Boswell & Boswell

[2021] FamCA 415

FAMILY COURT OF AUSTRALIA

Boswell & Boswell [2021] FamCA 415

File number(s):

MLC 11319 of 2013

Judgment of:

BENNETT J

Date of judgment:

17 June 2021

Catchwords:

FAMILY LAW – PARENTING – parental responsibility for health and medical treatment – parental conflict over choice of psychologist – oldest child excluded from private fee paying school because of misbehaviour – school requires external psychologist to treat child and support plan for re-introduction of child to school and to manage his behaviour into the future.

FAMILY LAW – PARENTING – where interim sole parental responsibility given to the father to instruct particular psychologist and paediatrician.

FAMILY LAW – PARENTING – suggestion for appointment of parenting co-ordinator for which parents would pay and/or participation of parents in Family Dispute Conference offered by the family courts if parents cannot agree on important issues in the future.

Legislation:

Family Law Act 1975 (Cth)

Number of paragraphs:

50

Date of hearing:

21 May and 17 June 2021

Place:

Melbourne (appearing by Microsoft Teams)

Solicitor for the Applicant:

In Person

Solicitor for the Respondent:

Ms Elisa Rothschild

Counsel for the Independent Children's Lawyer:

Mr Eidelson

Solicitor for the Independent Children's Lawyer:

Ms Macgregor

ORDERS

MLC 11319 of 2013

BETWEEN:

MR BOSWELL

Applicant

AND:

MS BOSWELL

Respondent

AND:

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BENNETT J

DATE OF ORDER:

17 JUNE 2021

THE COURT ORDERS THAT:

1.Until further order, the father have sole parental responsibility in relation to medical and therapeutic treatment of the children X born … 2009, Y born … 2011 and Z born … 2012 and specifically for instructing Dr K, psychologist, and Dr L, paediatrician.

2.For the implementation of paragraph 1 of this Order:

(a)The mother may continue to take the children to a general treating medical practitioner if they require treatment from a general medical practitioner whilst in her care for any normal childhood illness and to obtain dental care;

(b)If practicable the father provide the mother with 24 hours’ notice in writing of major decisions he proposes to make in relation to the health of the children (or any of them) and the mother respond in writing within 24 hours thereafter with her suggestions or expression of her agreement.

(c)The father take the mother’s views into account in making decisions in relation to the health of the children (or any of them);

(d)The father will be responsible for booking appointments with relevant health professionals and for giving them instructions;

(e)The mother can participate in any health care or treatment sessions if and when invited by the clinician to do so;

(f)The father will extend to the mother the opportunity to take the children to appointments if he makes those appointments during a period of time when the child or children are in her care pursuant to the Order made on 17 July 2019. If the mother does not agree to take, or cannot take, the children or child to the appointment she immediately notify the father and the father remains responsible for taking the children or child in question to the appointment which he makes;

(g)An appointment made by the father in relation to health treatment for the children, or any of them, takes precedence over the attendance of the children at school or any other event.

3.There be liberty to apply on short notice in relation to any difficulties that arise in relation to the day to day medical treatment of the children by a general practitioner or their dental treatment or treatment by any allied medical health professional.

IT IS FURTHER ORDERED BY CONSENT:

4.The final order made on 17 July 2019 be amended in the following manner:

3(c) From after June/July school holidays 2021: every week from start of school on Monday until before school on Wednesday.

[…]

3(g) For half of the June/July school holidays by agreement and if there is no agreement then for the second half in 2020 and each alternate year thereafter from the middle Sunday at 3.00pm until 9.00am on the last Sunday of the school holiday and for the first half in 2021 and each alternate year thereafter from the last day of school until the middle Sunday at 3.00 pm.

5.Within 14 days the father submit to the mother any passport application for any of the children which he seeks the mother sign pursuant to paragraph 34 of the Order made on 17 July 2019 and the mother execute those applications and return them to the father not less than 7 days after receipt by her.

BY CONSENT IT IS ORDERED THAT:

6.The father be responsible for enrolling such of the children as want to participate in football through the R Club save in the event that any child prefers to play soccer the father enrol him to play soccer instead of football.

