Daniels and Custer

[2009] FamCA 351

FAMILY COURT OF AUSTRALIA

DANIELS & CUSTER [2009] FamCA 351

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time

Family Law Act 1975 (Cth)

APPLICANT: MR DANIELS

RESPONDENT: MS CUSTER

FILE NUMBER: PAC 622 of 2009

DATE DELIVERED: 16 MARCH 2009

PLACE DELIVERED: PARRAMATTA

PLACE HEARD: PARRAMATTA

JUDGMENT OF: JUDICIAL REGISTRAR LOUGHNAN

HEARING DATE: 16 MARCH 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schonnell

SOLICITOR FOR THE APPLICANT: Coleman & Greig

SOLICITOR FOR THE RESPONDENT: Lamrocks Solicitors

Orders

1. That the parties attend a Child Dispute Conference at times and dates appointed by the Manager, Child Dispute Services AND the Court requested that the matter have some priority.

2. That these proceedings be adjourned to the Judicial Registrar's Call-over at 9:30 am on 4 May 2009.

3. Until further order the child … born … March 2003 (“the child”) live with the father each Friday from the conclusion of school to the commencement of school on the following Monday, or the following Tuesday in the event that Monday is a pupil free day.

4. Until further order the child live with the father during school holidays for one half of each school holidays as agreed between the parties and in the event that they cannot agree from the conclusion of school on Easter Thursday, 6 April 2009, until 7:00 pm on Friday, 17 April 2009.

5. That the weekend regime commence again on the first weekend of the new school term.

6. That at all other times unless the parties agree to the contrary, the child is to live with the mother.

7. Until further order the mother be restrained from consuming alcohol during the time the child is with her or for a period of up to 12 hours prior to any such time.

8. That the child … born … March 2003 be represented AND the Court requested the Legal Aid Commission of NSW make as soon as practicable for appropriate representation for the child.

9. The solicitor for the mother is to advise the Senior Solicitor, Family Law Litigation Section of the Legal Aid Commission of NSW of that order within 24 hours.

10. Each party make available to the Legal Aid Commission of New South Wales, within 7 days, copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports

11. The Court requested that if practicable prior to the adjourned date, the Independent Children's Lawyer speak to the child’s treating specialist Dr A at the Children’s Hospital at Westmead in respect of the management of her condition.

12. That the parties file and serve any updating affidavit in relation to these proceedings not later than 30 April 2009.

13. Leave to the father to issue three further subpoenas.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER:  PAC622 of 2009

MR DANIELS

Applicant

And

MS CUSTER

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to a child, a daughter, born in March 2003, so she’s just gone 6 years of age.  I think the father is 25 and the mother is 22.  They started to live together in December 2002.  I’m not sure when they separated.  The father says March 2004 in his application, January 2004 in his affidavit and the police were told it was 2003.

2. The child currently lives with the mother during the week and the father on the weekends.  The father would like that changed so that the child has day only time, one day a week with the mother and the mother wants the child to see the father each alternate weekend and overnight on a Wednesday.

3. The child suffers from a condition Phenylketonuria, (PKU). It is an inability of the body to process Phenylalanines.  I think this is the reason for the Guthrie Test when children are born.  The parties were advised by a letter of 31 March 2003 of the diagnosis. It is a genetic condition and the initial advice letter which was around the time the child was a couple of weeks of age, reported very high levels, referred to as PHE levels. The letter said:

   Our aim is to keep [the child’s] PHE levels between 100 and 350 units per litre.  Phenylalanine is derived from proteins in our diet.  It’s essential for the normal growth development function of our bodies.  To much is harmful …

   And the gist of it is that the child doesn’t have the ability to break down the excess of that derivative of protein:

   Her diet must be carefully controlled so that she receives just sufficient of the Phenylalanine to meet her body’s needs.  More than that can result in an accumulation to toxic levels capable of causing brain damage and intellectual disability.

   It’s essential says the doctor that:

   An appropriate diet is established and adhered to throughout childhood.

4. And the doctor reported that over the time the child had very high levels at birth, 1200 and then 2380. That came down to 360 after a few days of appropriate formula.

