DAWKINS & BOREHAM

[2019] FamCA 485

FAMILY COURT OF AUSTRALIA

DAWKINS & BOREHAM [2019] FamCA 485

FAMILY LAW – FINAL PARENTING ORDERS – where proposed medical intervention is therapeutic – where authority for child to undergo an operation is a matter where the sole parental responsibility is of the mother – injunction to prevent father interference with operation – costs.

Family Law Act 1975 (Cth)
APPLICANT:	Ms Dawkins

RESPONDENT: Mr Boreham

INDEPENDENT CHILDREN’S LAWYER: Angela Altavilla

FILE NUMBER: MLC 8489 of 2009

DATE DELIVERED: 29 May 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 29 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Weil

SOLICITOR FOR THE APPLICANT: Berger Kordos Lawyers

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Jenkinson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Altavilla Family Law

Orders

1. Pursuant to Section 68B of the Family Law Act 1975 the father , Mr Boreham, and his servants and agents be restrained by injunction from:-

   (a) Communicating with, or causing another individual to communicate with:-

   (i)the child X born in… 2005 (“the child”); and

   (ii)any medical professional who has the care of the child, or who is otherwise treating or giving medical advice to or in relation to the child;

   about the child’s medical condition or treatment;

   (b) Instructing, engaging or otherwise directing any individual, organisation or entity, including the child’s schools, to do anything which would infringe or impact upon the mother’s ability to exercise sole parental responsibility for the child.

2. The mother be permitted to provide a copy of this Order to any individual organisation or entity who requires confirmation that the father is restrained by injunction in the terms as contained in paragraph 1 herein, but only if it relates to that individual, organisation or entity acting upon the mother’s instructions when exercising her sole parental responsibility for the child.

3. The husband pay the wife’s costs of and incidental to this application fixed in the sum of $9,456, such payment to be made within 30 days.

4. That pursuant to Sections 65DA(2) and 62B the particulars and 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS DIRECTED:

1. That the letter from the practitioner for the mother dated 10 May 2019 to the father be marked Exhibit “…” and remain on the Court file.

2. The Scale of Costs of the provided by counsel for the mother be marked Exhibit “…” and remain on the Court file.

3. The letter from Dr BB, Surgeon to the father dated 22 November 2016 be marked Exhibit “…” and remain on the Court file.

IT IS FURTHER ORDERED THAT:

1. My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.

2. Otherwise all extant applications be and are hereby dismissed.

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 Dawkins & Boreham 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 MELBOURNE

FILE NUMBER: MLC 8489 OF 2009

Ms Dawkins

Applicant

And

Mr Boreham

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me as the final defended hearing of the mother’s application, filed on 23 January 2019, in which she seeks that the father be enjoined from, in summary, communicating with or interfering with her authorisation of a surgical intervention for their daughter X, born in 2005.  The operation proposed is surgery to correct a tightening of X’s calf muscles.  The evidence satisfies me that X has a condition which is causing her pain and for which there is a correcting surgical procedure.

2. By response filed on 4 March 2019, the father appeased the mother’s application and sought some other orders. However, he did not seek a discharge of the Order that the mother have sole parental responsibility. Accordingly, I regard the controversy as confined to the orders sought and not one in respect of which s 61DA of the Family Law Act 1975 (Cth) (“the Act”) requires me to apply the presumption referred to therein. 

3. The mother’s application is supported by an affidavit, sworn or affirmed by her on 22 January 2019.  In that affidavit, she provides a history of the proceedings, including a series of costs orders previously made against the husband which were not satisfied upon the father being declared bankrupt.  There were further proceedings and a set of Final Orders made in this matter on 23 September 2014, entitling the father to spend time with the child.  He last exercised time with the child in 2017. 

4. There were proceedings in 2016 and Final Orders made by me in 2018.  Pursuant to the Final Order the mother has sole parental responsibility.  At the time of making those Orders, the surgery with which this proceeding is concerned was contemplated by the mother.  Ultimately, the father did not attend Court to oppose either the mother’s then application or the surgery.  The factual context for the mother’s application is also deposed to by her and it is that the child was being treated by a Dr BB from the JJ Hospital, who recommended surgery if the child’s pain persisted.