IT IS FURTHER ORDERED THAT:

7.Otherwise all interim applications be dismissed and this matter be placed in the list of cases awaiting allocation to a judicial docket.

8.That pursuant to Sections 65DA(2) and 62B the particulars and 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 those particulars are included in these orders.

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 Boswell & Boswell 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).

EX TEMPORE REASONS FOR JUDGMENT

1. The father’s Initiating Application filed 7 May 2021 concerns the parties’ children X aged 12 years, Y aged 10 years and Z aged 9 years, and the father seeks both final and interim orders.

2. On 17 July 2019 I made very detailed final parenting orders which provided, inter alia, that from after the June/July school holidays in 2021 the parents share care of the children, the father have specific times on special days including Jewish religious holidays, for half school vacations and that, if any parenting application, including any contravention application, is made prior to 30 July 2021, that application may be listed before me by arrangement with my associate. It is pursuant to that Order that the father’s application was listed before me urgently on 20 May 2021.

3. On 19 May 2021 the Court received correspondence from the Department of Families Fairness and Housing (“DFF&H”) which is marked as Exhibit “C1”. It stated:

   I write this email in response to your request for information and to assist the court until a formal response to s69ZW order can be prepared by our South Division.

   I note that the last response to s69ZW order was provided by the department on 8 March 2017. Since that time, there have been three further reports to child protection which are detailed below.

   15 October 2018

   The report raised concerns regarding inappropriate physical discipline by the father, Mr Boswell, and an incident in which he slapped X, leaving a visible bruise. The case was progressed to an investigation, during which the children and parents were interviewed. Although the children disclosed that Mr Boswell gets angrier than their mother, Ms Boswell, and implements more restrictive discipline techniques, they did not disclose ongoing or extreme physical disciple.

   Child Protection spoke with both parents about appropriate discipline strategies.

   Protective concerns relating to physical, emotional and cumulative harm were substantiated in relation to X, given he sustained an injury as a result of Mr Boswell’s physical discipline.

   The case was closed as it was assessed that the level of risk to the children was not unacceptable.

   15 March 2021

   The report raised concerns regarding X presenting with concerning sexualised behaviours. Further concerns were reported regarding Ms Boswell’s response to these behaviours, in that she did not believe them to be of concern or that X required assistance.

   It was assessed that X was appropriately engaged with a school psychologist, who was working to address the reported behaviours.

   The case was closed at intake phase without an investigation.

   21 April 2021

   The report raised concerns regarding X no longer engaging with a school psychologist due to Ms Boswell withdrawing consent for same. It was further reported that X is no longer attending school due to concerns about the risk he may pose to other students.

   It was assessed that the reported information did not indicate a significant or immediate risk of harm in Ms Boswell’s care. Advice was provided by the department that X needs to resume his education and if that cannot occur at the school where he is currently enrolled, alternative options and supports need to be explored with the family.

   The case was closed at intake phase without an investigation.

4. The father seeks urgent interim orders including authority, to the exclusion of the mother, to engage the services of a psychologist, psychiatrist, paediatrician and/or other appropriately qualified person to perform assessments, or provide therapy or treatment, as required for the children, but particularly X (12 years old).

5. The matter was before me on 20 May 2021 to address the immediate issue of mental health support for the return of the oldest child, X, to G School, Suburb Q where he started high school this year. X had been excluded from school for misbehaviour and behaviour dangerous to himself and other students.  The father sought to re-engage Dr K, psychologist, to provide therapy to X and devise and support a plan to get X back to school.

6. Initially, the mother was not agreeable to re-engaging Dr K.  I was informed by Ms Rothschild, that the mother’s objection to Dr K is that Dr K disregarded a previous diagnosis by Dr L (paediatrician) of X as suffering anxiety rather than ADHD.  The mother also said X didn’t enjoy going to consultations with Dr K, and he did go to her for six months, but he wasn’t happy to go to her.  The mother suggested “a treater who has seen the couple […]for marriage counselling, and […] who also treats children.  His name is Mr M.  He’s a male, and my client thinks that it’s probably better for X to see a male, given the allegations in relation to what he’s saying to young girls, etcetera.”  

