FAMILY COURT OF AUSTRALIA
| COREY & JEBBETT (NO. 2) | [2019] FamCA 358 |
| FAMILY LAW – CHILDREN – Parenting – Risks of harm posed to child – Whether a meaningful relationship of benefit to the child can be established and maintained between the child and his father – Child with special needs – Whether child ought attend mainstream schooling or be home-schooled by his mother – Whether Mother accessing and maintaining suitable therapy for child – Involvement of Department of Child Safety, Youth and Women. |
| Family Law Act 1975 (Cth) ss 4AB, 60B(1), 60CC(2), 60CC(2A) 60 CG, 61DA, 64B, 65L, 68L, 69ZN, 91B Child Protection Act 1999 (Qld) s 9 |
| Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36 Betros & Betros [2017] FamCAFC 90 Corey & Jebbett (No. 2) [2018] FamCA 1034 Donaghey & Donaghey [2011] 45 Fam LR 183; [2011] FamCA 13 M v M (1988) 166 CLR 69; [1988] HCA 68 Mazorski v Albright (2007) 37 FamLR 518; [2007] FamCA 520 McCall v Clark (2009) FLC 93-405; [2009] FamCAFC 92 Mulvaney v Lane (2009) FLC 93-404; [2009] FamCAFC 76 Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84 |
| APPLICANT: | Mr Corey |
| RESPONDENT: | Ms Jebbett |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Kingston, Norman & Kingston Solicitors |
| FILE NUMBER: | BRC | 9223 | of | 2017 |
| DATE DELIVERED: | 29 May 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 3, 4, 5 and 6 December 2018, 11, 12, 13, 14 March 2019 and 5 April 2019, and written submissions filed 22 March 2019 (ICL), 27 March 2019 (Applicant), 11 April 2019 (Respondent) and 18 April 2019 (Applicant) |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Dart |
| SOLICITOR FOR THE APPLICANT: | Landmark Lawyers |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Pendergast |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Kingston, Norman & Kingston Solicitors |
Orders
All previous parenting Orders and Parenting Plans be discharged.
Parental Responsibility
The Mother have sole parental responsibility for major long-term decisions for the child D, born … 2012 (“the child”), and in the exercise of that sole responsibility:
2.1The Mother shall give the Father, in writing, details of the decision that needs to be made, what decision she proposes to make and the reasons why she proposes the decision be made in a particular way;
2.2The Father will respond in writing to the Mother, if he wishes to suggest any variation or alternative proposal within seven (7) days of receiving notice pursuant to Order 2.1 hereof;
2.3The Mother will consider any response given by the Father by reference to the best interests of the child; and
2.4The Mother shall inform the Father, in writing, of her decision as soon as practicable thereafter but in any event within seven (7) days of the decision having been made.
Time Arrangements
The child live with the Mother.
The child spend no time with the Father.
Communication
The Father be at liberty to send the child letters, emails, cards and presents on one occasion each month and at Christmas, Easter and…
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- AGLC
- Corey and Jebbett (No. 2) [2019] FamCA 358
- Case
- [2019] FamCA 358
- Decision Date
CaseChat Overview and Summary
The court was required to determine several key issues, including whether a meaningful relationship of benefit to the child could be established and maintained between the child and his father, whether the child ought to attend mainstream schooling or be home-schooled by his mother, and whether the mother was adequately accessing and maintaining suitable therapy for the child.
The court's reasoning led to comprehensive orders aimed at ensuring the child's welfare and development. The mother was granted sole parental responsibility for major long-term decisions, with specific communication protocols for the father. The child was ordered to live with the mother and spend no time with the father. The orders detailed extensive provisions for the child's therapies, including a multidisciplinary assessment and adherence to professional recommendations. Significant attention was also given to the child's schooling, outlining pathways for enrolment in special schools, mainstream schools, or home-schooling, depending on assessment outcomes. The father was directed to engage with a consultant psychiatrist. The court also made orders regarding the dissemination of relevant documents to professionals and the Department of Child Safety, Youth and Women.
Orders
Orders of the court
1.
All previous parenting Orders and Parenting Plans be discharged.
Parental Responsibility
2.
The Mother have sole parental responsibility for major long-term decisions for the child D, born … 2012 (“the child”), and in the exercise of that sole responsibility:
2.1 The Mother shall give the Father, in writing, details of the decision that needs to be made, what decision she proposes to make and the reasons why she proposes the decision be made in a particular way;
2.2 The Father will respond in writing to the Mother, if he wishes to suggest any variation or alternative proposal within seven (7) days of receiving notice pursuant to Order 2.1 hereof;
2.3 The Mother will consider any response given by the Father by reference to the best interests of the child; and
2.4 The Mother shall inform the Father, in writing, of her decision as soon as practicable thereafter but in any event within seven (7) days of the decision having been made.
