Clough and Light

[2016] FCCA 2983

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLOUGH & LIGHT [2016] FCCA 2983

Catchwords:
FAMILY LAW – Father primary carer of child aged 3 – father suffered one epileptic fit – father not re-partnered and supervised time impractical on a live-with arrangement – balancing the risk of harm to child from possible further epileptic fit of father and being separated from her primary carer – greater harm being separated from her father – risk of further fit a possibility only no requirement for supervision.

Legislation:

Family Law Act 1975

Applicant: MS CLOUGH

Respondent: MR LIGHT

File Number: SYC 3408 of 2016

Judgment of: Judge Henderson

Hearing date: 7 November 2016

Date of Last Submission: 7 November 2016

Delivered at: Sydney

Delivered on: 11 November 2016

REPRESENTATION

Counsel for the Applicant: Ms Lawson

Solicitors for the Applicant: Southern Waters Legal

Counsel for the Respondent: Mr Sperling

Solicitors for the Respondent: Taylor & Scott Lawyers

ORDERS

1. All prior parenting orders discharged.

2. The child X born (omitted) 2013 (“the child”) live with the mother when not living with father.

3. Commencing 10 November 2016 and continuing each alternate week thereafter, the child is to live with father from 9.00am Thursday until before 6.00pm Friday and at such time as agreed.

4. Commencing 17 November 2016 and continuing each alternate week thereafter, the child is to live with the father from 9.00am Thursday until the commencement of pre-school on Monday.

5. The father is restrained from driving or operating a car or boat or any machinery whilst the child is in his care.

6. The mother and father are restrained from using illicit drugs or consuming alcohol whilst the child is in their care.

7. The father must follow all treatment plans recommended to him by a medical or health practitioner.

8. The father must inform the mother if he has any seizures or health issues.

9. The father is to provide authorisation for the mother to speak to any of his healthcare providers.

10. Both parties are restrained from:

11. speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion the child’s hearing; and/or

12. discussing any proceedings between the parents in the presence or hearing of the child or permitting any other person to do so.

13. Leave be granted to both parties to seek to have this matter re-listed if necessary.

14. The proceedings be adjourned to 11 May 2017 at 9.30am to determine the type of report required and for interim arrangements to be trialled.

IT IS NOTED that publication of this judgment under the pseudonym Clough & Light is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 3408 of 2016

MS CLOUGH

Applicant

And

MR LIGHT

Respondent

REASONS FOR JUDGMENT

1. The matter of Clough & Light is the father’s application to vary the current parenting arrangements for the party’s daughter, X, born (omitted) 2003. He seeks that the order for supervision be discharged and that his time effectively revert to the time regime that was in place by agreement between the parents set out in the consent orders dated 10 June 2016. The orders of 10 June 2016 were that:

   a)the parents to have equal shared parental responsibility;

   b)the child to live with her father;

   c)the child to spend time with her mother in week 1 from 3 pm Friday to 9 am Monday morning; in week 2, from Wednesday 3 to 7pm Friday and each alternate week thereafter.

   d)By consent the orders were that the child lived predominately with her father, but spent time with her mother. X is currently just over three years of age.

2. These consent orders were varied by me on 13 September 2016 to provide that whilst the child was in her father’s care his time with her was to be supervised by Ms P. This was due to an incident which occurred with the father in July 2016 where he suffered effectively an epileptic seizure. This was the first and only documented seizure he has suffered and concerns arose in relation to him having full-time care of a young child in circumstances of that event having occurred.

3. The event happened on 16 July 2016. The child was not with her father at the time, but the father was concerned, because he was calling out for the child. The father had been the child’s primary carer since separation in May 2015. In part this was due to him suffering an injury at work and presently not working and thus being available to care for the child on a long-term basis.

4. Mr Sperling of counsel acted for the father, and Ms Lawson of counsel for the mother.

5. For the father I read:

   a)Father’s affidavit of 31 October 2016;

   b)Affidavit of Dr T, a neurologist, dated 4 November 2016; and

   c)Father’s case outline.

