DREWETT & WELSH

[2018] FamCA 57

FAMILY COURT OF AUSTRALIA

DREWETT & WELSH [2018] FamCA 57

FAMILY LAW – CHILDREN – With whom the child lives – Best Interests – Interim parenting orders – Where the parties are in conflict as to whether the child takes medication – Where the child has resettled into a new home and school a significant distance from the other party – Where there are allegations of family violence and neglect

FAMILY LAW – CHILDREN – With whom a child lives – Child’s views – Where the court is asked to consider the wishes of the child – Where the court cannot give significant weight to the views of the child – where the best interests of the child is the paramount consideration

FAMILY LAW – CHILDREN – With whom a child spends time – Where equal time would not be practicable due to the substantial distance between the homes of each of the parties – Where the parties have agreed to orders by consent

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65D, 61DAA

Goode & Goode (2006) FLC 93-286
Keats & Keats [2016] FamCAFC 156
Marvel v Marvel [2010] FamCAFC 101
MRR v GR (2010) HCA 4

APPLICANT: Mr Drewett

RESPONDENT: Ms Welsh

INDEPENDENT CHILDREN’S LAWYER: Richard Croft

FILE NUMBER: ADC 3197 of 2009

DATE DELIVERED: 9 February 2018

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 1 February 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Pyke QC

SOLICITOR FOR THE APPLICANT: Marie Taylor Lawyers

COUNSEL FOR THE RESPONDENT: Mr Hemsley

SOLICITOR FOR THE RESPONDENT: Angela Ferdinandy

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mrs West

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Richard Croft

UNTIL FURTHER ORDER

1. Paragraphs 3 and 4 of the orders made 8 September 2014 be suspended.

2. That K born … 2006 (“the child”) shall live with the father.

3. The child shall spend time with the mother:-

   (a)In the short school holidays at the conclusion of Term 1 for a period of ten (10) days from the first Saturday until the second Tuesday SAVE AND EXCEPT where Easter falls during the beginning of the Term 1 school holiday period THEN the mother’s time will commence at 7 pm on Maundy Thursday in even numbered years and each alternate year thereafter and conclude ten (10) days later at 12 noon; 

   (b)Should Easter fall in the week preceding the Term 1 school holidays in even numbered years THEN the mother’s Term 1 holiday time will commence on the first Wednesday and conclude on the last Saturday of the school holiday period;

   (c)During school terms from 7 pm Friday to 3 pm Sunday on the third and seventh weekend of each term;

   (d)From the conclusion of school on Friday to 5pm on Sunday on one additional weekend per school term when the mother is visiting in I Town PROVIDED that she gives fourteen (14) days’ notice;

   (e)       In the short school holidays at the conclusion of Term 2 for a period of eight (8) days and at the conclusion of Term 3 for a period of ten (10) days with each period to commence on the first Saturday of the holidays; and

   (f)At such other times as may be agreed between the parties.

4. That the mother shall have telephone or Skype communication with the child on Wednesday and Sunday of each week, on the child’s birthday, the mother’s birthday, New Year’s Eve and Christmas Day, with the call to be initiated by the mother and facilitated by the father between 6.30 pm and 7 pm.

5. That the father shall have telephone or Skype communication with the child on Wednesday and Sunday of each week, on the child’s birthday, the father’s birthday, New Year’s Eve and Christmas Day, with the call to be initiated by the father and facilitated by the mother between 6.30 pm and 7 pm.

6. That the parties shall facilitate any reasonable request made by the child to telephone or communicate with the other parent and shall not supervise, interfere or listen in on any telephone or Skype communication between the child and the other parent.

7. That the parties do all things necessary to authorise the principal or officer in charge of administration at the DD School, I Town to provide all information in respect of the K born … 2006 as may be requested by each of them (provided if there is any attendant cost to the provision of such information THEN it shall be borne by the requesting party).

8. That the parties shall ensure that no later than 8 June 2018 the child shall attend upon his paediatrician Dr A for a review and written report of his paediatric needs, with the parties to provide information from the child’s school as to his academic performance and behaviour issues and such further information or input as may be requested by Dr A and the parties shall inform the other of such appointment NOTING THAT the parties shall specifically request Dr A to comment on whether future medication for ADHD is warranted.

