Cousins & Ray
[2022] FedCFamC2F 354
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cousins & Ray [2022] FedCFamC2F 354
File number(s): BRC 2039 of 2021 Judgment of: JUDGE CASSIDY Date of judgment: 25 March 2022 Catchwords: FAMILY LAW – final parenting arrangements – where there is currently an equal time arrangement in place – where the children have extensive medical needs – where the Mother and Father have significant disagreements with respect to medical and education issues – where the Father holds non-mainstream views regarding medicine, education and health – where the children have expressed a wish to live with the Mother. Legislation: Family Law Act 1975 ss 60CA, 60CC(2), 60CC(2A), 60CC(3), 61DA. Division: Division 2 Family Law Number of paragraphs: 100 Date of last submission/s: 2 March 2022 Date of hearing: 8-9 February 2022 Place: Brisbane Counsel for the Applicant: Mr George Solicitor for the Applicant: Legal Aid Queensland Solicitor for the Respondent: Self-represented Counsel for the Independent Children's Lawyer: Dr Sayers Solicitor for the Independent Children's Lawyer: Parker Family Law ORDERS
BRC 2039 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS COUSINS
Applicant
AND: MR RAY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE CASSIDY
DATE OF ORDER:
25 MARCH 2022
THE COURT ORDERS ON A FINAL BASIS:
1.That all previous Orders and Parenting Plans be discharged.
2.That save as otherwise provided in these Orders, that the Mother and Father have equal shared parental responsibility for the children X born in 2012 and Y born in 2013 (herein, “the children”).
3.That the mother has sole parental responsibility for the children in respect of all major long-term decisions for the children’s education, medical and health needs.
4.That in respect of Order 3 herein, the Mother shall:
(a)Notify the Father in writing (which may include via a parenting app) of all major long-term decisions she has made for the children’s education, medical and health needs; and
(b)Communicate any major long-term decisions to the Father as soon as reasonably practicable after the decision is made.
5.That the children live with the Mother.
6.That the children spend time with the Father at all times as may be agreed in writing, but failing agreement as follows:
(a)Commencing on the Thursday of the Father’s next scheduled alternate week rotation after these Orders and continuing each alternate Thursday during the school term thereafter, from the conclusion of the children’s attendance at school at 2:35pm Thursday to the commencement of their attendance at school on the following Monday at 8.30am.
(b)In the event the children are not at the school at the commencement or conclusion of the Father’s care period, (for example due to illness) changeover shall occur at the Store B Suburb C at 3:00pm on the Thursday at the commencement of the Father’s care or Monday at 9:00am at the conclusion of the Father’s care.
(c)In the event that the Monday when the children are to spend time with the Father is a public holiday, then:
(i)The Father’s time concludes at the commencement of the children’s attendance at school at 8:30am on the Tuesday of that week.
(d)During school holiday time, order 6(a) is suspended:
(i)In even-numbered years:
A.For the end of Term 1, 2 and 3 holidays, for the first half of school holidays from the conclusion of the children’s attendance at school at 2:35pm on the final day of term until 4:00pm on the second Saturday of the school holiday period;
B.For the end of Term 4 holidays, week about from the conclusion of the children’s attendance at school at 2:35pm on the final day of term until 4:00pm of the second Saturday of the school holiday period and from 4:00pm each alternate Saturday to 4:00pm the following Saturday thereafter.
(ii)In odd-numbered years:
A.For the end of Term 1, 2 and 3 holidays, for the second half of school holidays from 4:00pm of the second Saturday until the commencement of school at 8:30am on the first day of term.
B.For the end of Term 4 holidays, week about from 4:00pm of the second Saturday of the school holidays until 4:00pm of the following Saturday and from 4pm each alternate Saturday to Saturday thereafter.
(e)The alternate Thursday to Monday the children spend with the Father during the school term pursuant to Order 6(a) commences at the conclusion of the school day at 2:35pm on the first Thursday of each new school term.
(f)Notwithstanding Orders 6(a) and (f), the children are to spend time with the Father-
(i)On Christmas Day with from 12:00pm Christmas day to 6:30pm on Boxing Day each year;
(ii)On the Father’s Day weekend from 4:30pm on the Saturday preceding Father’s Day to 6:30pm on Father’s Day;
(iii)On the Father’s birthday if the children are not already in the Father’s care and it is a school day then from 4:30 pm to 6:30pm and on a non-school day from 9:30am to 6:30pm.
(iv)On the children’s birthday if the children are not already in the Father’s care and it is a school day then from 4:30pm to 6:30pm, and on a non-school day or if they are not attending school from 12:30pm to 6:30pm.
7.That notwithstanding Order 6 herein, the children shall spend the following time with the Mother on special occasions:
(a)From 9:00am on Christmas Eve to 12:00pm on Christmas Day each year;
(b)From 4:30pm on the Saturday preceding Mother’s Day to 6:30pm on Mother’s Day.
(c)On the Mother’s birthday if the children are in not already in the Mother’s care and it is a school day then from 4:30pm to 6:30pm and on a non-school day from 9:30am to 6:30pm.
(d)On the children’s birthday if the children are in not already in the Mother’s care and it is a school day then from 4:30pm to 6:30pm, and on a non-school day or if the children are not attending school from 12:30pm to 6:30pm.
8.That irrespective of which parent the children are spending time with at Easter, the children shall always spend from 9:30am each Easter Saturday to 12:30pm on Easter Sunday with the Mother and from 12:30pm each Easter Sunday to 6:30pm on Easter Monday with the Father.