6. For the mother:

   a)Mother’s affidavits of 7 November 2016 and 28 October 2016; and

   b)Mother’s case outline.

7. The mother tendered three exhibits:

   a)Exhibit one: Notes of the (omitted) area health service in relation to the father’s admission to hospital in July 2016;

   b)Exhibit two: An aide memoire in relation to the important aspects of the subpoenaed material; and

   c)Exhibit 3: A urine test provided by the father and carried out on 11 October 2016 showing that, although there may have been a sample dilution there was no detection for any drugs at all, be they prescription or non-prescription drugs.

8. I have read the child dispute memorandum dated 11 July 2016, and I have heard the submissions from each counsel.

9. The mother says this:

   The Father’s time must be supervised because of the age of our daughter and the uncertainty as to whether or when the father will have another seizure.

10. I accept the evidence is that he may or may not have another seizure.

11. The reality is that the father has had very little time with the child. Or should I say the child has had very little time with her father because of the difficulty the father has had in having people supervise time given the extensive nature of the time the child is in his care. That is X lives with her father predominately.

12. Secondly the mother says the lack of a consistent supervisor, has resulted in a series of supervisors at short notice. Some have left the father and child early, some have not turned up when they said and Ms P will now not return the father’s calls. That the mother and child cannot be assured the father will be able to have X in his care because of this difficulty with the supervision and thus the child should primarily live with her mother and have limited supervised time with the father so that there is certainty for the mother and child. This limitation should continue until his health prognosis is more certain.

13. Had the father not had the seizure on July 2016, the child would be living with him in accordance with the consent arrangement the parties entered into in June 2016. I accept the father has significant difficulty obtaining supervision. The father has not re-partnered. He put nine potential supervisors’ names forward to the court at this hearing when he knew that this was the very issue before me on the day. On the day, and he still was unable to tell the court who, what and when would be doing the supervision. There is a degree of chaos in the father’s life in trying to organise this supervision, because he lives on his own. If he had a partner these difficulties would not be attendant. If he had parents able to assist him matters may be calmer but that is not the situation. He has a father, but his father works.

14. As I see the evidence, the current consent orders cannot work if the father is only to have supervised time with the child, because he simply – and I make no criticism of him – cannot tell me but more importantly the mother who is going to be supervising, and he really cannot rely on people to live his life for him. Such an arrangement of having a child living in the primary care of a parent where that time has to be supervised and the absence of a grandparent being able to live with the parent or a partner living with the parent is not practical, realistic or appropriate, and the mother and child would be continually subject to uncertainty.

15. The real issue for me, however, is whether the father’s time ought continue to be supervised at all times or at all. If I find that it should continue to be supervised, his time must be limited, not because he is a risk to the child or he has a poor relationship with the child – on the contrary – she has an attached and secure relationship with the father – but because of the chaos this order creates for the father in trying to have a supervisor on all occasions. The father is not a risk to this child. Otherwise, if he had been the mother would not have entered into the consent orders in June 2016. He is a competent parent, and as I said, his child is attached to him, as she is to her mother.

16. At the child dispute memorandum interview both parents said they were not concerned about their daughter’s safety in either of the parents’ care, and they both admitted each was a good parent. That memo was produced – and the interviews had – about a month prior to the father’s seizure. Although these parents have each had a history of illicit drug use and being party people, those circumstances appear to have changed, and the parents certainly are on the evidence before me much more child-focussed than perhaps they have been in the past.

17. Fortunately I have some medical evidence about the father’s prognosis, diagnosis and treatment. His treating neurologist is Dr G. I accept Dr G would not give the father a report for these proceedings because of the following. I had by order permitted the mother to speak to Dr G to find out the father’s condition. She did that. Dr G and the mother had a conversation about the father’s progress, diagnosis and treatment. Dr G then felt compelled to contact her insurers about this issue, and that is set out in paragraph 20 of the father’s affidavit. Dr G told the father she could not do a report for medico-legal purposes, because she was his treating doctor, and so she would not. I accept that she had referred the father to the neurological service at (omitted) Hospital a Dr S and that although he has made contact with the hospital he is still awaiting confirmation of an appointment. Thus in circumstances where he knew his epilepsy was a vital issue in this matter he obtained a report from a specialist neurologist, Dr T. I make no criticism of the father for in some way shopping around or an expert. He did the absolute best he could. This is a vital issue.

