CORBYN & MONDAY
[2019] FamCA 175
•26 March 2019
FAMILY COURT OF AUSTRALIA
| CORBYN & MONDAY | [2019] FamCA 175 |
| FAMILY LAW – CHILDREN – Parental responsibility – Where the mother seeks sole parental responsibility with respect to the child’s dental treatment but equal shared parental responsibility otherwise – Where the father seeks that the parties have equal shared parental responsibility – Where the dental treatment required for the child was significant – Where the father did not attend to the child’s dental needs while she was in his sole care – Where the father assumed dental treatment was managed by the school – orders made. |
| Family Law Act 1975 (Cth) ss 60CA, 60CC, 60CC(2), 60CC(3) |
| APPLICANT: | Ms Corbyn |
| RESPONDENT: | Mr Monday |
| FILE NUMBER: | ADC | 251 | of | 2018 |
| DATE DELIVERED: | 26 March 2019 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 18 March 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Hemsley |
| SOLICITOR FOR THE APPLICANT: | SE Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Praolini |
| SOLICITOR FOR THE RESPONDENT: | Angela Ferdinandy Solicitor |
Orders
That the parties have equal shared parental responsibility for X born … 2011 (“the child”) but that the applicant mother have sole parental responsibility for the child’s dental care PROVIDED that she keep the respondent father informed as to the child’s dental treatment as may be required from time to time.
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 Corbyn & Monday 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 ADELAIDE |
FILE NUMBER: ADC 251 of 2018
| Ms Corbyn |
Applicant
And
| Mr Monday |
Respondent
REASONS FOR JUDGMENT
Introduction
By orders made before Judge Kelly on 7 November 2018, Ms Corbyn (“the applicant”) and Mr Monday (“the respondent”) substantially resolved the future parenting arrangements for X born in 2011 (“the child”).
The orders provided for the child to live with each of the parties on a shared care basis.
The parties were not able to agree parental responsibility for the child’s medical and in particular her dental health.
Given that the parameters of the dispute were narrow, it was agreed that following the filing of short and targeted affidavits concerning the apparent inability of the parties to reach agreement surrounding the child’s medical and/or dental treatment, Judge Kelly listed the final issues for a determination on the papers.
Her Honour’s absence from the Registry resulted in the proceedings being listed before me.
Outstanding issues
The applicant seeks the following final orders in relation to the child’s medical and dental treatment:-
In respect to [the child’s] medical treatment [the applicant] be able to proceed with medical or dental care as recommended by a suitably qualified medical professional and ensure that she keeps [the respondent] updated to same.
The proposed order is opposed by the respondent. He seeks that the parties should have equal shared parental responsibility that would require both parties to be invested with all aspects of the child’s care.
Equal shared parental responsibility is not opposed by the applicant, but she considers she should have sole parental responsibility in respect of the child’s medical and/or dental treatment.
The applicant considers that the parties have not been able to reach agreement on the child’s dental care, asthma management and the continuation of the child’s psychological therapy and counselling pursuant to a Mental Health Plan. The lack of consensus is considered by the applicant to be adverse to the child’s best interests.
Background
The parties were in a relationship between 2010 and 2012. The child was born in 2011.
The child remained in the applicant’s primary care until 2014. As a result of Families SA (“the Department”) intervention the child was placed in the respondent’s care.
Each of the parties make serious allegations against the other. The respondent alleges that the applicant was responsible for an arson attack on his house in 2014. He asserts that she perpetrated serious family violence and that whilst he concedes that the parties consumed cannabis and methamphetamines during their period of cohabitation, he complained that the applicant prioritised her drug use over the proper care arrangements for the child.
Annexures “A” and “B” to the respondent’s affidavit of 12 February 2018 corroborates the assessment of the Department that the applicant’s children (including the subject child) “need to be removed from [the applicant’s] care as [the applicant] has continued to demonstrate she is not capable to respond appropriately to the children’s care needs while addressing the child protection concerns that have been present during the last 10 months”.
The Department assessed that the child would be safe in the respondent’s care.
As an indication of the Department’s concerns, the Safety Plan required that the police must be immediately contacted if the applicant were to be sighted in the child’s vicinity.
The applicant submits that she ceased all methamphetamine use in 2014 and but for some limited continued cannabis use, there are no drug tests that have evidenced her use of methamphetamine.
Over time the parties reached some agreement which resulted in the respondent facilitating regular weekend time between the child and the applicant, although there were times when the respondent unilaterally cancelled the applicant’s time.
The parties agreed that the child would spend increasingly more time with the applicant. Whilst there was general agreement between them, the applicant highlights concerns she held as to the ability of the respondent to look after the child’s health needs. In particular, the parties were not able to agree appropriate head lice treatment for the child.
In January 2018 the child was retained by the applicant following her allegation that the respondent presented at a handover at a police station affected by methamphetamines, but in any event displaying overt angry and aggressive behaviour.
The respondent does not concede that there was any basis for the applicant’s retention of the child on that occasion.
The applicant filed proceedings on 24 January 2018. The respondent filed a Response on 12 February 2018.