5. The mother deposes:

   “In or about October 2018, after Final Orders were varied on 11 July 2018 granting me sole parental responsibility, I made an appointment for the child to attend upon Dr BB to review the child’s situation and attempt Botox injections one last time.  I then attended upon Dr BB a second time at which point it was recommended that the child proceed with the orthopaedic procedure.

   I made an appointment for the procedure to occur on Thursday 6 December 2018. 

   In the days leading up to the surgery, I was advised by Dr BB’s practice that the Father had contacted him and made threats to him and further that the Father’s sister, Ms PC, who is in the Public Service also had written to Dr BB advising him that she was in the Public Service amongst other things.

   I had requested copies of this correspondence from Dr BB however he advised due to confidentiality reasons he could not provide them. He subsequently provided them to my solicitors after my solicitors sent a letter to his practice.  

   Subsequent to receiving those documents, Dr BB sent an email confirming that he would not be performing the surgery.  That email provides as follows: 

   “[Dr FF],

   By now I have received two letters one from the father one from an aunt who made it clear to me that she has worked in the public service for more two decades. I decided after two letters that I do not want to proceed with surgery. I am relocating to Country DD in the first semester of 2019. I do not feel at all comfortable with the whole situation – period. I feel deeply sorry for [X] though, but I do not feel I should place my life and that if [sic] my family and my career at risk due to issues outside of my control. I am sorry but I have canceled [sic] the surgery…”

   The child continues to not receive the medical treatment required and of which has been recommended for in excess of 2 years. 

   In relation to Ms PC, I understand she has previously been reprimanded for her conduct during her employment in the Public Service.  I have made a statement to the police in relation to her conduct and understand she is currently under investigation.

   I have now been forced to obtain further referrals for the child to undergo the relevant treatment however note that I am effectively starting the process again.  I have already been advised by Dr BB that it is unlikely that anyone will perform the surgery if the Father makes the same threats to them.

   On or about 10 December 2018, I was contacted by a social worker to perform a welfare check on the child and myself.  The social worker indicated they had concerns as to the child’s and my welfare and were alerted to a potential threat.  I understand the social worker was engaged by or on behalf of the JJ Hospital, however I am not certain.  I did not make any reports or notifications to the JJ Hospital in this regard and believe that it was solely initiated by Dr BB.  I have since bene informed by the Hospital that they have made a file note confirming that staff are not to contact the Father.  

   I am seriously concerned about the child’s ongoing welfare and health if the Father continues to involve himself in relation to parental decisions regarding the child, in circumstances where I have sole parental responsibility and where he historically has been unable to place the child’s best interests first. 

   Up until recently, the child has been progressing well in all aspects of her life save for her pain associated with her legs, but since the cancellation of her surgery, I have seen her frequently upset and occasionally distressed.  The child has told me she has received emails from the Father’s partner’s daughter containing photos of the Father’s bicep which shows the word “X.”  The child was visibly upset when she told me about this email. 

   I have been advised by Dr BB that if the child does not have the surgery as soon as possible, it could negatively impact her growth and development as she enters adolescence.”

6. The father was served with the mother’s application and filed a response to the initiating application on 4 March 2019.  In that application, the father sought a dismissal of the mother’s application for an injunction against him, he sought an injunction against the mother requesting or instructing anyone to prevent correspondence or notifications from him, including to the school or treating physicians, some order which is not entirely clear in relation to the mother keeping him informed of significant parental decisions in relation to the child and finally “in the absence of myself and if deemed appropriate, the Court appoint case management to monitor the welfare of the child until she is of legal age”.  As to the last order sought, the father cannot point to any jurisdiction which I would exercise to do so or any person who could manage the proceedings. 

7. The father’s affidavit in support of his response was sworn or affirmed on 4 March 2019.  The most significant paragraph of that affidavit in my view is paragraph 37, which reads as follows:

   “This surgery is “elective” and is neither necessary nor detrimental to [X]’s growth or development. I know this to be true for 3 reasons –

   -    [Dr BB] explained this to me himself;

   -    [Dr BB] would not have so quickly cancelled without further consultation with me, and;

   -    [Dr BB] also would not state that [X] could make up her own mind when she turned 18, if it were indeed detrimental to her growth and development.”

8. When the matter came before me on 12 March 2019, the father appeared in person and Dr HH of Counsel appeared for the mother, who attended Court.  The matter was discussed at some length.  It was apparent that, as the mother had sole parental responsibility, she had the requisite authority to authorise any therapeutic treatment for the child but, in endeavouring to do so, she had been apparently prevented from obtaining that treatment, at least from one particular surgeon.  The father contended that the operation which was proposed the child have was not therapeutic in nature but was elective surgery. 