7. If Dr K was re-engaged, the mother sought some assurance that “Dr L be able to work with Dr K, that she should be working with him as opposed to undermining his diagnostics.”  The mother’s position is that a “full diagnostic screening” by Dr L in February 2020 settled once and for all the issue of whether the children (or any of them) have ADHD following which the children have been medicated “primarily for anxiety”.  As a result of X being excluded from personal attendance at school, Dr L has increased X’s anxiety medication.  The mother also stated “Dr B also assessed the children as having anxiety, primarily caused by – he said – post-traumatic stress from all of these family things going on.”   She continued “the child is ready to go back to school.  The meeting last week was quite productive.  We are looking at getting more support for X in school.  We are looking to work collaboratively with the school. The school are actually doing interventions for the bullying that the child was suffering, which increased his anxiety in the school environment.  The paediatrician is onside. [..] X is still seeing the school psychologist [Mr N], currently, on a weekly basis.  He does have support.  We will be looking to find a new psychologist for X, though, externally.  The previous psychologist [Dr K] was not willing to work under the direction of the paediatrician, and I was placed in a position where I had to choose between the psychologist or the paediatrician.  The paediatrician is considered an expert in his field.  He has five university degrees.  He does not have a personal relation with either parent.  He is objective. The father has never been excluded from any appointments.  He’s welcome to come. He is court ordered to pay for the appointments.  Because he doesn’t come, I do pay for them.”

8. The father informed me that on 14 April 2021 the School had advised the parents, in writing, that:

   “The only way X will be able to return is with a considered return-to-school plan. This [is] something that Dr K will take lead on and work with us all.  As discussed in the meeting, the sooner we as a team can achieve this, the sooner X returns to school.”

9. On 20 May 2021 I heard evidence from the children’s school, G School, from the head of the secondary school, Mr P, and the Interim Principal, Ms S.  Their evidence was transcribed.

10. X’s behaviour was described as follows:

    MR P:  He wasn’t settled at all. He joined secondary school [this year], and I think there was a list of six general concerns the school had, and what we presented to the parents.

    Throughout the first term in school itself, X’s anxiety has been very high. We’ve had a incident or two where he has climbed up a tree. We’ve had incidents where he would be hiding under a teacher’s desk, for example. There were a number of instances of fighting or victimising or bullying on both sides – the students to him and him to students. […] the teachers were writing incident reports two to three times a day, and the integration into secondary school has been far from settling and quite a difficult one for him. We’re concerned about him. If he returns to school, and it continues in this way – disengaging with his studies, the anxiety is still very high, there’s no plan from a child safety perspective – what we can and can’t do – comments and statements that he made towards other students – allegedly made towards other students, with other students and their parents, you know, stating their concern about what we were going to do to protect their children. So putting all those points together, that’s when we called that meeting – I think it was early April, before term 2 started – to actually make this plan.

    The purpose of that meeting to really put everything out on the table for everyone to hear. We had the school psychologist join us, we had Dr K join us, we had a letter from the paediatrician, and the purpose of that meeting was to talk about the concerns we have, hear from parents if they wanted to share bits of information, hear from from the mental health professionals, including both Dr K and Mr N, the school psychologist – and then to plan forward. And that was the stage – that was the time in which this idea came out that we should put together a full plan supported and backed by Dr K. She herself, you know, said that she was going to play quite – quite an integral part of that.

    The risk to other students were the comments he was making to them that were of a sexual nature, and child safety concerns within an all boys school. There was an email he sent to a Year 3 girl over at the girls’ school – where he wrote to her saying that he loved her and he wanted to make a family with her. This was quite unsettling for the Year 3 girl and her parents. There were comments made by other students and complaints received by their parents about statements X has made towards them and what – you know, right away, this puts a certain responsibility – or the school always has a duty of care and responsibility, but this kind of highlights and emphasises the point that – what are we doing, and what support are we ensuring that X is receiving to indeed protect those other children.

