not making an order that the father give the mother advance notice of proposed decisions. I think that the children’s interests require less communication between the parents.
I stress that this is an interim order. If the evidence at final hearing, after testing, establishes a different regime is better for the children then the orders will change.
I am listing the matter for case management and for final hearing. The parties should be prepared to identify issues, witnesses and evidence at the scheduled case management hearing.
It is appropriate that there be two further pieces of expert evidence:
(1)A report by an independent single expert paediatrician – as is plain from the discussion above the parents have different views and the paediatricians who have provided care to the children have, on the basis of report, proffered differential diagnoses; and
(2)The update of Dr C’s report.
Dr C can then take into account the evidence of the paediatrician (if appropriate) in providing further evidence to the court.
I will grant liberty to the ICL to file consent orders in chambers in respect of the appointment of a single expert.
In the event that the parties cannot agree within 28 days the father is to file an application for appointment of a single expert and the mother and ICL are to file a response within a further 14 days.
The application is to be listed before me.
I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 25 June 2024
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