9. Neither party had any direct medical evidence about whether the surgery was therapeutic or elective. The general evidence about diagnosis which was relied upon by the mother and admissible under the relaxed provisions of the Act in relation to parenting matters was slightly out of date. The father’s was even more out of date. I was concerned that the proceedings would continue at considerable expense to one or both parties when the matter in issue was actually the nature of the proposed medical intervention. In this respect, there was the following discussion between myself and the father:

   [Mr Boreham]: “No, if – if we’re going to go down that track, your Honour, you’re already telling me that if I don’t have the money to proceed with this and – and stand up for my daughter’s rights, you’re warning me already that there’s going to be costs, and I’m going to bear those costs.”

   HER HONOUR: “If you can misconstrue what I say to that extent, then I’m not satisfied that you can’t misconstrue what a doctor says to you.”

   [Mr Boreham]: “I spoke to…”

   HER HONOUR: “What I am telling you is that I can appoint an independent children’s lawyer who will get a specialist to look at her. It may well be that your daughter goes to one of the specialists she has gone to before, and I’m thinking of [Associate Professor] AA, because she’s familiar with him, and then the matter will come back to court. But if it turns out to be a procedure she should have, then the mother can authorise it, and you won’t have a say in it. What I don’t want to have happen is that at that point you just don’t turn up, which means that we’ve gone through this extra expense, and you’re not there to fight it.”

   [Mr Boreham]: “I did take the time to speak to the surgeons, you Honour.”

   HER HONOUR: “Yes, thank you. Sit down. I’m asking you to sit down because, essentially, I’m going to rule in your favour. [Dr HH], it seems to me that there should be an independent children’s lawyer, and the child should be seen.”

   I delivered reasons for decision which were subsequently reported under case neutral citation [2019] FamCA 229. I incorporate those reasons into these reasons.

10. On 15 April 2019 Acting Professor AA prepared a report which was subsequently filed in these proceedings under cover of his affidavit of 1 May 2019.  The report was duly published to the parents.  The report says inter alia:

    “On the 22nd of February 2019 I reviewed [X] again. She was now 13 years of age, she had significant flat footedness with a midfoot break associated with her tight calves. There had been significant progression since I last saw her, the calves were becoming tighter and her foot flatter. She was now not able to be accommodated with orthoses because of the calf tightness and it was still my recommendation that she underwent [the surgery] [sic] followed by moulded insoles.

    [Ms Dawkins] had indicated that they wish to go ahead with the surgery and I thought that was reasonable. I talked through this procedure with [X], what we need to do at the time of surgery and her recovery and I thought she was certainly mature enough to  understand what was being done and the underlying reasons and would be able to tolerate what was a relatively minor surgical procedure very well.”

11. At the beginning of the day the father said that he required Dr AA for cross‑examination.  I directed that his questions for Dr AA be emailed to Dr AA and that the professor then communicate through the Independent Children’s Lawyer whether he maintained his recommendation for surgery to occur.  That happened and I am advised that Professor AA holds to his recommendation that the surgery should be performed. The father desists with his opposition.  The two‑day hearing for which this matter was set down has not been necessary because the father has decided not to oppose the surgery and has consented – or has not opposed - orders in the terms of the mother’s initiating application.  I will make those Orders.  I am satisfied that it is in the child’s best interests to do so.

12. The only order now sought by the father (save as to costs) is for the Court “to appoint a case manager to monitor the welfare of the child until she is of legal age.”  This is not relief I can make so I dismiss that part of the father’s response.

13. The mother is entitled to the orders she seeks and now makes an application for costs.  She does not, sensibly in my view, press for indemnity costs.  This case, whilst it has involved a very high outlay of funds for the mother, does not meet the requirement of being of an exceptional nature such as would attract orders for indemnity costs.

14. Costs are sought in the sum of $9456 and a memorandum of those costs was provided to the father earlier today, drawn in accordance with the scale to the Family Law Rules. I mark that “M2” and direct that it remain on the Court file.

15. The prima facie position in family law proceedings is that each party bear their own costs unless the Court is satisfied that there are circumstances which warrant a costs order being made. In this case I am comfortably satisfied that a costs Order is warranted, due mainly to the fact that the father has been unsuccessful in the proceedings. In considering what order, if any, I should make in relation to the costs, I am mandated to have regard to the matters under section 117(2A) of the Act and I do so.