11. The father’s description of X’s behaviour as explained by the School was consistent with Mr P’s description.

12. I sought to clarify what the School considered was required to be done before X would be allowed back to school.  Mr P and Ms S confirmed that the School requires an extensive support plan which provides staff with strategies of how to deal with X’s behaviour on a day-to-day basis, such as when he misbehaves, staff know what to do, and that the parents have agreed to adopt that plan. So, if it’s necessary for X to be collected immediately from school, thn a parent will attend.  The School acknowledges the involvement of the paediatrician, Dr L, who is medicating the child, but has been told by Dr L that psychological support is an essential component of the child’s treatment.  The two psychologists who have been in the frame to date are Mr T, who is a part-time psychologist employed by the School for the purposes of the School.  He is a school psychologist or counsellor who speaks to and sees students in a triage capacity. He is not a therapeutic counsellor or a therapy resource that the School provides to children and parents.  The School has decided that X needs psychological support independently of anything that the School can offer, and at the moment, the only person who has been identified as that sort of psychologist is Dr K, who is a practitioner with whom the School has some familiarity and in whom the School has confidence.

13. The description of the school counsellor’s role by the head master was broadly consistent with the father’s understanding as addressed to me before I heard evidence from the School.  The mother’s description indicated that she believed that Mr N’s intervention was more therapeutic than the School considers is the case.

14. On 20 May 2021 I adjourned the proceedings to 11 June 2021 and made, inter alia, the following orders:

    4. IT IS REQUESTED THAT an 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 children by the next return date and in the meantime to:

    a. Cause subpoena to issue to G School so that the Proper Officer of the School is available to give evidence on the adjourned date in relation to X’s return to school;

    b. To cause a subpoena to issue to ensure Dr K is available to give evidence on the adjourned date.

    10. The mother file and serve any response and evidence in support by not later than 12 noon on 10 June 2021.

    11. The mother and father do all acts and things necessary to re-engage Dr K as treating psychologist for X for therapy and to devise and implement a back to school plan to be adopted between the parents and G School. For the purpose of Dr K’s role, the parents follow all reasonable recommendations and meet all reasonable requests of Dr K and this Order constitutes Dr K’s authority to deal with third parties in her capacity as psychologist for the child X.

    12. Until further order the mother and father be and are hereby mutually restrained from causing, permitting or suffering the child X to be taken to or consult with a psychologist or like health professional other than Dr K or Mr T until the adjourned date.

    13. Until further order the mother and father be and are hereby mutually restrained from causing, permitting or suffering the child X to be taken to or consult with a paediatrician or like health professional other than Dr L until the adjourned date.

15. On 16 June 2021 the father filed an amended Application in a Case and an affidavit in support and on 17 June 2021 the mother filed a Response to an Application in a Case and two affidavits in support.  The documents were either filed late or not in compliance with my Order on 20 May 2021 that the mother’s documents be filed by 10 June 2021.  I did not have time to read the documents for this hearing and advised the parties accordingly.

1. Today, I heard evidence from Dr K, the psychologist. The parties had a limited opportunity to cross-examine her.  I have ordered a transcript of Dr K’s evidence.

2. Dr K’s evidence was that since 20 May 2021, when the father commenced taking X to appointments with Dr K, the treatment has been accelerated and productive. Dr K works easily with the father and with X when X is in the father’s care. That is in contrast to working with the mother.

3. Dr K’s evidence was that as recently as 21 April 2021 and after meeting with the School, the mother withdrew her consent for Dr K to discuss X or the other children, but particularly X with anyone.

4. The court has been very much assisted by the evidence of Dr K. 

5. The father seeks an order that he have sole parental responsibility for the three children on an interim basis.  He is agreeable to orders which would require him to notify the mother of what proposals he has and to consult with her.  But ultimately, he seeks that the mother not be in a position to countermand his instruction or to interfere with his instructions to the therapists. This is for the purpose of the therapists being able to, he says, proceed with their therapy or treatment as they consider appropriate.