18. Going to the subpoena material and reading that subpoena material with Dr T’s report and the father’s self-reporting to Dr T. Dr T had both of Dr G’ report of 10 October 2016 and 6 October 2016. 10 October 2016 was a report by Dr G to Dr S at the (omitted) Hospital referring the father to that unit, and 6 October 2016 was the letter to Dr M, the father’s GP, Dr T, also had a report of 4 August 2016 from Dr G to Dr M. He really had all the reports that the father had received from Dr G, and they were included in his report.

19. Dr T also had almost all of the notes or significant information from the (omitted) Sydney area health service which had been provided to him by the father’s solicitors. They included a referral from the (omitted) family practice dated 25 October 2016, New South Wales health discharge referral summary, 17 July 2016, CT brain scan report from Dr F, 26 July 2016, letter from Dr G to Dr M, 4 August 2016, letter from Dr G to Dr M, of 6 October 2016 and the report to Dr S by Dr G of 10 August 2016. These documents were read by Dr T and formed part of his expert’s report.

20. The 6 October 2016 report from Dr G reports this:

    That the father has been doing a lot of reading and seems to understand the underlying implications of his diagnosis, he is aware his best chance of remaining seizure-free is to remain on anti-epileptic medication, he has made some life-style changes and is avoiding sleep deprivation and other triggers, for example alcohol, although he is not normally much of a drinker, he has not been driving, confirms that he has received notification from the Roads and Traffic that his licence has been temporarily suspended due to his epileptic seizure.

21. I accept the father has had no recurrence of the events that occurred on 16 July 2016 or even of an event which occurred on 8 August 2016. He says he woke up feeling that someone was lurking around the corner, rocks were moved in his fishpond and he had called out in the night because his daughter told him he had been screaming out.

22. The report of 4 August 2016 of Dr G to Dr M refers is the letter in which Dr G said:

    That the father will be unable to drive for 12 months, that Epilim, the antipsychotic or anticonvulsive medication he was on had been changed to Keppra and that she Dr G believed, that tramadol, a drug the father takes due to his back injury, would have been one of the triggers for the seizure in July and she noted he was also taking diazepam as well for his back pain.

23. The discharge notes from the (omitted) hospital on July 2016 were read by Dr G, but he did not read the ambulance report of that same date. That ambulance report is at paragraph 9 of the (omitted) hospital notes at tab 9 and says as follows:

    Seizure. Walking around looking dazed, confused, unsteady. Friends said they had been fishing all night, just on their way home, the father was driving the vehicle, just about the reverse into the drive when he noticed his friend’s body got stiff, he was unresponsive for approximately 30 to 40 seconds, woke up confused, agitated and restless.

24. The ambos noted “appear drug-affected”. I take no notice of that observation he had just had a seizure and there is no evidence to support that observation. He told the ambulance officers that he was on tramadol, had three this morning and just one before the episode. That is earlier in the morning I have assumed but am unsure when “morning” means. On diazepam, but he had only had one earlier this morning. These are medications prescribed for his back injury. Says he had some speed two days ago, and the ambulance officer thought he was holding back information. This is the only document Dr T did not read.

25. The toxicology report in the notes revealed that the father had amphetamines in his system, consistent with evidence of speed and consistent with his use of benzodiazepam. He was told on discharge from (hospital omitted) to attempt to reduce his intake of tramadol and not drive for six months. The father said he had been sleeping very poorly before this seizure. He had three drinks of Scotch that night because it was very cold, and he had not had diazepam since early the morning before and had only had it the morning before he went fishing; he did not have it with him at fishing.

26. There is a report in the notes that the father said he was binge-drinking. He denies this to be true and I cannot make any finding of what that means. Three drinks of Scotch may be considered binge-drinking by some medical practitioners and not for others. I do not know. The father was open, he had drunk Scotch, he rarely drinks, but he drank it that night because it was cold and he was out fishing with his friend.