9.That save for as expressly provided for in these Orders or otherwise agreed in writing, all changeovers shall occur at each child’s respective school or, if the school is closed at the time of changeover, then at D Children’s Contact Centre at Suburb H. Both parents are to equally share in any costs of the Contact Centre.
10.That if D Children’s Contact Centre is unavailable, or if the child/ren are unwell, changeovers shall be facilitated by the parents and occur at the Store B on E Street, Suburb C.
11.That if either parent is unable to attend changeover, then that parent shall nominate a family member to collect the children, however the Father’s partner Ms F shall not attend any such changeover where the mother is present, and the Mother’s Father shall not attend any such changeover where the father is present. The parent unable to attend, must notify the other parent no less than 2 hours prior to changeover as to whom will be collecting the children.
12.That the parties shall:
(a)Keep each other informed at all times as to their residential addresses and residential and mobile telephone numbers and notify the other within 48 hours of any change;
(b)Keep each other informed as to the names and addresses of any treating medical practitioners, healthcare practitioners who come into any contact with the children and this order shall be an authority to any such practitioners to provide to the other party any information that such practitioners may lawfully provide about the children; and
(c)Inform the other party as soon as reasonably practicable of any injury or illness affecting the children that requires any medical or hospital attention. This Order authorises any such medical practitioner or hospital to release the children’s information to the other party.
13.That save in the event of emergency, all communications between the Mother and Father are to be via the AppClose or, if that App is withdrawn or otherwise unavailable, such other parenting application as may be agreed in writing between parties.
14.That in the event of an emergency, a parent is at liberty to communicate with the other via SMS or similar.
15.That the Mother and Father shall exchange communication in accordance with Order 13 in relation to any matters relevant to the children at the end of each of their respective care periods.
16.That the Mother and the Father are to be listed as the emergency contacts for the children on all documents related to the children’s education and medical, health and extra-curricular activities.
17.That, with respect to the children’s medical needs:
(a)The Mother will inform the father in writing of the children’s medical needs as directed by the children’s medical practitioners and the Father will provide all medications as prescribed to the children.
(b)The Mother will provide the father with the children’s medications and shall set out in writing in a hardcopy Medications Record, which shall travel with the children and is to be utilised for that purpose, the type of medications and dosage prescribed.
(c)Once the medication has been administered by the Father, the Father shall sign the communication book to verify that the medications have been administered in the dosages and at the times as prescribed.
(d)The Mother will provide the Father with a copy of all completed sheets of the Medication Record for his records.
18.That the parties shall at all times comply with any directives issued by the children’s treating medical practitioners, whom shall include, but not be limited to, those practitioners employed by the G Medical Centre and any medical specialists attended by the children from time to time.
19.That the parties will facilitate all surgeries directed to be undertaken by respective specialists to resolve X’s ENT issues through DD Hospital or other suitable institutes at the earliest available opportunity and irrespective of which parties time X is in at the time of appointment availability.
20.That X shall remain in the care of the Mother for any post-surgery recovery period as directed by the child’s treating medical practitioner.
21.That if the parents intend for the children to play sport and/or engage in extracurricular activities, the parents shall not enrol the children in any activity that falls during the other parent’s time without the other parent’s consent.
22.That both parties are at liberty to attend the children’s sporting and extracurricular activities.
23.That any educational/childcare institutions attended by the children are hereby authorized and empowered to provide to both parents any information about the children’s educational progress and school/childcare related activities and supply both parents with copies of school progress reports, photographs, certificates and awards obtained by the children. Any out-of-pocket expense connected to any such request shall be the responsibility of the party who made such request. Any one-off awards etc. received by the children will be copied and provided to the other party.
24.That neither parent shall physically discipline the children nor shall they allow any other person to physically discipline the children, while the children are in their care.
25.That unless otherwise agreed in writing;
(a)Both parties at all times be at liberty to contact the children via Zoom or telephone call, or other suitable communication platforms that may be agreed in writing between parties, on the Sunday between 8:30am to 9:00am of the other parents respective care period.
(b)The Mother will provide the Father an additional Zoom or telephone call, or other suitable communicating platforms that may be agreed in writing between parties, with the children during the school term on the Tuesday of her respective care period from 6:30pm to 7:00pm.
(c)During school holiday time, both parties will provide the other with an additional Zoom or telephone call, or other suitable communication platforms that may be agreed in writing between parties on the Tuesday of their respective care periods between 6:30pm and 7:00pm.
(d)That the children be at liberty to request to conduct Zoom or telephone calls, or other suitable communication platforms that may be agreed in writing between parties, with either parent or other siblings whom reside with the Father and that the parties will make reasonable efforts to facilitate those requests.
26.That during the time the children are with either parent, that parent shall:
(a)Respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b)Speak of the other parent respectfully;
(c)Not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children; and
(d)Not discuss the court matters nor adult dispute with the children nor in their hearing.
27.That neither parent shall consume alcohol to the point where they are over 0.05% BAC when the children are in their care.
28.That neither parent shall consume or be under the influence of illicit drugs, or allow the children to be exposed to any other person whom is under the influence of illicit drugs, at any time whilst the children are in their care.
29.That if either party intends to travel with the children within Australia, they shall ensure that the other party is provided with a contact number that the children could be reached for that particular period of travel and the destination.