Notwithstanding the serious allegations that each make against the other, the parties generally conceded that the child is strongly attached to each of them and enjoys a good relationship with them.
The respondent notes that the child is often reluctant to leave one parent’s home for the other.
The parties have largely resolved their differences and the extent of their agreement is the subject of the extensive consent orders.
Health issues affecting the child
The final orders provide for the parties to facilitate the child attending at either of two specified medical clinics.
Paragraph [10] provides that:-
The parties shall have the right to communicate with and obtain any information concerning the said child’s physical and mental health and welfare directly from any general medical practitioner, specialist medical practitioner, psychologist, psychiatrist, other health professional, counsellor and/or social worker.
The applicant was concerned as to the general state of the child’s dental health when she came into her care in January 2018.
The applicant asserts that the child told her she had never been to a dentist and upon a dental examination and assessment by the Dental Service there was a diagnosis that the child suffered from serious and severe tooth decay.
The treatment plan involved extraction of teeth where the decay was rampant, and for those teeth that could be preserved, they required the application of a stainless steel crown.
The respondent accepts that he was initially resistant to the treatment but eventually conceded that the proposed program of dental management was appropriate.
The applicant’s concern is not simply that the parties had a disagreement, but that the respondent was totally opposed to the treatment apparently relying on the advice that he had received via a person purporting to be an orthodontist in Country A that the proposed treatment by the Dental Service may expose the child to heavy metal poisoning.
The respondent was urged to seek advice from a private dentist and if he failed to do so then the applicant was at liberty to proceed with the dental care treatment plan as recommended by the Dental Service.
The respondent’s response to the applicant’s allegations is at best superficial.
At [6] of his Affidavit filed 14 March 2019 he submits that he “mistakenly assumed that [the child] will be provided with dental care, as I had been, at school”.
He considered that because the child did not complain about tooth pain he did not take her to see a dentist.
The respondent concedes that almost every tooth was adversely impacted by dental decay and required substantial treatment. That state of affairs did not develop of recent date but rather, was indicative of the respondent’s poor attention to the child’s dental hygiene. By reference to the report of the dental surgeon, it is reasonable to find that even the most cursory inspection of the child’s mouth would have revealed substantial problems.
The respondent now concedes that he had made a mistake and that it was not appropriate to leave the child’s dental care to the school where no dental program existed.
I do not consider that the gravamen of the applicant’s application is the respondent’s conduct in apparently opposing the dental treatment required by the child but rather, in his neglect of the child’s dental hygiene over the period that she was in his primary care.
The applicant also seeks that she have sole parental responsibility for the child’s health needs. There is scant assistance in the affidavit material to support that aspect of the applicant’s proposed order.
Whilst I accept that the child has a history of asthma and that it is important that there be consistency of management, I do not consider that there is any evidence before me that would enable me to find the respondent has been resistant to the child’s asthma management plan.
The issue has to some extent been contemplated by the parties by reference to [9] of the consent orders made 7 November 2018 which identify the various medical clinics that the parties are to attend with the child.
Given that there is cross authorisation for each of the parties to obtain medical information from the child’s health professionals, the applicant has not made out a case that would support a finding that unless she has sole responsibility for the child’s medical health, the child may well be at risk.
The applicant has arranged for the child to attend upon a psychologist pursuant to a Mental Health Plan. There is nothing in the affidavit material filed by the applicant to explain the nature of the child’s attendance upon a psychologist and whilst her counsel submitted that it was necessitated by some aggressive behaviour by the child, in the absence of any evidence it is likely that the respondent was taken by surprise. There is no suggestion that the respondent has opposed the child’s continued attendance upon the psychologist and as such I do not consider that any order should be made in that regard.
Parenting considerations
Section 60CA requires that in deciding whether to make a particular parenting order the best interests of the child is a paramount consideration. In order to determine what is in the child’s best interests the Court must consider the provisions of s 60CC as to primary considerations contained in s 60CC(2) and the additional considerations in s 60CC(3).
The matters in contention between the parties related to parental responsibility and the extent to which either or both of the parties should have sole parental responsibility for the health needs of the child. Parental responsibility is informed by what is in the child’s best interests and therefore brings to account the provisions of s 60CC.
There is considerable evidence to support the applicant’s contention that whilst the child was in the respondent’s care he was not sufficiently diligent in terms of the child’s dental health. The applicant sought to address the problem and was met with overt resistance by the respondent.
The potential for the child to have ongoing dental health issues is relevant.
The applicant has acted with reasonable diligence, the respondent has not.
Whilst I am not satisfied that there should be any further orders made as to the child’s medical or emotional health, I am persuaded that the respondent was derelict in his parenting obligation to have regard to the child’s dental health, that her future dental health management cannot be left to chance or the subject of uncertainty, argument or dispute between the parties.
I propose to order that the parties have equal shared parental responsibility in respect of the child generally, but that the applicant shall have sole parental responsibility in terms of the child’s dental health.
I make orders as appear at the commencement of these reasons.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 26 March 2019.
Associate:
Date: 26 March 2019
Key Legal Topics
Areas of Law
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Family Law
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