27. The father had been unable to reduce his tramadol and diazepam doses. However, at paragraph 22 of his affidavit, he says he is now taking half the tramadol dose that he was taking before this episode occurred i.e. 1.5 tablets a day and not 3. However, he is still taking at least 5mg of diazepam at night and sometimes 10mg.

28. The father says this:

    Since my seizure on 16 July, I have not experienced any further seizures and have taken the following steps to minimise the risk of reoccurrence on advice from Dr G: I have not drunk alcohol; I have not gone fishing overnight or gone without a full night’s sleep; I reduced my intake of tramadol and my pain medication from three tablets a day to one to one and a half.

29. It is interesting Dr G was of the view that the tramadol withdrawal was the problem. However, it is clear from the ambulance notes he had had tramadol. Dr T disagrees with that diagnosis. He has discounted that tramadol withdrawal was a problem, for he said at page 3 of his report:

    Given the time that the father had been on tramadol and his use of that drug, if this was the cause of his seizures this would have occurred 24 hours after he first took the medication. There is no such reporting or medical report that this happened to the father. Therefore, tramadol or withdrawal of tramadol or taking of tramadol was not a trigger for this father in this particular instance.

30. Dr T refers to and discusses the studies he has relied upon to support his diagnosis. The studies he concludes reveals that the neurotoxicity of tramadol commonly manifests as generalised tonic clonic seizures within 24 hours after intake. This was not the case here, therefore that drug it use or lack of use is not the problem. However diazepam withdrawal is the issue for Dr T.

31. At page 40 of his report, he says:

    The father had not taken diazepam for 24 hours (it was probably about 16 to 18 hours) prior to the seizure and was at risk of a diazepam withdrawal in those circumstances.

32. As I have said, it was not quite 24 hours he was without this drug on his own evidence however it was a long period. Yet benzodiazepam was found in his bloods. The ambulance report could mean he took diazepam in the morning of the night fishing trip. However, given he regularly takes diazepam at night and he had not had any that night on his own evidence and did not take any during the day he did not have the usual amount of this drug in his system. This would, it would appear to be consistent with Dr T reporting that he had not had the drug for about 24 hours.

33. Dr T concludes that his seizure was due to acute diazepam withdrawal, the three drinks of Scotch and sleep deprivation. That the father can reduce his diazepam dosage but he cannot withdraw from it. Dr T said the father needs to reduce his diazepam intake. The father is still taking about 5mg, sometimes 10mg, of Valium at night and that has not decreased.

34. It is clear that the father was up all night fishing. He was clearly sleep-deprived. He had been drinking alcohol, something he does not do. He did not have the usual amount of diazepam in his system that he has been used to for some time and both Dr G and Dr T each say that these matters are triggers which could result in a seizure: alcohol, withdrawal of drugs, and sleep deprivation.

35. The mother spoke to Dr G and that is reported at paragraph 48 of her affidavit. In that paragraph, she says:

    I attended Mr Light’s appointment with Dr G, and she asked me to wait. I spoke to her after that.

36. The doctor said to me Mr Light has a form of temporal epilepsy which could be triggered by a number of events including sleep deprivation and the use of drugs or alcohol.

37. He will be required to take medication for the rest of his life.

38. I cannot predict when he will next suffer a seizure, how often it may happen. Some suffer; some do not.

39. The next 12 months will tell us whether the condition will stabilise from medication.

40. Mr Light is not to be left alone with X, particularly if he is driving or using a boat, as a safety measure.

41. He is not allowed to drive for 12 months, and his licence is suspended.

42. There are risks that the medication Mr Light is taking has side effects, an unpredictability to Mr. Light’s condition that could happen at any time.

43. If he is alone with his child, it’s crucial she knows what to do if he has a seizure. To minimise risks, do not have the bath water at a certain height.

44. The father can shower the child having a bath is not necessary. Now, I accept, despite what the mother tells me and what the mother believes, the father does not drive with the child. The mother believes the father drives. I cannot make a finding in relation to that issue on an interim basis. However I am satisfied he does not drive with his child.