Time Arrangements
3.
The child live with the Mother.
4.
The child spend no time with the Father.
Communication
5.
The Father be at liberty to send the child letters, emails, cards and presents on one occasion each month and at Christmas, Easter and for the child’s birthday.
6.
The Mother be at liberty to monitor the Father’s communication with the child and terminate or withhold any communications which she deems inappropriate.
7.
The Mother and Father be restrained from communicating with each other except by text message, email or via a Communication portal, for one of the following reasons:
7.1 Seeking or providing updates regarding the child’s health;
7.2 Any medical or other emergency involving the child;
7.3 Any change to the child’s therapeutic service providers, with any such change to only occur in accordance with these Orders;
7.4 Seeking or providing any information regarding the child’s education;
7.5 Notifying the other party of any change to their residential address or contact telephone number;
7.6 For the purpose of communication in compliance with these Orders or any other Order of the Court.
8.
Should the Father’s treating medical health practitioner/s from time to time be willing to forward and/or filter communication from the Mother to the Father, the Father shall provide the details of such practitioner to the Mother and the Mother shall thereafter direct all communication to the Father’s treating medical health practitioner/s save for in the case of an emergency.
9.
Each party shall keep the other informed in writing of his/her current residential address and contact telephone number and advise of any change thereto within forty-eight (48) hours of any such change.
10.
The Mother shall inform the Father as soon as reasonably practicable of any significant health issue, significant illness or any medical or other emergency involving the child.
11.
The Mother shall keep the Father informed of the child’s doctors, therapists, health care and other treatment providers, and any day care, school, educational facility or extra-curricular activity provider including providing names, addresses and contact telephone numbers.
Authorities
12.
That the Mother and Father hereby authorise the school/s at which the child is enrolled from time to time, to provide the other parent with information that they are lawfully able to provide about the child, including but not limited to copies of the child’s school reports, school photographs and newsletters of functions and this Order shall serve as such authority.
13.
That the Mother and Father hereby authorise the child’s doctors, health care and other treatment providers involved with the child from time to time, including any National Disability Insurance Scheme (“NDIS”) case manager or contact person and Company P, to provide the other parent with information that they are lawfully able to provide about the child, and to liaise and exchange information directly with the Mother and Father at his/her request and this Order shall serve as such authority.
14.
That these Orders act as authority for the child’s health and associated professionals who attend upon the child to liaise and exchange information with the child’s school and other educational providers, and vice versa, so that a proper understanding of the child’s developmental and associated needs may be attained and appropriate strategies can be prepared to promote the child’s psychological and emotional welfare, development and education.
15.
If there is a cost associated with the provision of any information or documents under these Orders from the child’s doctors, health care and other treatment providers or day care, school, educational facility or extra-curricular activity provider the expense shall be borne by the parent requesting the information.
Therapies for the Child
16.
The parties shall do all acts and things and sign all documents necessary to ensure that the child undergoes a developmental and diagnostic assessment by an integrated multidisciplinary team including, if possible, a paediatrician, clinical psychologist, speech and language pathologist, occupational therapist and an educational psychologist to determine the child’s ongoing needs and specifically his needs for formal schooling and, in particular, the Mother shall facilitate the child’s attendance at all appointments scheduled by the M Hospital for such assessment.
17.
The Mother shall do all acts and things and sign all documents necessary to ensure that any recommendations made as part of the developmental and diagnostic assessment are followed including, but not limited to, engaging and facilitating the child’s ongoing attendance upon other services or therapists.
18.
The parties shall do all acts and things and sign all documents necessary to facilitate the child’s ongoing attendance upon P Group, as directed by them, for as long as therapeutically indicated, for the child’s occupational therapy, speech therapy, physiotherapy and psychological support.
19.
The Mother will comply with all reasonable directions of the employees and agents of P Group, and shall follow all recommendations of the child’s treating professionals at P Group including following advice from the child’s treating practitioners about the priority that ought to be given to the therapies delivered to the child, and including completing any ‘homework’ or engaging in exercises with the child at home.
20.
The parties shall follow all recommendations made by the child’s treating professionals.
Schooling
21.
Should the child be assessed as meeting the eligibility criteria for entry into a special school, the Mother and Father do all acts and things and sign all documents necessary, within seven (7) days of becoming aware of the child’s eligibility, to obtain a medical report or specialist opinion confirming that the child is verified to attend a special school because he:
21.1 Has a severe disability as defined by the Disability Discrimination Act 1992 (Cth);
21.2 Has a severe disability which includes an intellectual disability;
21.3 Is unlikely to attain the levels of development of which the person is capable unless the person receives special education;
21.4 The child’s educational program is best delivered in a special school taking into account the appropriateness of his placement.