30.That the process to be used for resolving disputes about the terms or operation of these Orders shall be as follows:
(a)The parents shall consult with a Family Dispute Resolution Practitioner (FDRP) to assist with resolving any dispute or reaching agreement about changes to be made;
(b)The parties shall pay the costs of the FDRP equally;
(c)In the event the parties cannot agree on an FDRP the Mother shall nominate a panel of 3 advised in writing of details of their fees, experience and availability AND the Father shall choose one within 7 days of receipt of the list AND if the Father fails to choose the Mother may choose.
31.That the Independent Children’s Lawyer be discharged, save for any appeal.
IT IS NOTED:
A.That pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in “Parenting orders – obligations, consequences and who can help” and these particulars are included in these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Cousins & Ray has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Cassidy
INTRODUCTION
In this matter the parents have asked the Court to decide the future parenting arrangements for the children X born in 2012 and Y born in 2013.
THE ICL’S PROPOSAL
The Independent Children’s Lawyer’s (herein, “the ICL”) proposal can be summarised as follows:
3. (a)That the other has sole parental responsibility for the children in respect of all major long-term decision (sic) for the children’s education, medical and health needs.
(b)That in respect of 3(a), the Mother –
(i)Is to notify the Father in writing (which may include via a parenting App) of all major long-term decisions that she has made for the children’s education, medical and health needs.
(ii)The Mother is to communicate any major long-term decision to the Father as soon as reasonably practicable after the decision is made.
4. That the children live with the Mother.
5. That the children spend time with the Father at all times as may be agreed in writing, but failing agreement as follows:
(a)Commencing the first Friday after these Orders and continuing each alternate Friday of school term time thereafter, from the conclusion of the children’s attendance at school until the commencement of their attendance at school on the following Tuesday.
The proposal includes time with the Father during for half of school term holidays and with the Christmas holidays as an alternating week-about arrangement. It also includes that the parents have equal shared parental responsibility.
THE MOTHER’S PROPOSAL
The orders sought by the Mother are set out in the Mother’s Proposed Final Orders, which were provided with her oral submissions. The proposal includes that the Mother and the Father have equal shared parental responsibility except for medical and education decisions, where the Mother is to have sole parental responsibility. The Mother proposes that the children live with her and spend four nights per fortnight with the Father as well as half of all school holidays, with the Christmas holidays being on a week-about basis. The Orders provide for special days, changeovers at D Contact Centre, and various specific issues orders. The Mother provides for specific orders in relation to X’s ENT issues. She further proposes orders in relation to telephone/Zoom time.
THE FATHER’S PROPOSAL
The orders sought by the Father are set out in the Proposed Final Orders the Father provided at the beginning of his oral submissions. The Father proposes equal shared parental responsibility. He consents to the Mother having sole parental responsibility in relation to medical decisions. The Father seeks a gradual decrease in nights if I am not making an equal time order. He seeks six nights in 2022 and five nights in 2023 and thereafter. His proposal is that his time in the holidays should run from Thursday to Thursday. The Father has time for special days that alternate. His proposal is for changeovers to occur at school and otherwise at the Store B at Suburb C.
BACKGROUND
Unfortunately for these children, this matter has had a long history in the Court.
The current parenting arrangement is an equal time arrangement, with the boys transitioning from Thursday to Thursday. This was put in place with final Orders made by Judge Lapthorn in mid-2018. The changeovers occur at school and if not at school at a contact centre.
The parents commenced a relationship in 2008. They were married in 2011. Separation occurred on Christmas Day 2015 and the parents divorced in May 2017.
The Family Report Writer Records, by way of background:[1]
3.The mother reported she has stable accommodation in the Suburb H area. She currently works in the hospitality industry whilst studying to obtain qualifications in health care. The mother is not currently in a relationship and has no other children.
4.The father resides within the Suburb H area he is self-employed in the in the allied health sector. The father currently resides with his partner of four years Ms F, her biological child J, and their one year old son K.
[1] Family Report of Ms L dated 9 November 2021, filed 10 November 2021 at paragraphs 3-4.
The Mother filed an Initiating Application on 17 February 2021. The matter was allocated to the Evatt List.
On 4 May 2021 Senior Judicial Registrar O’Neill made orders by consent that:
·Doctor M be appointed as a Court Expert and provide an assessment of the children’s health needs;
·That the father attend his General Practitioner to secure a referral to a psychologist for the purpose of assessing his mental health and functioning;
·The father to undertake hair follicle drug testing, and;
·The mother to have sole parental responsibility pertaining to health issues for the children.
Post-Separation Parenting Arrangements
The parties separated on Christmas Day 2015 after a physical altercation between the Father and the Maternal Grandfather.
In around early 2016 the parents negotiated a formal Parenting Plan for shared care.
On 1 March 2016, the Mother stopped time with the children after raising concerns of the Father’s drug use, domestic violence towards her and neglect of the children.
On 1 July 2016, the Father filed an Application in this Court and he recommenced spending time with the children on 7 August 2016.
On 14 May 2018, Judge Lapthorn made final consent orders for the children’s time with the Father to gradually increase to a shared care arrangement. The parents have been involved in this shared care arrangement for some years now.
Both parents were initially seeking residence of the boys and that is still the Mother’s case, however the Father is seeking that equal time continue or that the time only decrease gradually to five nights per fortnight over 2022 and 2023.
EDUCATION HISTORY OF THE CHILDREN
The boys attend N School.
Y was in Year 2 in 2021. Y was absent for a total of 33 days in 2021. He achieved satisfactory results in 2021, ranging from Standard to Very High Achievements.