5. This is effectively the first time the matter comes before the court to have any sort of interim hearing and the normal regime is that the parties would attend a family relationship centre.  Once they’ve been through the regime there they file in the court.  The court would have the parties go to a Family Consultant.  The Consultant would make recommendations about urgent matters and help plan some long term things, remembering that the Consultant will be an expert in the case in the normal course. If needed there may then be an interim hearing and then we leave things in place until a final hearing.

6. The parties first saw a Consultant today. Dr H recommended a judicial decision is required.  He recommended an external expert’s report.  He hasn’t marked that an Independent Child Lawyer should be appointed but it seems to me that that should happen. He did not recommend anything else.  He has not made a notification of risk of abuse for example.

7. The parties have a certificate from a family relationship centre but it’s a certificate of non-compliance - the father didn’t attend.

8. The father has filed a notice of abuse, perhaps that’s why Dr H didn’t do anything) and that causes a report to the Department of Community Services.  I have not been told that either of the parties has been contacted by the Department.

9. I’ve suggested to the parties earlier today that normally we would have an independent child lawyer, particularly when there is a medical aspect of the case. Usually that lawyer would be the person marshalling external evidence from experts.

10. I was told on behalf of the father that if read the evidence it would be sufficient for some action to be taken today, notwithstanding that the father hadn’t taken action previously.  I have read the material and it is quite worrying.

11. There are two sources of concern. Both relate to the child’s health.  The mother has been the primary care giver of the child since separation, so for five years or so. The evidence is that the the PHE levels in the child’s blood are consistently outside the range described by the treating specialist.

12. There are a couple of occasions here and there when the levels are close to normal or within that range that’s been described.  For example for a period from February 2007 till October 2008, weekly/fortnightly results show nine results within the range but some as high as 930.

13. There has been some testing undertaken in the father’s household. That is not much help for forensic purposes because we don’t know the circumstances under which this testing was undertaken, we don’t know or have evidence when it was taken in the day, we don’t have any evidence as to whether there were any other results that haven’t been reported. Those results suggest that there have been very few occasions, in either household, when the child has been within an acceptable level.

14. The father’s case in this regard, rests of the fact that the level tends to come down during the time that the child is with him. These results span February 2008 to December 2008. Some of them cover a weekend. There is a Friday result and a Sunday result. For example on 30 May when the child came to the father the result was 840.  On the day the child left it was 670. The child came to the father in November and the result was 1030. On the day the child left the child was at 630.  There are only two times that we have results that span a weekend.

15. The problem with that, as I’ve canvassed with the parties’ legal representatives is that we do not know how important those results are. There is nothing from Dr A to say, for example, ‘when a child is 6 years of age a variance of plus or minus 600 is or is not a problem’. We don’t have anything. We have some evidence to suggest that the current arrangement is not unacceptable. On the other hand, Dr A has been supportive of the mother’s care, while still making reference to the need for the child’s levels to come down.

16. Now that can be addressed. Dr A can be involved in this and we can get some information from him one way or the other about it.

17. The other problem is that the bare facts might explain the different levels. For example – it might be that it is easier to control the levels on a weekend day rather than on a week day when the child is at school. The mother has given some evidence about that.  She gives some evidence about the child not eating the meal prepared for her and about the child not taking the formula. The mother discovered that the child has been accessing the school tuckshop and there is a suggestion that the child may have been accessing other children’s food.

18. Therefore it is not as simple as saying there is a direct correlation between the circumstances on a weekday and the circumstances on a weekend.

19. The father has not acted in a timely way about this. He could have addressed these things directly with Dr A.  He could have spoken to the doctor and discovered what the level has to be, what the clinical consequences are if the results are at a certain level and so on. That was not done. As counsel for the father said, that is not the end of the inquiry,. The fact that he did not act, does not relieve me of my obligations.

20. The second aspect of concern raised by the father is a fairly chaotic series of circumstances in the mother’s life whereby she has been involved in violent assault.  She has had some significant involvement with the police.  There is a COPS record, this is just about incidents not findings of a court, from 2000 through to 2009. In 2000 the mother was accused in relation to truancy, assault, being the victim of a theft, a person of interest in a domestic violence incident, person of interest in an assault, victim of an assault and so on.  Right through to recent times.

