CHARLES & MENSAH

[2012] FamCA 289

FAMILY COURT OF AUSTRALIA

CHARLES & MENSAH [2012] FamCA 289

FAMILY LAW – CHILDREN – Details of health treatment of the child to be provided to the applicant father

APPLICANT: Mr Charles

RESPONDENT: Ms Mensah

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Danielle Webb Lawyer

FILE NUMBER: MLC 6231 of 2010

DATE DELIVERED: 21 March 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 21 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms J Brennan

SOLICITOR FOR THE RESPONDENT:	Victoria Legal Aid
COUNSEL FOR THE ICL:

SOLICITOR FOR THE ICL Ms Danielle Webb

Orders

1. That the husband’s time spent on the weekend of 6 and 7 April 2012 pursuant to the orders of 29 November 2011 shall occur on Sunday 8 April 2012 from 9.30am until 5.00pm (in lieu of Friday 4.30pm to 6.00pm and Saturday 10.00am to 4.00pm).

2. That in the event that the child J is unable to attend for spend time periods with the husband, including for ill-health, then make-up time shall occur on the Sunday immediately following, save that in the event that the child remains unable to attend on that Sunday, make-up time shall occur on the Sunday of the following weekend, and changeover shall occur at the B Police Station.

3. That the child J CHARLES born … June 2010 shall attend the E Medical Centre, B Shopping Centre.

4. That the wife shall sign all such documents and do all things necessary to authorise the medical staff at the B Medical Centre to speak with the husband in relation to health issues affecting J.

5. That the mother request and use her best endeavours to ensure that medical practitioners completing medical certificates provide a description of the child’s condition in such certificate and in the event that a medical practitioner writes in the communication book such communication be placed on the medical centre letterhead and attached to the communication book.

6. That the Independent Children's Lawyer shall forward a copy of these orders to the B Medical Centre together with an explanatory letter.

7. That otherwise all interim applications and responses are dismissed.

8. That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

9. That my Reasons for Judgment given this day shall be transcribed, retained on the court file and made available to the parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Charles & Mensah has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6231 of 2010

Mr Charles

Applicant

And

Ms Mensah

Respondent

REASONS FOR JUDGMENT

1. Mr Charles (“the father”) and Ms Mensah (“the mother”) have parenting issues before the Court.  I have dealt with them previously.

2. Today, I have the father’s application, filed on 9 March 2012, supported by his affidavit filed on the same day, and the mother’s response filed 16 March 2012 with her affidavit filed on the same day.

3. I last dealt with the parties on 28 November 2011.  On that day, I made orders for the father to spend time with little J, who is now about 20 months old.  He was to spend time with her each Saturday and Friday with changeovers to take place at C Contact Centre.  I made other arrangements for the Christmas period, and orders about a range of matters, including J’s name and Watch List orders.  Otherwise, I ordered that the parties attend Victoria Legal Aid’s Round Table Dispute Management service and that the matter then return to the Registrar, once there was an updated Family Report.

4. The matters that the father raised in his application were as follows. First, he is concerned that when he filed his application he had received no date for the round table conference. Fortunately, since then, Victoria Legal Aid has the matter properly in train, and shortly the parties are to be advised of the date for the conference.  He is satisfied with that, because that is all that he was trying to ensure occurred. 

5. The father also sought the removal of the ICL, complaining that she had failed to respond to correspondence from him, specifically in relation to the round table conference.

6. Ms Webb has explained today that amongst copious correspondence and the weight of work, she quite probably did not respond to a couple of those letters.  She understands that it is important that even though the Victorian Legal Aid Round Table Conference was not specifically in her hands, a brief reply to Mr Charles would have been helpful.  On that basis, the father accepts that she shall continue as the ICL and I have no difficulty at all with that.

7. The next issue the father raised was in relation to health records for J. He complained that, for example, one medical certificate he received simply said the child had “a medical condition”, and I understand that that is not a helpful way of conveying information to him.  He is also concerned because she has apparently been diagnosed with asthma.  I think the mother has done her best to have a doctor draw diagrams and write information in the communication book about the asthma and the treatment for it, but I can well understand that the father would want to have some information or more information directly from the doctor.

8. The discussion arrived at the following, which will be written into an order by one of the lawyers in the draft minutes.  It was that J will attend the E Medical Centre in B Shopping Centre, and the mother will specifically authorise the medical staff at that clinic to speak to the father about any treatment of J.  If she includes any letter or information from a doctor in the communication book, it should be on the doctor’s letterhead.  She should request more information than just “medical condition”, if the child is not well or is not well and unavailable for time with her father.  The mother’s solicitor should forward a copy of these orders to the medical centre with a letter explaining that the doctors should deal with the father, as well as the mother, as the other qualified parent.

9. There is an issue then about changeovers.  The father suggests that the family day care person, where J spends some time during the week, would be a suitable person to conduct changeovers.  The mother says that she is not willing to do so.  The ICL will check with that person.  If she consents, it may be that it is appropriate, subject to any argument.  If she does not consent, then that is the end of the matter, I cannot force her.

10. The father raised the issue of having missed out, he says, on about 15% of his time under the orders with J.  He wants make up time.  Although there is some dispute as to how much time he has missed out on, there does appear to be some common ground that the mother has been advised that she does not need to make up time with the child if the child has been ill and unable to attend. I have made it clear that the time should be made up, and I think on balance there needs to be something in the order for certainty about that.  What has been arrived at is that any time that the child misses with the father will be made up on the very next Sunday, with the changeover at B Police Station.

11. Otherwise, there was the issue of Easter.  It has been agreed that for the Easter holiday period, which starts on Good Friday on 6 April, the father will forego Friday and Saturday with J, but will spend seven and a half hours with her on Easter Sunday.  When counsel writes out the orders, a start and finish time can be included.

12. The only other issue raised was raised on behalf of the mother.  It was that she is now having driving lessons on a Friday afternoon.  They potentially interfere with the Friday arrangement.  I have made it clear that in the interim, I want to change these orders as little as possible.  She should change her driving lesson to facilitate the contact, rather than the other way round, so the orders will stay as they are.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 21 March 2012.

Associate: 

Date:  21 March 2012