9. That the Independent Children’s Lawyer obtain such information as may be available from the child’s school as to his academic performance and any report or assessment adverse or otherwise as to the child’s behaviour, regulation and peer socialisation.

10. That following the preparation of the paediatric report and at the election of the Independent Children’s Lawyer (“ICL”), any update or addendum report from Ms EE (“the family consultant”), liberty is given to either of the parties or the ICL to relist the application at short notice.

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 Drewett & Welsh has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3197  of 2009

Mr Drewett

Applicant

And

Ms Welsh

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. Mr Drewett (“the father”) and Ms Welsh (“the mother”) remain in dispute in respect of the ongoing parenting arrangements for K born in 2006 (“the child”).

2. They reached agreement as to final orders on 4 August 2010, but were again in conflict consequent upon the father filing an Initiating Application on 28 March 2012.  Those proceedings were resolved by final orders made 8 September 2014.

3. The orders provided for the parties to have equal shared parental responsibility for the child, that he live primarily with the mother but spend significant time with the father taking into account the mother’s residence in the metropolitan area of Adelaide and the father taking up residence in I Town.

4. As is the subject of notation, the parties remain in dispute as to whether the child suffers from Attention Deficit Hyperactivity Disorder (“ADHD”) and if so whether the condition is properly treated or managed by amphetamine based medication.

5. There is a long and conflicted history pertaining to the child’s health with the unfortunate result that to the extent as may be required by the child, there has not been continuity of care.

6. By Initiating Application filed 12 October 2017, the father seeks that by way of final orders paragraphs 2 to 15 inclusive and 18 of the final orders made 8 September 2014 be discharged, that he shall have the sole parental responsibility for the child and for the child to live in his primary care.

7. It is likely an oversight that the father omitted to seek orders that the child would spend time with the mother.

8. The listing of the father’s application was promoted to be a matter of urgency.

9. The father contends that since the final orders of 2014, the child has expressed unhappiness at residing in the mother’s home and complains that he has been neglected by the mother, that there has been aggressive interaction involving the mother hitting the child with both a wooden and metal spoon and that he has not been permitted to engage in sport or extra-curricular activities.

10. It was further alleged that his engagement at his then school was problematic.  The child’s behaviour was purported to be poor and it was uncontroversial that the child suffered poor school attendance and aggressive behaviour.

11. The father summarises his concerns under the following topics:-

    ·Neglect

    ·Physical abuse and punishment

    ·School attendance and other school issues

    ·Lack of activity and friends

    ·Emotional abuse and isolation

12. The father does not agree the child should be obliged to take amphetamine based medication and asserts that when in his care medication is not provided and the child’s behaviour and social interaction is without the alleged oppositional and defiant behaviour experienced by the mother in her home.

13. The father was informed that the child had expressed a wish to live with the father in I Town and following an investigation into an allegation that the mother may have assaulted the child by smacking him with a wooden spoon, the father made the decision to retain the child in his care.

14. Subject to orders made on 17 November 2017 which provided for the child to spend extended block time with the mother over the Christmas school holidays, the child has remained in the father’s care since 29 September 2017.

15. By Response filed 27 October 2017, the mother seeks final orders that the father’s application be dismissed and that she be permitted to re-engage the child with health professionals who had historically assisted the mother and the child in respect of his behavioural management.

16. By way of interim orders the mother sought that the father return the child to her care.

17. The mother accepts that the child presents with ADHD and strongly supports the child’s condition being treated with medication.

18. The parties remain in high conflict over the accuracy of the child’s diagnosis of ADHD.

19. It is difficult to reconcile the opposing views of the parties.  For his part, the father promotes the child as strongly seeking to reside with the father and seeking to reject ongoing medication.