22.
In the event that the parties can obtain verification that the child is able to attend a special school, the parties will do all acts and things and sign all documents necessary, within seven (7) days of obtaining verification, to enrol the child in the O School or the Q School, or a special school in the catchment area in which the child lives.
23.
In the event that the child does not meet the eligibility criteria required to attend a special school, the parties do all such things to enrol the child in the V School on a full-time basis.
24.
Should the V School be unable to accommodate the child on a full-time basis or five (5) days per week, the Mother be at liberty to home-school the child on the days which the V School is unable to take the child.
25.
Should the child be placed on a waiting list for enrolment into the V School pursuant to Order 23 hereof, then within seven (7) days of such placement the parents shall forthwith do all acts and things necessary and sign all necessary documents to enrol the child in W School, or such other State School in the catchment of the Mother’s place of residence from time to time.
26.
Within seven (7) days of enrolment at W School, or such other State School in the catchment of the Mother’s place of residence from time to time, the parents will do all acts and things necessary, and sign all necessary documents to assist the child in obtaining support at school and in particular to request the School obtain for the child an Education Adjustment Program, and to that end shall:
26.1 Request an Education Adjustment Program for the child at the enrolment interview and shall bring with them to that interview any reports they have regarding the child’s possible Autism Spectrum Disorder diagnosis and his speech and language delay;
26.2 Complete and sign an Education Adjustment Program (EAP) Consent Form for the School;
26.3 Complete or have completed and submit/ted an Autism Spectrum Verification form;
26.4 Complete or have completed and submit/ted a Speech Language Verification form;
26.5 Take the child to any required assessments to assist in verification;
26.6 Arrange any reports necessary to support an application for an Education Adjustment Program; and
26.7 Complete any other request the School may have to enable them to apply for and obtain verification for an Education Adjustment Program.
27.
Should the child be ineligible to attend at either a special school or the V School, the Mother shall do all acts and things required to maintain the child’s enrolment and attendance at W School, or such other State School in the catchment of the Mother’s place of residence from time to time.
28.
Once the child is enrolled in school pursuant to these Orders, the parties do all acts and things necessary to ensure the child attends school each school day, except when he is unwell, with such absence to be evidenced by a medical certificate.
29.
The Father be at liberty to attend upon a parent/teacher interview at the child’s school provided that he organise such attendance to be separate from any attendance of the Mother.
Therapies and Programs for Parents
30.
The Father shall engage with a consultant psychiatrist as soon as reasonably practicable after the making of these Orders and will continue to attend upon that psychiatrist as directed by them for as long as therapeutically indicated.
Publications
31.
Pursuant to section 121 of the Family Law Act 1975 (Cth) the Father be granted leave and is directed to provide copies of the following documents to his consultant psychiatrist:
31.1 Dr U’s report;
31.2 Ms J’s report;
31.3 Ms H’s report;
31.4 A copy of these Orders; and
31.5 The Reasons for Judgment.
32.
Pursuant to section 121 of the Family Law Act 1975 (Cth) the parties are granted leave and directed to provide a copy of Ms J’s report, these Orders and the Reasons for Judgment to P Group, the M Hospital and the child’s treating health care professionals.
33.
Pursuant to section 121 of the Family Law Act 1975 (Cth) the parties are granted leave and directed to provide a copy of these Orders to the child’s school/s.
34.
The Independent Children’s Lawyer is directed to provide to the Chief Executive of the Department of Child Safety, Youth and Women a copy of these Orders and the Reasons for Judgment.
35.
That:
35.1 Each party shall do all acts and things reasonably required by the other including signing or execution of all necessary documents to give effect to these Orders within seven (7) days of being requested in writing to do so;
35.2 If either party refuses or neglects to sign or execute and return a document within seven (7) days of a written request to do so then the Registrar of the Brisbane Registry of the Family Court of Australia is hereby appointed under section 106A of the Family Law Act 1975 (Cth) to sign or execute such document on behalf of that party upon lodgement of such document and the filing of an affidavit on behalf of the requesting party as to the said refusal or neglect;
35.3 The requesting party be at liberty to apply for costs when submitting such an affidavit to the Registrar.
IT IS FURTHER ORDERED THAT:
36.
All applications be otherwise dismissed and removed from the pending cases list.
37.
Pursuant to section 62B and section 65DA(2), of the Family Law Act 1975 (Cth), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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