6. I am satisfied that Dr K’s evidence supports orders being made as sought by the father.  The Independent Children’s Lawyer supports the father’s application.  Indeed, the Independent Children’s Lawyer seeks an order that was somewhat broader than the one first contemplated by me which was going to be confined to the treatment for the psychologist or mental health professional.

7. The mother submits, through Ms Rothschild, that she is still prepared to work with Dr K. The mother refers to the fact that she communicated with Dr K immediately after the hearing on 20 May 2021 and provided Dr K with a copy of the Order made that day.  It was submitted on behalf of the mother that the mother will continue to work with Dr K, there are orders requiring the parents to cooperate with treatment by Dr K and, accordingly, there is no need for the father to have sole parental responsibility.

8. Whereas the mother maintains through her counsel that she is prepared to, “work with,” Dr K, even since 20 May 2021, there has been an instance where the mother has arguably not worked with or supported the therapeutic treatment of Dr K.  Dr K emailed an assessment form to the mother to complete in early June – on or about the first of June.  A similar assessment form was sent to the father.  The father duly completed the form and returned it.  The mother did not.  Indeed, the mother did not open the relevant email until after the court hearing commenced on 17 June 2021.  The mother said she had “missed” the email and, therefore, had not responded to the email, nor submitted responses for assessment.  That is an omission by the mother around medical care for X which is not acceptable.

9. Another instance raised by Dr K was that during sessions (which must have been prior to 20 May 2021), Dr K observed the behaviour of X to be somewhat extreme and worthy of noting and advising the school.  Dr K told the mother.  The mother said to Dr K that she did not think it would be appropriate for Dr K to report X’s behaviour to the school.  Dr K felt compromised in terms of telling the school those matters which she thought the school should know about and the mother’s requirements.

10. There was the following interchange with Dr K:

    HER HONOUR: Thank you, Dr K. Do you say that the father would be the parent from whom you would be most comfortable taking directions or instructions?

    DR K: For now, yes. I will say the short answer, yes. I will tell you the reason why, your Honour. For the last four sessions that we had, 23 May, 1 June, 8 June, 15 June, that all happened while Mr Boswell, the father, actually facilitated. In the matter of three sessions we got the boy back to school. We don’t – I didn’t have to deal with consents being pulled. I don’t have to deal with the assessment not being done. I can focus on my job, basically.

    MR EIDELSON: Just to clarify that, all of the sessions you’ve had since 20 May has been when the child has been with the father? Yes, because that’s the only time I could squeeze him in because my book is actually booked until August and I’m actually doing the family a favour of squeezing them in.

    HER HONOUR: If the mother was in – had any input into instructing you in relation to the therapy and treatment do you think that that would be disruptive to your treatment based on your previous experiences?

    DR K: No, no, no. I think that the father would listen, would actually go away, consider, and my dealing with Mr Boswell is that, even though he may not agree or he’s not understanding my rationale behind certain recommendations, he will actually get in contact and ask in a polite manner rather than actually putting in email accusing me, you know, doing certain things because I work in a very small community. My – I work really hard for my reputation and it is concerning, you know, when I do things, yes.

    HER HONOUR: Because I don’t think you understood my question? Yes.

    Do you say that at the moment it would be counterproductive to have the mother in charge of the therapy or engaging you?

    DR K: I don’t think it’s counterproductive per se, but what I’m actually saying is that somebody need to make a decision in terms of the children’s treatment, intervention, assessment. I can’t be actually working with both parents when they’re opinions are so drastically different. One would work with - - - 

    HER HONOUR: Can you only work with one parent at the moment?

    DR K: I don’t want to marginalise the parent and, as I said, that was reason why I pointed out if I being seen marginalise the mother my reputation in the community will be tarnished.

    MR EIDELSON: Putting your reputation aside, Dr - - -

    HER HONOUR:  Okay. Well, I don’t much worry about your reputation in the community either, but can you tell me whether or not you want an order that it is up to Mr Boswell to instruct you in relation to treatment of the children?  That would be a whole lot easier. I could do my job then.