21. There have been recent incidents that the parties have given evidence about of violence involving the mother. The mother is quite candid about it.  She has been involved in violent incidents with her sister, a friend and a previous partner. One could not be satisfied that in all of those circumstances, the child has always been protected in relation to those events.

22. It is the father’s case that although he was involved in the most recent event, he did not know the worst of it. The father says he was driving the mother and a friend and another child, to a dentist appointment for the child. The mother tried to get out of the car. She struck the father.  He swerved across three lanes of traffic.  The police were involved and at the end of the day the police took no action. There is an observation from the police that the physical evidence more supported the mother’s version of events because of a bruise observed on her leg. The mother asserts that she was being retained in the vehicle and that was why she struck out.

23. None of those actions is in the best interest of a child.

24. Are those circumstances such as should result in a change in a parenting arrangement that has been left in place for years. On balance, I think not.  There is a halfway house offered on behalf of the father, that is that we give him a chance to work on the daytime arrangements as far as the child’s PHE levels go and extend his time into the school week. 

25. The problem is that parents can make decisions about children without any evidence and without any information.  If I am to intervene then I should be reasonably confident that it will make things better. The argument in support of action boils down to - there is no evidence from the mother that the child is in danger in the father’s household and there are a raft of things by way of medical material and chaotic lifestyle issues that suggest that the child is in danger in the mother’s household.

26. The trouble is you don’t know what you don’t know. I don’t know what impact will be made on the child if I change the current arrangements.  I’m nowhere near knowing anything about the medical issue and in respect of mother’s circumstances, the father has taken no previous action to address his concern. He knows the mother quite well and his judgment about that, staying his hand might have been a correct one.  

27. He is a serving member of the Australian Defence Force.  That involved him in placements, on average, three months of every year.  He has applied and has the approval of his commanding officer to move to a pay section. He plans to study accountancy and those qualifications would fit him for increments of promotion in that area. If that change is made he would be available to the child.

28. The existing position has not prevented contact with his family.  The child has been with the father’s family during his overseas placements.

29. I am not comfortable enough that I can make a change to the orders that is unambiguously in the best interest of this child at this stage.

30. There are a number of other issues. There is an issue about the mother smoking in the presence of the child. There is an allegation about the mother’s excessive consumption of alcohol and that would make some sense of the things that are referred to in the police material.

31. I will make an order that she not consume alcohol when the child is with her or during a period of 12 hours prior to any time when the child is with her.

32. Parenting is a high level function.  It is more complicated than driving a motor vehicle. You are not allowed to drive a motor vehicle when you’re drunk. Further, the child is not your average 6 year old. So if you’re not on top of your game and there are issues about the child’s diet on a daily basis, those things need to be addressed.

33. No criticism can be made by a court about somebody being the victim of a violent assault.  Some criticism can be made about somebody who initiates violence or doesn’t do anything to avoid it. What we do ask of parents is that their first thought is to put a child in a safe place.  Then they address those other issues. Lives differ but when the court comes to look at the parties and the propositions they put forward for the future, the court is going to be looking at an arrangement whereby this little girl can get back to being a 6 year old and not have to worry about horrible things happening.

34. The truth of it is, even if her blood levels haven’t caused problems, being exposed to violence, being in the environmental of violence, seeing awful things happen to her mother, will have caused her some damage.  So that has to stop.

35. The child needs to be represented.  That’s going to take a month or so.  We will head for 4 May 2009 if that’s a suitable date and I’ll get you Ms Baumgarten to speak to the Independent Child Lawyer, I’m sure Mr Schonell’s instructing attorneys will do too, to make sure that by the date, the Independent Child Lawyer has had a chance to speak to the doctor.

36. It might be that there is no report available but I’d like in this case for the Independent Child Lawyer to hit the ground running.  If anybody, if the ICL or either of the parties thinks that is not a convenient date just speak to my associate. We could do 20 April or 18 May. There is no special magic about it, the critical thing is that we don’t have a wasted court appearance.

37. It would be sensible if blood tests are taken and that a record is kept and be provided in any updating affidavit.

I certify that the preceding thirty seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan

Associate: 

Date:  4 May 2009