BOREHAM & DAWKINS

[2019] FamCA 229

FAMILY COURT OF AUSTRALIA

BOREHAM & DAWKINS [2019] FamCA 229

FAMILY LAW – CHILDREN – Parenting – Mother with sole parental responsibility seeks to enjoin father from interfering with surgical procedure on child.

FAMILY LAW – CHILDREN – Parenting – Father asserts that surgery is an elective and not therapeutic medical procedure and therefore court’s leave is required.

FAMILY LAW – PRACTICE AND PROCEDURE – Appointment of single expert witness.

Family Law Act 1975 (Cth)

Re Kelvin [2017] FamCAFC 258

APPLICANT: Mr Boreham

RESPONDENT: Ms Dawkins

FILE NUMBER: MLC 8489 of 2009

DATE DELIVERED: 12 March 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 12 March 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Barker in person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Dr Parker

SOLICITOR FOR THE RESPONDENT: Berger Kordos Lawyers

Orders

IT IS ORDERED THAT

1. These proceedings be adjourned for final hearing before me to commence on Monday 20 May 2019 at 10.00 am estimated to take not more than 2 days.

2. Pursuant to section 68L(2) of the Family Law Act 1975 the interests of the child X born … 2005 be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such representation and the independent children’s lawyer be appointed in sufficient time to be able to make recommendations about what interim parenting orders would be in the best interest of the child by the next return date NOTING THAT the independent children’s lawyer will be responsible for obtaining an opinion from Associate Professor AA as to the need for surgery for X.

3. Forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

4. Within 48 hours of notification of such appointment the solicitor’s for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

5. Associate Professor AA be treated as a single expert witness in these proceedings.

6. For the avoidance of doubt, in the event that the procedure is duly authorised Associate Professor AA’s involvement in these proceedings as a single expert witness will not preclude him from being the surgeon who performs any such procedure.

7. I reserve to the independent children’s lawyer liberty to have this matter brought on for mention at the request of either or both parents or by him/herself for directions including, but not limited to, a decision about whether any expert witness such as Associate Professor AA can be cross-examined by telephone rather than the parties or one of them incurring the costs of his personal attendance at Court.

8. Within 7 days the father provide to the mother, via her solicitor, and to the independent children’s lawyer a copy of all correspondence which he has had with Associate Professor AA.

9. That the costs of the mother of and incidental to this day be reserved.

10. My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.

AND IT IS NOTED that the mother warrants that the only correspondence, save for accounts, relating to payment for services rendered, which she has had with Professor AAs’ offices is the correspondence already tendered in these proceedings which is marked Exhibit “M2” and remains on the Court file.

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 Boreham & Dawkins has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8489 of 2009

MR BOREHAM

Applicant

And

MS DAWKINS

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

REVISED

1. This matter comes before me, having been sent out by the registrar from a duty list.  It is the mother’s application filed on 23 January 2019 in which she seeks injunctive relief against the father interfering with her authorisation of surgery for the parties’ daughter, X, who is thirteen and a half years old.  The mother proposes that X have certain surgery.  It is referred to in the medical correspondence, which is on the Court file, as the procedure. 

2. The father opposes the surgery, saying that it is not necessary, that he believes that the mother suffers a medical condition  and/or inappropriately pathologises the child and seeks medical treatment for her as a means of getting attention for the child or, perhaps, more worryingly, herself.  These proceedings have a long history and it is a highly conflicted family.  X has not seen or spent time with her father since 2017.  In 2018, pursuant to orders made by me on 11 July 2018, the mother has sole parental responsibility for X. 

3. In the mother’s capacity as the parent with sole parental responsibility for X, the mother is able to authorise any medical procedure which is within ordinary parental authority.  I have referred the father and counsel for the wife to the reasonably recent decision of Re Kelvin (2017) FamCAFC 258, which dealt with the circumstances in which it is necessary to obtain the Court’s authorisation to operate on a child. In that case, Kelvin was a child diagnosed with gender dysphoria and he was considered to be Gillick competent and wanted certain procedures.  

4. In the majority decision of Thackray, Strickland and Murphy JJ, their Honours discussed at paragraphs [130] - [139] the characteristics of what constitutes a therapeutic medical treatment as opposed to a non-therapeutic medical treatment or what one may be called or what one may refer to as elective treatment or treatment for which it is necessary to obtain the Court’s sanction.  Clearly, it is a matter of medical opinion as well as a matter of law. 

5. In this case, the condition for which the mother seeks that X be treated is not new.  It figured in earlier proceedings before me and, in particular, was referred to by the mother in her affidavit sworn on 11 July 2018 in completed proceedings.  As an annexure to that affidavit, there is some correspondence, which I’ve now caused to be extracted, which is exhibited as “M3”.  There is a letter from Associate Professor AA, dated 12 October 2016, in which he opines that X has a medical condition for which there are two approaches that can be taken. 