16. The father says that he is in a significantly inferior financial position to that of the mother.  The mother is not employed, she is married.  The father points to historically having had the advantage of financial support from her parents for these proceedings.  There is no evidence as to that.  In any event, impecuniosity or an inferior financial position is not an excuse (or a green light) to making the other party incur costs in legal proceedings which are not warranted and proceedings in which one party has been unsuccessful.  The father’s financial position may well be inferior to that of the mother, but I am far from satisfied that the mother has such resources at her disposal that she can afford to incur costs which need not to have been incurred. 

    RECORDED  :  NOT TRANSCRIBED

17. The next matter which I take into account is whether either party is in receipt of legal assistance.  The father said that he was previously but is not now.  The mother funds her own case. 

18. I take into account the conduct of the parties to the proceedings and it was submitted by Mr Weil for the wife that the father, whilst filing an affidavit of considerable length, effectively provided no cogent evidence in support of his opposition to the orders sought by the mother and to the operation which the mother proposes that the child undergo.  I agree with that submission.  It does not behove the father to have at the first hearing of this matter said that he had evidence which would satisfy the court that this was not a therapeutic procedure but an elective procedure and then proceed with the case without adducing any such evidence.  The treating doctor has confirmed that the surgery was not only therapeutic but appropriate.  I am satisfied that it is not elective.

19. The proceedings were not necessitated by the failure of a party to comply with previous Orders of the Court. However, I am mindful that the procedure which the wife sought to have done for the child was a matter comfortably and well within her authority as the parent with sole parental responsibility for the child. It was that with which the father interfered and prevented happening. I take into account the fact that the father has been wholly unsuccessful in the proceedings in the context of section 117(2A)(e) of the Act.

20. The next factor is whether there has been an offer in writing to settle the proceedings and the terms of any such offer.  Exhibit “…” is a letter from the mother’s practitioners to the father dated 10 May 2019 which refers to Professor AA’s report – which by then had been filed and served.  The letter is dated and, inter alia states:

    “In light of the Report received and the historical correspondence and issues in this case, we propose that all parties consent to the Orders as sought by our client in an attempt to avoid the Final Hearing, thereby saving any associated legal costs and ensuring that [Professor AA] does not have to charge for his attendance at Court that day, whether by telephone or otherwise.

    If you do not consent to the above proposal, we will be producing this letter to the Court at the Final Hearing in support of an Application of indemnity costs against you. We confirm that our client’s costs to date for this Application are approximately $16, 580. We will be seeking the totality of these costs to be paid by you in addition to the balance of our client’s legal fees and anticipated Counsel’s costs of approximately $12,500 if the matter proceeds to the Final Hearing.

    We request that you respond to this letter by no later than noon on Tuesday, 14 May 2019.

    We have also copied the Independent Children’s Layer into this correspondence.”

1. In my view, the matters which I am required to take into account all support the mother’s application for costs.  I will make an Order against the father accordingly. 

2. Turning to the quantum of costs:  as indicated, they are not sought on an indemnity basis, they are sought on a party/party basis.  The scale of costs appears to have been appropriately deployed.  The father makes no objection to the calculations.  I have had the benefit of having some items explained to me and, upon explanation, my distinct impression is that the costs are, if anything, conservative. 

3. The amount of costs claimed is $9456.  I consider that that is the appropriate amount of costs which should be ordered in this matter.  I make that Order.

   RECORDED  :  NOT TRANSCRIBED

4. I have asked the father what time he would like to pay; he says it does not matter because he has not got the money to pay, so I will make the costs payable at the expiration of 30 days.

5. The father left Court abruptly but following me pronouncing the Orders but he was here to hear the gist of them.

CONCLUSION

1. I am satisfied on the uncontested evidence that the procedure which the mother proposes be performed on X is therapeutic and that it is, accordingly, within the sole power or responsibility of the mother to authorise it.

2. I am also satisfied that the father has previously sought to interfere with the mother’s exercise of parental responsibility in relation to the operation and should be restrained from doing so again. I make the orders sought by the mother.

3. I am satisfied that the father should pay the mother’s costs, as assessed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 29 May 2019.

Associate: 

Date:  23 July 2019