The Report records:[2]
Behaviour: Very High
Comments: Y independently and consistently displays a very high level of understanding of the school wide rules – I am responsible, I am respectful and I am ready. He effectively manages change and new situations, and demonstrates resilience after setbacks. Y is to be commended as a role model to peers.
[2] Agreed pages of Subpoena Tender Bundle prepared by the ICL, marked Exhibit 5 in proceedings, at page 215.
X was in Year 4 in 2021. X was absent 23 days in 2021. His results were Satisfactory over the two semesters, ranging from A to C in various subjects.
The Report records:[3]
(…)
X is a cheerful and friendly class member who is keen to participate in various school activities. He has shown commendable growth this year in his personal organisation shills and attention to class tasks. X has a positive outlook towards learning and a good range of strategies to help him become a successful learner. He shows respect towards others in the school community, and interacts well with his peers. X is an active listener and makes thoughtful and positive contributions to small-group and whole class discussions.
[3] Ibid, at page 234.
There was an incident at the school on 12 December 2019. This is recorded in the subpoenaed notes:[4]
[4] Ibid, at Department of Education Subpoena notes annexed to document.
Y and X
12/12/19
CT Ms O alerted me to the fact that there may be an issue around custody today. I saw her in the morning and she showed me a message from Mr Ray that he would be coming up at 12pm to bring X vegan nuggets.
Ms Cousins came and saw me before school and brought a copy of the court orders stating that she would take both children at 12pm after the Prep concert and the year 2 class party. Then bring them back by 2:35 for hand over with Mr Ray.
Mr Ray had then rung the office staff and had expressed that Ms Cousins would be breaking court orders if she signed the boys out early.
Mr Ray came to school and met with me and said that he would be signing the boys out after the Prep concert and the year 2 class party. [redacted] He stated that if I did not give him his children I would be kidnapping them. He also said I could not withhold his children from him. I stated that [redacted] I was not withholding the children from him.
[redacted]
Before commencement of Prep concert, I asked both parents to meet with me after in a meeting room. Both parents knew the other was in attendance.
Meeting
Ms P, Ms Q, Mr Ray, Ms Cousins I started the conversation with ‘I need everyone to be respectful. If we are not then I will not continue the conversations. All parties were in agreement.
[redacted]
I asked if both parties were in agreement as to what was to happen with the children.
Mr Ray wanted to take the children. Ms Cousins stated that she disagrees.
I then asked both parties to leave the school premise to sort out an agreement and come back to me when sorted.
Ms Cousins stated she would not discuss the matter with Mr Ray off site as she did not feel safe. Mr Ray stated that I was with holding legal guardianship – that’s kidnapping. Mr Ray spoke about the court orders and what they said. I repeatedly restated that I was not discussing the court orders. [redacted] I stated that the children’s safety is my priority.
Mr Ray continued to repeatedly go over his interpretation of the court orders. I repeatedly stated that I would not discuss the court orders. Mr Ray kept disregarding my request.
I stated if they would agree I could asked the children who they wanted to go with. If it was Ms Cousins then she would bring them back by 2:30. If it was Mr Ray then they could go. Ms Cousins agreed. Mr Ray did not.
Mr Ray then said he would think about it.
Ms Cousins stated that she would not take the children from school that she would be happy for them to go with Mr Ray at 2:30 – end of school.
[redacted]
Parents went off to class parties.
[redacted]
X did want to go with dad early. Y did not want to go with dad.
Informed Ms Cousins of X’s decision to go with dad early. She was agreeable.
Dad was in the office waiting for me.
[redacted]
Mr Ray asked about next year. When one is sick are you saying I won’t be able to take the boys?
[redacted] The outcome was X wanted to come home early and Y did not.
Dad asked me to put it in writing. I told him I will get back to him.
[redacted] When I went outside to inform Mr Ray, he was gone.
Around 2 I received a call from Ms R from regional Office at Suburb S. I went through the situation with her.
Mr Rays Partner came in requesting a letter saying that we would not release both boys at 12:30. I said that I did not have one as X went with dad and he was able to pick up Y at 2:30 – end of school.
The partner also requested the name of the legal person we spoke to. I let her know that it was a department of education legal team member. She stated that they had spoken to the department of education and they did not know of who she was talking about.
I stated to the partner that I would need Mr Ray to discuss this further not her.
I restated that if the court orders were not clear then they needed to sort that out, outside of school.
Ms P 12/12/19
Fortunately, this has been the only incident at the school but it does demonstrate that these parents seem unable to agree on what I consider to be a very minor dispute about what time the boys should be collected from school. The notes also record the Father as advising Ms P, the school principal, that she would be kidnapping the children if she failed to give them to the Father, which I consider to be very inflammatory language to use with a staff member of the boys’ school.
HEALTH AND SPECIAL NEEDS OF THE CHILDREN
An ongoing area of dispute and disagreement for these parents has been the boys’ health needs. This is particularly the case with X.
I was assisted in relation to X’s health by the ICL obtaining evidence from two health professionals. Dr M is a consultant paediatrician from Suburb T on the Region U and Dr V.
In relation to X, Dr M records his opinions and these were provided after the doctor considered the letters the Father wrote in relation to X’s medical issues:[5]
[5] Affidavit of Dr M filed 7 February 2022, at page 33.
Maternal Concerns:
1.a heart condition.