20. The mother does not agree that the child has expressed a strong view to reside with the father. The mother suggests that even if the child did, little or no weight should be attached to that view.  The mother considers the child to be immature and prone to lying. The mother relies upon the objective evidence of the observations of school teachers and the diagnosis of various medical practitioners, in particular the paediatrician who currently is involved with the child’s care and management.

21. The mother seeks to place the father’s allegations of abuse into context and considers that the father’s allegations are the latest manifestation of a long course of conduct by the father to have the child remain in his primary care.

INTERIM PARENTING

1. In Marvel v Marvel [2010] FamCAFC 101 the Full Court considered the appropriate conduct together with the limitations of an interim hearing:-

   [120]   As has frequently been emphasised interim parenting procedures, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders.  Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted.  This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children.  Interim parenting orders are frequently modified or changed after final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (section 61DB).

   …

   [122]In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the findings will be born out after a full testing of the evidence.

   [123]Later, at [100] their Honours amplified their comments and said:

   The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested.  Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.  It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

2. In Keats & Keats [2016] FamCAFC 156 the Full Court noted:-

   [9]…The principles that emerge from such cases as SS & AH [2010] FamCAFC 13, namely, that apart from relying upon the uncontroversial or agreed facts, a judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.

PROPOSALS OF THE PARTIES

1. At the commencement of the hearing Queens Counsel for the father tendered a draft Minute of Order that retained the ancillary orders as currently provided for but the care arrangements to change such that the father would have the sole parental responsibility for the child, that the child would live with him and spend time with the mother on the third and seventh weekend of each school term and one half of school holidays together with time on special occasions.

2. In submissions, the father resiled from sole parental responsibility and conceded that there was no basis for the parties to maintain other than equal shared parental responsibility.

3. The mother’s proposal was to seek the re-instatement of the final orders, but with the knowledge that if the child is returned to her care he will be enrolled in a different school.

4. There appears to be no good reason why the Court should interfere with the current order for parental responsibility and whilst this would trigger the operation of s 65D of the Family Law Act 1975 (Cth) (“the Act”), the parties agree that an order for equal time would not be reasonably practicable given the substantial distance between the homes of each of the parties.

5. Given that the current order for parental responsibility is made by consent, the Court is in any event relieved of any obligation to consider equal or substantial and significant time [s 61DAA].

CURRENT ARRANGEMENTS

1. The father does not administer medication to the child.  It is his observation that there is no significant adverse or oppositional behaviour with the child and he reports that the child is developing normally with a regular sleep pattern and an appropriate appetite.

2. The child attends the DD School and but for a few days of absenteeism due to a suspension and to attend the child inclusive conference in Adelaide, the child’s attendance at school has been regular.

3. The father contends that the child attends a local gym and is engaged in extra-curricular activities including sport.

4. Reports from the child’s teachers suggest initial behaviour difficulties, but as the term progressed the child was better integrated and his attendance was less problematic.

5. The mother has a different assessment of how the child is currently functioning.

6. She complains that her ability to communicate with the father is effectively non-existent.  She is convinced that the father and his partner monitor any telephone or Skype communication that she has with the child.

7. The mother’s contact with the school has resulted in regular updates being provided to the mother that she says supports her assertion that the child’s behaviour is showing a serious deterioration.  The reports of the principal allegedly corroborate that the child has been disrupting class, is violent to other students, has answered back and has been disrespectful.  The child was suspended from school in November 2017 for a period of one school day for kicking another child and pushing metal stumps into their stomach. He was then suspended later in November 2017 for a period of two school days for hitting another child with a cricket bat.

8. There is also a suggestion that the child may either have developed or has continued attention seeking self-harming behaviour.

9. The reports from the school to the parties would suggest the father’s optimism of the academic progress made by the child should be guarded.

10. On an interim basis it is difficult to be satisfied that the child is more settled in his current school than in attendance at his former school whilst in the mother’s care.

THE NEED FOR THE CHILD TO BE MEDICATED

1. To a significant degree, the ongoing contention between the parties centres on whether the diagnosis of ADHD is valid and if so whether medication is warranted.

2. Each of the parties brings their own experience and observation to bear.  I am not able to say that either party’s experience of their son is more valid than the other.