11. The mother’s case in opposition to sole parental responsibility being given to the father, even on this interim and limited basis, is that it is essentially unnecessary because she is prepared to work with the therapists.  That may be the mother’s intention but, as her failure to complete the assessment questionnaire demonstrates, she is not necessarily committed or supportive. Notwithstanding that there is an injunction precluding the parents from interfering with Dr K’s treatment, Dr K is obviously concerned that the mother will slip back and into obstructive behaviour such as withdrawing her consent for Dr K to speak to anyone (as she did on 21 April 2021).

12. In assessing what is in X’s best interests, I must consider, and do, the ease with which necessary service providers, like Dr K, can fulfil their obligations to treat X.  On what I have heard to date the mother’s ability to interfere with treatment, even theoretically, is perceived by Dr K to be a real impediment.

13. Dr K presented today as a competent, compassionate and professional witness, who says she is unable to do her job if the mother is in a position to countermand or withdraw her consent at any time to certain treatments.

14. Dr K expressed a very clear and unambiguous picture of being able to proceed on an expedient and effective basis if the father is responsible for giving instructions in relation to medical treatment, and she is not in that position if the mother continues to have a capacity to countermand or limit the treatment. She said a number of times, “I just cannot do my job,” or words to that effect.

15. Counsel for the independent children’s lawyer asked Dr K about difficulties with her therapy for X. She responded:

    DR K: ‑‑‑I don’t think as simple. I think there are two levels there. My job is being interfered, basically. I can’t treat the children unless I know what I’m dealing with and often – so even paediatrician give diagnosis, psychologist still does their own assessment. That’s number 1 and number 2, if my recommended treatment pathway or recommendations put forward, people not agreeing and then subsequently I’m being accused of not being supportive of the children, not being in their best interests, subsequently consent is being removed. Look, I can’t get the job done.

16. Dr K referred to the fact that, historically, “I noticed from a clinical perspective is that the result and the responses coming from the mother is to reveal there is absolutely no issue with all three children.”  This speaks to a fundamental conflict between the mother and the father. If they cannot agree on the condition for which X needs treatment it is not surprising that they cannot agree on treatment.

17. Parental responsibility in relation to children means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[1] Equal shared parental responsibility relates to decision making about ‘major long term issues’, which is defined in s 4 of the Family Law Act 1975 (Cth) (“the Act”) as follows:-

    …issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:

    a)        the child’s education (both current and future); and

    b)        the child’s religious and cultural upbringing; and

    c)        the child’s health; and

    d)        the child’s name; and

    e)        changes to the child’s living arrangements that make it significantly more difficult for the children to spend time with a parent.

    [1] Family Law Act 1975 (Cth) s 61B.

18. Where two or more persons share parental responsibility, equally or in relation to any major long-term issue under a parenting order, they are required to make the decision jointly.[2]  The concept of shared parental responsibility carries with it the requirements to ‘consult the other parent in relation to the decision to be made about that issue’[3] and to ‘make a genuine effort to come to a joint decision about that issue’.[4]  These provisions mean that consultation and some discussion between the parties is required regarding major long-term decisions, for which parental responsibility is shared.  

    [2] Ibid s 65DAC(2).

    [3] Ibid s 65DAC(3)(a).

    [4] Ibid s 65DAC(3)(b).

19. Section 61DA of the Act provides that, when making a parenting order, the court must apply a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility[5].  However the presumption does not apply if, inter alia, the court is making an interim order and the court is satisfied that it would not be appropriate for the presumption to apply[6].

    [5] s 61DA(1)

    [6] S 61DA(3)

20. The Independent Children’s Lawyer, who today is represented by Mr Eidelson, makes the point that, on a rational basis, the parents should be able to abide orders for the continued care for the children by certain specified medical practitioners and health professionals without the need for there to be an alteration of shared parental responsibility.  However, the parents have not demonstrated that they can together act rationally, that they can interact sensibly in relation to matters involving their children, or that they act in accordance with normal expectations. Anything that they have to agree upon, perhaps otherwise than under the direct scrutiny of the court, they find difficult. The implications for the children are extremely serious, because it means that decisions that must be made in a timely and efficient way are not made in a timely and efficient way and that is adverse to their welfare.