2.Iron deficiency and nutrition
3.Reactive airway disease/asthma
4.ENT and sleep issues
5.Encopresis
6.Urinary incontinence
7.Gut issues
8.Skin
9.Mental health issues
The Heart Condition
Dr W provided an opinion on 21 August 2021.
Dr W is a specialist in paediatric cardiology. His report records:[6]
[6] Affidavit of the Mother filed 1 December 2021, at Annexure 7.
On reviewing X's previous measurements 12 months ago, his current findings remain unchanged and satisfactory.
X has stable abnormalities involving the heart. This is not likely to affect him over many decades and indeed may never require surgical attention.
Meanwhile, he should continue to lead a normal lifestyle, which includes all forms of aerobic exercise, which would typically include athletics, soccer, cycling, etc.
There is a low risk of endocarditis in native valves, but under Australian guidelines, this does not require additional antibiotic cover at the time of invasive procedures.
The family is aware of these observations and recommendations, in terms of lifestyle management. No specific precautions are required otherwise. Likewise, the school should be aware of this same information.
X is not at particular risk, in relation to other forms of illness such as respiratory illnesses.
All other illnesses, whether infective, inflammatory or otherwise, should be treated as usual on their merits, with no specific modification due to X's cardiac status. There is no specific risk, in relation to severity of COVID infection, should X suffer this illness.
As per usual recommendations, all patients with congenital heart disease should be vaccinated, as the risk of the severity of the illness is many times higher in the unvaccinated versus vaccinated population, but in X's case, this is not altered by underlying heart disease.
It is recommended that X remain under regular review. At this stage, a further review in two years would be appropriate.
Dr M did not offer a further opinion in relation to this issue.
Iron Deficiency without Anaemia
Dr M records in his report:[7]
Opinion: X is currently iron replete. He has responded to diet and iron replacement which makes it unlikely that he has malabsorption or coeliac disease.
I have recommended to continue to increase his iron stores to ensure that he remains iron replete as he grows. This to be done via
a. Diet
b. Continuing Maltofer.
(…)
Addendum 2nd September 2021: Mr Ray reports that X does have green vegetables when is his care that are a source of Iron.
My opinion and recommendations remain the same.
[7] Affidavit of Dr M filed 7 February 2022, at page 34-35.
Asthma
Dr M records in his report:[8]
Opinion: X does have a history consistent with asthma based on a history of wheeze that responds to Ventolin. His history is that of episodic asthma rather than chronic asthma.
Addendum 2nd September: Mr Ray reports that in his care
a. X did require Ventolin during viral respiratory tract infection between 30th April - 7th May 2021.
b. that X has not need (sic) Ventolin at any other time
c. there are no interval symptoms
My opinion and recommendations remain the same as above as Mr Ray is not reporting any more significant symptoms.
[8] Ibid, at page 35-36.
ENT and Sleep Issues
Dr M records in his report:[9]
4. ENT and Sleep Issues
As per my previous letter, he has seen the relevant specialist ENT and sleep specialist. I did not delve further into this.
[9] Ibid, at page 36.
This issue will be discussed when reviewing Dr V’s evidence.
Encopresis
Dr M records in his report:[10]
[10] Ibid, at page 35-36.
5. Encopresis
(…)
Opinion: The history that I received is consistent with constipation and overflow incontinence otherwise known as Encopresis. There are no red flags in the history nor examination so I do not believe he requires any further investigations.
I have printed out a handout on constipation overflow incontinence. The process is to retrain X and to make sure that he is passing a stool every day and completely evacuating his rectum.
Ms Cousins currently gives him one or two satchels a day of Metamucil with her which can continue.
Management plan recommended
a. Timed toileting, making sure that he goes everyday
b. Effective pushing and evacuation
c. Keeping the stool soft to avoid pain. Metamucil is reportedly working and can be continued. Movicol was previously tried and reported no benefit.
d. He needs to pass stool regularly every day for 6-12 months for his rectum to recover. That is, this is a long term problem. Having said that, I believe his prognosis is good as he does have periods where he does not soil.
ADDENDUM 2nd September 2021: Mr Ray reports that X followed the Naturopath’s diet, X did not have encopresis, He does not state if X did or did not have encopresis before or after being on this diet. Outcome is the (sic) my opinion and advice remain unchanged.
Urinary Incontinence – Minor
Dr M records in his report:[11]
6. Urinary Incontinence – minor
Opinion: Minor urinary incontinence during the day. Likely being exacerbated by constipation.
I have printed off comprehensive handout on urinary incontinence.
Recommended
- manage constipation.
- regular water intake.
- regular timed voiding.
[11] Ibid, at page 35-36.
Dr V gave evidence and she was cross-examined by the Father. The doctor is an ear, nose and throat specialist.
The Father wrote to Dr V on 9 April 2020 and noted:[12]
We would like to request a conference call where both parents are able to hear the total of the consultation. Ms Cousins (X’s biological mum) most likely has a general anxiety disorder (GAD), resulting in symptoms very much like someone with Munchausen Syndrome by Proxy (MSBP) which can create an interesting situation when it comes to joint healthcare, especially for our son X.
(…)
Ms Cousins’s family all seem to suffer from mental illnesses which most likely is having an impact on X, this view is consistent with the literature on parents and their children.
[12] Affidavit of Dr V filed 4 February 2022, at Annexure C at page 27.
On 31 December 2021 the doctor records:[13]
[13] Ibid, at Annexure D at page 30.