6. One would be to accommodate the deformity with an appropriate orthosis and give it a slight heel raise and medial arch support or, alternatively, “she can undergo either a medical procedure with a period of time of casting and then potentially a hinged AFO to deal with the habit.  There is a letter from her then treating surgeon, Dr BB, confirming his recommendation for the medical procedure sought by the mother.  There is further correspondence from Dr BB, dated 1 May 2018, in which he confirms his recommendation for a medical procedure as sought by the mother. 

7. There is a letter from the child’s physiotherapist, which the mother says was sent to her on 24 September 2017. I don't know whether it was written on that date.  In that, one Ms CC opines that the child has had enough of conservative treatment and management for a condition, and she would now recommend that the child undergo the procedure.  She does so from a position of saying that the procedure is generally the last resort and that, as a physiotherapist, it is not her mindset to opt for surgical intervention, in particular, for younger patients, but she does so in this instance. 

8. The application now comes before the court in circumstances where the mother had arranged for the child to be operated on by Dr BB; however, the father raised objections of which Dr BB took note, and, whether right or wrong, Dr BB has withdrawn from treating X and has now actually departed Australia to pursue his career elsewhere.  Somewhat poignantly, the mother provides a letter from Dr BB, dated 3 December 2018, in which he wrote to the mother’s solicitors as follows: 

   “By now, I have received two letters, one from the mother and one from an aunt who made it clear to me that she has worked in the [public service] for more than two decades.  I decided after two letters that I do not want to proceed with surgery.  I am relocating to [Country DD] in the first semester of 2019.  I do not feel at all comfortable with the whole situation – period.  I feel deeply sorry for [X], though, but I do not feel that I should place my life and that if my family and my career at risk due to issues outside my control.  I am sorry, but I have cancelled the surgery.”

9. However, the father denies having issued any threats or being intimidating to Dr BB or that his sister, Ms PC, did so on his behalf.  That may well be the father’s mindset; however, the tenor of Dr BB’s communication to the mother’s solicitors of 3 December 2018 (extracted above) indicates that he did feel under some pressure not to proceed with the operation and, ultimately, he bowed to that pressure, it would appear in his mind, based on his expressions to the expense of his patient. 

10. The first question to be determined in this matter is what the nature of the medical procedure or medical treatment that the wife seeks.  If it is therapeutic, then it is within her authority as the parent with sole parental responsibility to authorise; however, if it is not, then it requires the authority of the Court.  The father takes the point that he considers it to be elective surgery.  I have pointed out that he is not a doctor, but at the moment, all I have is hearsay evidence from Dr BB as to the communication he has had with both parents. 

11. The father says that Dr BB has indicated to him that it is elective and that the child should only be operated on if in pain.  The father says that in his observation of the child (albeit he hasn’t seen her for two years), she was not in pain.  It’s significant that the condition which the medical intervention seeks to remedy was said to be suffered by the child even when the child was seeing the father.  I will appoint an independent children’s lawyer.  They are first to organise a report from Associate Professor AA as to the nature of the surgery, having regard to the considerations set out in Re Kelvin’s case. 

12. It may be, as pointed out by the father, that Professor AA does not need to see X again in order to render such a report.  The cost of the report and any attendance upon X, if an attendance is necessary, will be at the initial cost of the mother.  I make this order because the father says that he’s unwilling to make any contribution to the cost of that evidence because he does not agree that any of it is necessary.  I may, in due course, make findings about the father’s attitude and the propriety of it but, for the meantime, I’m satisfied that the best way of proceeding with this matter with reasonably haste is to have the mother pay and, therefore, streamline the procedure for the obtaining of expert evidence.

13. The next matter to which the independent children’s lawyer should turn his or her mind is whether X is Gillick competent to the point that she can consent to this surgery herself.  There is certainly an indication in the most recent correspondence from Associate Professor AA that she is cognisant of the risks involved.  In particular, in the letter, dated 22 February 2019, which is exhibit M2, Associate Professor AA records:

    I have talked to [X] through the steps of what we do and the recovery, and I think she is certainly mature enough to understand what is done and the underlying reasons.

14. Finally, the mother seeks that this matter return to Court before winter, the significance being that after she has been informed by Dr AA that after winter there may be delays in operations.  She sought a date in May and I can provide a date in May 2019.  This is not a matter which I think would go for more than a day, but I will accord it two days in case we run over and to make sure we finish with it.  One of the matters that may well occur at the final hearing in May is that Dr AA will be required for cross-examination. 

15. In the event that whoever requires Dr AA for cross-examination should be responsible for the professional costs and disbursements of getting him into Court and they may carefully consider the appropriateness of evidence by telephone.  I would take any application in that respect by mention prior to May.  I will reserve liberty to the independent children’s lawyer to be able to have the matter fixed at short notice by liaising with my associate. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 12 March 2019

Associate: 

Date:  16 March 2019