21. In this case, the father seeks sole parental responsibility on an interim basis in relation to the children’s health, and in particular, treatment and therapy.  The final parenting orders which were made on 17 July 2019 provide in paragraph 2 that, until further order, the parties have equal shared parental responsibility.  The fact that the order was only expressed as an interim order for shared parental responsibility in July 2019, indicates to me that the parties did not accept that they had the capacity to cooperate as they need to if they have equal shared parental responsibility on an ongoing basis.

22. Nobody has advanced a case today where parental responsibility ought to be different in relation to one or more of the children.  We have dealt with the children as three children, and the Orders that I make effect all three children equally.

23. In this case, I am satisfied that it is not in the best interests of the children on an interim basis for parental responsibility for decisions relating to the mental health and paediatric needs of the children to be shared.

24. I am satisfied that parental responsibility needs to be vested, for the time being, in the father who will make sure that the children get the care that they need, as quickly as they need it.  It is that care that has resulted in X going back to school, as he has been.  Hopefully X will continue to improve and be accepted back as a student at that school for all regular school hours (he is currently excluded from an early morning class).  

25. I will extend the Order in relation to Dr K and the father’s responsibility for giving instructions to Dr K to Dr L, who is the paediatrician.  That is because Dr L’s status as the children’s paediatrician has in the past been used by the mother to countermand or limit the treatment of Dr K.  In particular, in relation to diagnosis.

26. There is also an emerging difficulty in relation to the youngest child, Z, which should be addressed rather than left to fester or to go untreated because of some dispute between the parents. 

27. I understand that an Order vesting parental responsibility in the father to the exclusion of the mother will come as a blow to the mother.  That is, it will be a matter of disappointment to her. She may well be disillusioned by it.  However, she will henceforth have to work under that regime until the court otherwise orders.  The mother should not blame the father or Dr K for the change in parental responsibility, it is an Order of the court which I am satisfied is in the best interest of the children.

28. I should also mention that I have not acceded to the application of the Independent Children’s Lawyer, for the father to sole parental responsibility in relation to all and any health matters which would cover all health professionals or allied health professionals, including general medical practitioners, dental care, physiotherapy, optometry and the like.  That is because based on what I have observed about children’s sport, I still hold out some small hope that the parties will start to work together in the future.  However, if it is necessary for the efficient delivery of the services to the children, I may expand the major long term decisions in respect of which sole parental responsibility relates.

29. The Independent Children’s Lawyer should send a copy of these reasons for decision to the School, DFFH, Dr K and Dr L.  I understand that the boys’ general medical practitioner is Dr V.  A copy should also be sent to Dr V.

30. Happily, the parents were able to agree on the children being enrolled in sport.  The father said that all boys would like to play football.  The father asserted that, historically, the mother has objected to the boys joining R Club because some children of less religious families are members.  This has meant that the children could not be enrolled.  It is too late for the boys to participate in teams this year but enrolments will open in the next few months for the 2022 season for football and soccer.

31. It was agreed that the father can enrol the children in football or soccer, depending on the preference of each child.

32. The children will be expected to participate in the sport in which they are enrolled each week during the season. The mother queried whether their participation ties her to Melbourne each weekend.  It does not. If the mother’s household leaves Melbourne for the weekend, the children will miss out on playing sport.  That is not so as to encourage the mother to spend all of her weekends with the children out of Melbourne but to recognise that the boys also need time with the mother.  However, if it became evident that the children routinely had commitments which defeated their desire for team sport, and one or both parents make an application for Orders in relation to attendance at team sport, the court will determine the issue on the evidence presented and consistently with the best interests of each child.