RE: Master X
Z Street, Suburb H
DOB: 2012
Medicare No: …
Phone: …
Just to let you know that I reviewed X today and his symptoms as described by mum continue. I note the sleep study from Dr AA. The sleep study showed soft snoring and periods of mouth breathing. There were noted to be perods (sic) of airflow limitation however there was no significant obstructive sleep apnoea in the sleep study. Dr AA reported based on the sleep study he would recommend observation with conservative treatment. X saw Dr BB regarding allergies and has been trialled on allergy avoidance, daily nasonex nasal spray and daily antihistamines. Mum reports these were probably only done at her house. Despite doing this mum reports X's symptoms continue.
On examination today the left tonsil is significantly larger than the right. The left is grade 3 and the right is grade 2. In May, 2020, they were both noted to be grade 2. He also has allergic rhinitis.
As X, has had conservative management and his symptoms continue. Mum reports he continues to snore and has significant daytime tiredness interfering with his attention and learning. I thus feel the next step would be consideration to cautery to the turbinates and an adenotonsillectomy for histology of the left tonsil due to tonsillar size asymmetry as well as hopefully help with his symptoms. Mum is aware that we are not sure that this will cure the symptoms that he has but he continues to be excessively tired. There is no assessment that will completely predict the degree to which X will improve or if at all with surgical treatment. After consent from mum, I have discussed X's case with collegues (sic) as mum and dad's histories are different and th (sic) sleep study didn't show significant sleep apnoea . As well a colleague, Dr CC, from the DD Hospital reviewed X independently of me and came up with the same suggestion regarding further management. Mum is aware of the procedure, the usual post operative course and possible complications.
This issue of the child needing surgical intervention for his sleeping/breathing and enlarged tonsils has been an ongoing issue between the parents.
Of note is that the Father seriously challenged Dr V when he cross-examined her in circumstances where he put his views to her forcefully. However, they were not supported by expert opinion provided in his case.
I accept the opinion of Dr V set out above.
The Father concedes the Mother should have sole parental responsibility for medical issues so there should be no further conflict of opinion in relation to health issues.
I note in the Family Report it records:[14]
35.The mother described the father as inflexible surrounding his views, she stated he often “argues” with education and health professionals presenting research and literature which supports his own beliefs. The mother stated as a result of the father’s rigidity the children, in particular X (sic), have not had access to appropriate medical treatment in a timely manner. The mother is concerned in the absence of formal orders this pattern of “abuse” will continue.
[14] Family Report of Ms L dated 9 November 2021, filed 10 November 2021 at paragraph 35.
I saw the Father as presenting as somewhat inflexible with Dr V. He was challenging her with views he relied on. However, his position was not supported by an opposing medical expert.
Dr M assessed Y as well. I do not need to record his opinions here for the purpose of these reasons.
THE FATHER AND MOTHER’S MENTAL HEALTH
The Mother’s mental health is discussed in the Family Report:[15]
37.The mother stated she experienced depression in 2001 and again in 2009 and was prescribed psychotropic medication during each episode. The mother described her experience in 2001 as being “severe” she stated she struggled living at home in her teenage years due to her father’s experience of PTSD. In 2009 the mother attributed her depression to, “not knowing where I wanted to be in life”. The mother stated in 2015, she had engaged with a psychologist to address her experience of domestic violence.
38.The mother reported since separation from the father her mental health had improved dramatically, and whilst she does find litigation stressful she believes she has appropriate skills and support to manage effectively.
[15] Ibid, at paragraph 37-38.
The Father’s mental health is discussed in the Family Report:[16]
69.The father suffered from anxiety and depression in his teens and early 20’s, he stated, “I went to a psychologist, and they told me I needed to take more time to myself’. The father advised he found it difficult to manage the symptoms of his diagnosis whilst in a relationship with the mother as she “pressured me to get everything done” meaning he was unable to “take time”. The father stated post separation from the mother he had the “opportunity” to “re-find myself, enjoy my freedom”.
70.The father stated “a few years back”, he “got help for PTSD” claiming, “I felt nervous everywhere I went that I would see the applicant”. The father described the source of his concern having arisen from the DVO and feeling that the conditions of such would make the children feel as though “I abandoned them”. The father stated at this time he undertook cognitive behavioural therapy which was “a catalyst for me knowing I could help others, I am now certified’.
[16] Ibid, at paragraphs 69-70.
I note the Father has “smoked” marijuana on a daily basis in the past. The Family Report records:[17]
74.The father reported whilst in a relationship with the mother he use (sic) to “smoke” marijuana on a daily basis. The father stated post separation he had ceased using marijuana. More recently the father advised he had been prescribed medical cannabis as a recommended treatment for ongoing migraines.
75.The father reported no concerns surrounding the mother’s use of alcohol or illicit substances.
[17] Ibid, at paragraphs 74-75.
DOMESTIC VIOLENCE
There are no current Domestic Violence Orders in place. There was an application by the Mother for a DVO in 2016. This was resolved by the Father providing an undertaking.
The Father sought funding under s 102NA of the Family Law Act 1975 in an application for the Court to make the order in the exercise of its discretion, given that none of the mandatory exclusions applied.
The Mother, through her solicitor, indicated she was willing to be cross-examined by the Father and opposed the making of the 102NA Order.
I therefore do not consider this is a matter where domestic violence is a significant issue.
I note there was a serious incident on 13 September 2017 where the Father’s partner, Ms F was charged with common assault and public nuisance in relation to the Mother following an incident at changeover. Ms F pleaded guilty to the charges.