1. He has done some foolish things post his seizure, however. On one occasion when the mother came to collect the child, he was standing at the front yard and the child was playing in the car, and this caused the mother to believe he and the child had been driving. It was a foolish thing to do, and it was not an appropriate action to have taken because all it did was highlight the mother’s concerns. However, I have no doubt that the father does not drive in the car with his three year old child. He talks about walking to and from parks and the like and one of the problems for him in relation to supervisors is because he does not drive he cannot collect them and they cannot come to him.

2. The seizure happened four months ago, and I accept a further event could occur but it has not. He has only had one other event where he felt strange and odd and that is all that has happened at that time in August 2016. The father is well aware of the triggers that led to him having that seizure in July 2016 and has taken all the advice on board and is informing himself in relation to his condition and following the advice of his various specialists.

3. What I am tasked to do here is balance this child’s right to a relationship with her father and obtain the benefit of that meaningful relationship with him, and the risk to her in his care. There is clearly some risk to the child in the father’s care due to the possibility of another seizure occurring randomly. However, as I see it, that risk is minimised because the father is well aware of the triggers which resulted in the seizure in July 2016. He had been all night fishing, had drunk alcohol and had not had his usual dosage of diazepam.

4. This child is young. She is only three years and (omitted). However she has been living with her father since 2015, effectively, and only because of this seizure have the arrangements had to change. I accept she cannot live with her father if the time with him is to be supervised. The incident in July 2016 appears to have been quickly over. However, as I have said the father is well aware of the triggers that caused that event to occur and is carrying out the recommendations made by his doctors.

5. I accept he would not risk his daughter’s safety by driving with her in the car, and he does not need to bathe the child. He can shower her if that is a concern for the doctor. I do see a risk of the child alone with her father in the day and in the night because of the random nature of a seizure he may or may not have. However, the question for me is: is that risk sufficient to outweigh this child’s right to a meaningful relationship with her father and for her to be restored to his care as was agreed between the parents in Court this year and, effectively, since separation in 2015?

6. I do not doubt what the mother says that Dr G told her about the father’s condition, and they are all the negatives. However, I am sure there are some positives, but they have not been discussed. I do not discount what the mother says Dr G said to her. I am most concerned that the emotional and psychological risk to X with her having such limited time with her father or it being supervised is a greater risk of harm to the child than the possibility – and that is the highest it could be – of another seizure. It is not likelihood. It is not a probability. It is a possibility and it may never happen. That possible risk has been minimised because the father himself tells me the triggers and he is well aware of them: alcohol, sleep deprivation, use of drugs, and withdrawal of prescribed medication such as diazepam.

7. The father is now taking care of himself, and he must do so to give himself the best chance for no further attacks.

8. Looking at the Act, this child benefits from a meaningful relationship with each of her parents. Both parents have alleged in the past they have used illicit drugs and perhaps have behaved poorly in the child’s care. However, that behaviour seems to have reduced.

9. The child is clearly attached to both her parents. However, she has lived in the primary care of her father since separation in 2015. There would be a significant impact on this child of a change to her now living primarily with her mother and not with her father. This change, I see, may have the most negative consequence for the child rather than the prospect of a possible seizure of the father whilst the child is in his care. I agree that the child needs a regular pattern of time with both her parents, and each parent need to know where she is on each occasion.

10. I have formed the view today that the father’s time is no longer required to be supervised. I have formed the view that, consistent with my orders in September 2016, the child should attend day care Monday, Tuesday, Wednesday and she will be in her mother’s care on those days as her mother works. On Thursday and Friday of each week, she will be in her father’s care. On the alternate weekends the father’s time will extend to the commencement of day care on Monday morning.

11. These orders provide for a sharing of the child’s care – something she is used to – significant and substantial time in each of the parent’s care, time at the preschool and kindergarten to allow her to socialise with other children and will ensure that the child has overnight time, weekend time with each of her parents.

12. I find these are the orders in the child’s best interest

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date:  17 November 2016