33. Finally, my indications of being able to make Orders in the future, should not be interpreted as a positive invitation.  If future issues arise over which agreement cannot be reached, the parties may consider appointing a parenting coordinator.  If the matter comes back before me, I would consider appointing a parenting co-ordinator. The court does not have a cohort of co-ordinators and I would need to be assisted by each parent and the Independent Children's Lawyer compiling a list of co-ordinators from which to choose with details of cost and availability. I apprehend that the next challenge will be X’s Barmitzvah.  The father’s application has been placed in the last of cases awaiting allocation to a judicial docket and will be assigned to a judge for hearing in due course.  The father’s Application Initiating Proceedings specifies the following final orders sought:

    1. The father Mr Boswell (“the father”) have sole parental responsibility for the children

    2. Paragraphs 3(a), 3(b) and 3(c) of the Final Order made on 17 July 2019 be discharged and replaced with [the children live with the father as follows]:

    a. Every alternate week from after school on Friday until before school on Wednesday.

    b. Every alternate week from before school on Monday until before school on Wednesday.

    3. Paragraph 3(g) of the Final Order made 17 July 2019 be discharged and replaced with:

    For half of the June/July school holidays by agreement and if there is no agreement then for the second half from the middle Friday at 3.00pm until the commencement of school.

    4. Paragraph 6 of the Final Order made on 17 July 2019 be discharged and replaced with:

    The children live with the mother as follows:

    a. Every alternate week from before school on Wednesday until before school on Monday.

    b. Every alternate week from before school on Wednesday until after school on Friday.

    5. Paragraphs 7(a), 7(b), 7(c), 7(d) and 7(e) of the Final Order made on 17 July 2019 be appended to the (above) replacement of paragraph 6 of the Final Order made on 17 July 2019, and paragraph 7 of the Final Order made on 17 July 2019 be discharged.cat

    6. Paragraph 10 of the Final Order made on 17 July 2019 be discharged and replaced with:

    The father by 1 December send to the mother a calendar for the next year and the mother respond thereto by not later than 20 December with any suggested alterations or disagreements thereto. At the commencement of the academic year, the father is authorised to provide the children’s school/s a copy of the calendar.

    7. Paragraph 12 of the Final Order made on 17 July 2019 be discharged and replaced with:

    From a child’s 12th birthday each parent be at liberty to provide the child with a mobile phone or smart device at their own expense. The parent with whom the children are living may limit access to the phone / device as deemed appropriate but must at least provide the children the phone / device and privacy from 5.30 pm to 6pm on weeknights for the purpose of communicating with the parent who provided it and their family.

    8. Paragraph 25 of the Final Order made on 17 July 2019 be discharged and replaced with:

    The mother does all acts and things necessary to ensure that each child attends for assessment, therapy or treatment upon a psychologist, psychiatrist, or other appropriately qualified person nominated by the father.

    9. Paragraph 28 of the Final Order made on 17 July 2019 be discharged and replaced with:

    In addition to the preceding paragraph, the mother does all acts and things necessary to ensure each child attends for treatment upon a paediatrician nominated by the father and do so at the father’s expense as to the non-rebatable professional costs.

    10. Paragraph 34 of the Final Order made on 17 July 2019 be discharged and replaced with:

    Without limiting the operation of the preceding paragraph [of the Final Order made on 17 July 2019], the father be authorised to sign any application form for a passport to issue for any child and any such passport be directed to issue to himself, and when issued the father provide a copy of the passport/s to the mother.

1. My understanding is that the mother has not yet filed a Response to the father’s Initiating Application. She should have done so. However, it would probably now be best for the parties await allocation of the matter to a judicial docket and the father consider then whether he still seeks the above orders or will file an Amended Initiating Application to which the mother should then respond.

2. If issues on which the parents cannot agree arise prior to the allocation of this matter to a judge’s docket, consideration may also be given to referral of the matter to a Family Dispute Conference convened by a Family Consultant and a Registrar prior to being listed for hearing before a judge.  If it would be of assistance, the Independent Children’s Lawyer can contact my Chambers and ask for the allocation of a Family Dispute Conference in those circumstances.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett .

Associate:

Dated:       25 June 2021