LEGAL PRINCIPLES
The principles governing the Court’s determination in this matter are set out in the Family Law Act 1975.
Section 65D of the Act, subject to s 61DA (“the presumption of equal shared parental responsibility”) and s 65DAB (“parenting plans”), gives the Court the power to make a “parenting order”. A “parenting order” is defined by s 64B of the Act.
In deciding whether to make a particular parenting order s 60CA requires that I must have regard to the best interests of the children as my paramount consideration.
Primary Considerations
Turning firstly to the application of the primary considerations set out under ss 60CC(2) and (2A):
(2)The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(…)
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
This is a matter where there is no doubt that there is a benefit to these two boys in having a meaningful relationship with both parents.
I do not consider there is a need to protect the children from harm from being exposed to abuse, neglect or family violence.
I accept these parents have vastly difference parenting styles. The Father’s household is focused on self-sufficiency, with an emphasis on growing his own food and using alternative medicine where appropriate. I also note that the Father and his partner are home schooling Ms F’s son.
The Mother’s household is more mainstream, with a diet that includes meat. The Mother is focused on traditional medicine to treat the boys’ ailments. Furthermore, the Mother is committed to the children attending schools for their education.
I accept that the Father has not sought to home school the boys.
The Children’s Views
This consideration is set out in s 60CC(3)(a) as follows:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
X spoke to the Family Report Writer about both his Mother and his Father. The Report Writer records:[18]
[18] Ibid, at paragraphs 97 – 104.
97.X (sic) stated he liked being with both his mother and his father. He advised he was nine years of age and currently undertaking grade four at school. X (sic) stated “when I am at dad’s place I mostly play outside with my brothers other times just by myself”, X (sic) stated “sometimes I play cards”
98.X (sic) reported he enjoys cooking but “I don’t really like the food at dads, he’s vegan so it’s just lots of salads, we have to use what we have even when it looks bad, dad doesn’t like waste”. When asked about his diet whilst in the care of his father X (sic) said “we just each fruit and vegetables, I get hungry at dads because the food is never good it’s really yucky, sometimes he has bread”.
99.X (sic) stated “at our home we watch TV and the food is yummy, mum pumps up balls for us to play with and Poppy comes over”. With regard to his mother X (sic) said “she plays with us and takes us to the park, she comforts us, I like when she sits down next to me and we cuddle”. X (sic) stated “everything about mum is good, we never get in trouble”.
100.X (sic) stated when he gets into trouble at his father’s house “I have to go to the thinking spot and stay there, sometimes for two hours”. With regard to Ms F, X (sic) said, “she is not very nice she hurts me and Y, she grabs us by the arms, we tell her it hurts but she doesn’t stop, she thinks we hurt J but he lies to get us in trouble”. X (sic) stated Ms F calls him, “the F word all the time, it’s not good, daddy tells her not to do it, but she does anyway”.
101.X (sic) advised, “I have a heart condition, lung problem, an iron deficiency, and sleep apnoea”. X advised whilst in the care of his father “he didn’t give me my medicine, but now he does”. X (sic) is aware “mum and dad fight about my medicine, now they don’t go near each other, they are not friends”. X (sic) stated he feels really “sad” that he has made his parents “fight”.
102.X (sic) stated he is embarrassed by the clothes he has to wear when he was spending time with his father “he gets us old stuff it’s always dirty and doesn’t fit, everything is second hand”. X (sic) advised “their house is not clean there is lots of stuff everywhere, it’s really messy, our home is nice and tidy”.
103.X (sic) confirmed he “gets really tired at mum and dad’s house, but I run around more at dads he has more space”. X (sic) stated when he is tired he struggles to remember things, “it’s really hard, makes school work hard, sometimes I don’t want to play with my friends at break time”.
104.When asked if there was anything in particular he wanted the Judge to be aware of X (sic) said “I don’t want to see dad, I don’t really like him because of the way he treats us”. X (sic) believes his father “is not respectful, he puts us in the thinking spot for ages, sometimes he grabs us, it hurts but he says sorry later”. X (sic) advised “I am not scared of dad, I just don’t like him”.
I consider it significant that X considers his Mother’s place “home”.
It appears he has a very fond regard for his Mother. I am not surprised that there are more complications for him at his Father’s home, given he is living in a blended family with a half-sibling and a step-brother.
I note that X told the Report Writer he liked being with his Mother and his Father.
Y told the Family Report Writer:[19]
108.Y stated “I am here for a family report, mum told me about it, I feel nervous but I am okay to talk to you about what I want”. Y advised, “I want to live with mum because sometimes dad pulls my arm and it hurts, he doesn’t say sorry which is really mean”.
109.Y stated he liked being with his mum “she does fun stuff with us, we play games, and go places”. Y stated “mum never gets mad, she talks to us nicely even when we are naughty”. Y stated he could not think of anything about his mother that he would change “she good the way she is”.
(…)
113.Y stated his mother and father were “divorced” he stated this had occurred because “they don’t like each other”. Y denied that his parents talk negatively about each other however he said “when we are with dad we don’t talk about what we do with mum, I don’t know why we, just know not too”.
[19] Ibid, at paragraphs 108-109.
I think Y’s observation sums up the difficulty with this matter. These parents do not appear to like each other. It is very difficult to be in a co-operative equal time care arrangement when the parents do not like each other.
Child’s relationship with significant persons
This consideration is set out in s 60CC(3)(b) as follows:
(b)the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child)
I have already found when referring to the primary considerations that both children have a close and attached relationship with the Mother and the Father.
There is no doubt that the children have a very positive relationship with their Mother and they have expressed a preference to live with her.
While the children have voiced various complaints about the Father, the expert’s observations were:[20]
121.Observations between the children and their father occurred late in the day by which stage the parties appeared ready to leave. K was extremely tired and required his father to hold and comfort him at different times during the observation period.
122.The children appeared eager to play with their father on the whiteboard, he readily engaged providing guidance and praise to both the children. Whilst with the father there appeared more rivalry between the siblings however he managed this skilfully by allocating the children tasks in a mutual game. The father was observed to highlight skills of each child in a natural way.
123.The father was witnessed to care for K whilst not becoming disconnected from the activities of the elder boys. The children assisted in soothing K, showing him concern and warmth. The interactions of the unit appeared comfortable and familiar, with the father initiating discussions with the children surrounding school and other activities.
124.Both children were observed to seek proximal closeness to their father ensuring that he was positioned in-between them during different activities. The father initiated physical affection with the children which was readily accepted, they frequently patted each other on the arms and back.
125.The observation of interactions was positive, no concerns were noted.
[20] Ibid, at paragraphs 121 – 125.
Parenting and the Discharge of Parenting Responsibilities
In the circumstances of this case, it is convenient to deal under this heading with a number of considerations listed in s 60CC. I consider under this heading, the following paragraphs of s.60CC(3):
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
The difficulty the parties have in this matter to date was they have not been able to agree on long term issues in relation to X’s medical needs.
The Family Report Writer records:[21]
41.The mother believes the father has traits consistent with Narcissistic Personality Disorder (‘NPD’) and feels these traits are becoming more prominent. The mother advised the father is unable to accept any opinion which varies or differs from his, “he demands to be in control of every situation”, “pretends to have more knowledge then even the professionals” and is relentless in so far as, “proving his point”.
[21] Ibid, at paragraph 41.
While I do not accept the Father has traits consistent with Narcissistic Personality Disorder, I do agree that the Father is relentless in “proving his point”. This was apparent in his questioning of both the Mother and Dr V.
I accept the Father has conceded the Mother should have sole parental responsibility for medical issues. I consider this is appropriate.
I note both parents have taken every opportunity to spend time and communicate with the children.
I accept that each parent separately can provide for the needs of the children.
The Family Report Writer expressed a concern about the current arrangements:[22]
127.The parents present to have vastly different beliefs pertaining to health, wellness, and education, additionally their parenting techniques and approaches are polarised. This effectively means under the current arrangement the children experience two households will (sic) little to no similarities. As the children enter adolesces their healthy social, emotional and psychological development will likely be undermined by the present lack of consistency if no change to the arrangement is made.
[22] Ibid, at paragraph 127.
I note these concerns about the boys’ healthy social, emotional and psychological development and I accept that evidence.
Effect of any Changes in the Child’s Circumstances
I have to look at the effect of any change in this child’s circumstances as set out in s 60CC(3)(d).
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
There would be no change if I leave the current arrangements in place.
The Mother’s proposal would see the children separated from their Father for longer periods (ten nights instead of seven), however this is likely to have a positive effect on the children because:
(1)They have expressed a wish to live with their Mother; and
(2)Spending the majority of time in one household will avoid the risks discussed in the preceding section.
The Father sought a very gradual decrease in time, if I am moving away from equal time. I did not see any evidence that this would assist the boys to cope with any change.
PARENTAL RESPONSIBILITY
Under s 61DA, when making a parenting order the Court must apply a presumption that it is in the best interests of the child for their parents to have equal shared parental responsibility for them. The presumption does not apply, however, if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence.
This is not a case where there is evidence that either parent has engaged in abuse of the children or family violence.
However, the vastly different beliefs pertaining to health and education justify an order for sole parental responsibility in relation to the children.
The person who should have that responsibility in relation to education is the parent who cares for the children for the majority of the time.
The Father, to his credit, has conceded the Mother should have sole parental responsibility for medical issues.
CONCLUSION
I consider the orders proposed by the Mother are in the best interests of the children. Those orders are in similar terms to the orders proposed by the ICL.
The Mother proposes an extra night, making the time with the Father four nights instead of the three proposed by the ICL. I consider the extra night is appropriate because it provides substantial and significant time with the Father for the children and the expert conceded it would be appropriate in cross-examination.
The reasons I consider the Mother’s proposal is in the best interests of the children is:
(1)The sole parental responsibility to the Mother for medical and education decisions ensures there will be no protracted disagreements between the parents that might impact the children in relation to those issues.
(2)The children have expressed a preference to spend the majority of their time with the Mother.
(3)The parents’ “vastly different beliefs” on different parenting techniques and approaches do not support a continuation of the current equal time arrangement.
The proposal for week-about time during the school holidays is in the children’s best interests, to ensure they continue to have regular contact with both parents during the long Christmas holidays.
The best place for changeovers that do not occur at school is at a contact centre rather than the service station proposed by the Father.
It is appropriate that the Father’s partner not attend changeover at the service station if D Contact Centre is not available. This is because of the assault on the Mother by Ms F in 2017.
Given there has been an ongoing dispute in relation to X having surgery for ENT issues, it is appropriate that he remains in the Mother’s care post-operatively.
The Mother proposes the parties exchange a hard copy of the Medications Record. This is an order I will make to ensure the children continue to receive their prescribed medication in both homes.
I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cassidy. Associate:
Dated: 25 March 2022
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