3. The mother could be said to be reacting not just to her own assessment, but also the advice of the child’s paediatrician, other health professionals and a report from the child’s previous school as to the observed difference in the child’s behaviour when medicated.

4. The report of the child’s paediatrician forms Annexure “B” to the Affidavit of the mother’s solicitor filed 6 December 2017.

5. The report is in answer to a request and confirms that whilst a diagnosis of ADHD occurred prior to the paediatrician’s first appointment in April 2013, the child’s behaviour is consistent with the diagnosis.  The paediatrician considers that it is likely that the child’s behaviour is exacerbated by the ongoing dispute between the parties.

6. The paediatrician considers that the current medication regime should continue assisted by ongoing psychological services involving the entire family.

7. In 2015 there was a trial withdrawal of the medication and the objective observations of the child’s school teachers did not confirm improved behaviour.

8. The paediatrician considers that the child’s prognosis is good, “but he may require medication whilst he is at school to help academic achievement but chances are that he won’t require it long-term”.

9. The child last saw the paediatrician on 7 June 2017 and accordingly there has been no opportunity to assess how the child is currently functioning having been in the care of the father since 29 September 2017.

10. It seems reasonable to consider that the best indication of whether the child would benefit by taking medication would be the litmus test of academic performance and appropriate classroom and school conduct.

FAMILY REPORT

1. Following orders made 17 November 2017, a family report was ordered and subsequently published on 13 January 2018.

2. The family consultant adequately identified the issues in dispute namely:-

   ·Child’s time with the parties.

   ·Conflict between the parties.

   ·Child abuse and neglect.

   ·Child’s attachment needs.

   ·Special needs (ADHD).

3. Whilst the parties remained unable to reconcile their differences, they were at least sufficiently perceptive to agree that the child was “acutely aware of the ongoing family conflict”.  They also accepted that his love for each of them was such that he was likely to act out of divided loyalties in order to avoid further conflict and causing distress to them.

4. Whilst the initial justification for the father’s actions in retaining the care of the child was the alleged family violence by the mother, the orders sought by the father were inconsistent with those concerns.

1. I am not able to find on the balance of probabilities that either the mother assaulted the child or that she presents as a risk that requires at least some level of intervention.

2. I am not able to determine on the evidence that the mother’s alleged conduct would in and of itself be determinative of the father’s application.

3. It is uncontroversial that the mother was the subject of an Intervention Order made 9 November 2017 that prohibited her from assaulting the child.  The Intervention Order has now been withdrawn. 

4. Whilst the mother may argue that there should now be no impediment to the child returning to her care as provided for in the 2014 final orders, I am obliged to consider the circumstances of the child as I now find them and determine which of the parties proposals would best serve the child’s interests.

5. The mother and her partner considered that the child’s behaviour “at times was hyperactive, oppositional, physically rough towards her [the mother] (i.e.  when overly affectionate), rude and disruptive”.  They considered that the medication was an appropriate management tool and without it the child readily becomes “dysregulated”.

6. The mother relies not just on her observations but those of the paediatrician consequent upon a relatively recent paediatric review.

7. She does accept that the child has become medication resistant.  She does not consider that this is a virtue but rather, is a reflection of the damaging and corrosive conduct of the father in promoting to the child that the medication is equivalent to poison.

8. The father on his part concedes that the child “loves his mother unconditionally and enjoyed spending time with her”. 

9. Their observations are qualitatively at the opposite ends of the spectrum.  They refer to the child as a friendly, outgoing and sociable young man who expresses a keen interest in sport and his relationship with his peers.

10. The father does not observe the same oppositional and defiant behaviour as apparently occurs in the mother’s home.

11. In discussions with the child, the family consultant was impressed by his presentation noting him to be “an endearing, friendly, polite and mature 11 year old boy.  His presentation was also consistent with that a stylish, fit and healthy boy”.

12. The family consultant did not observe any behaviour consistent with ADHD save and except that his presentation when with the father and the mother to be quite different.  With the father he appeared more controlled, with the mother more boisterous.

13. As anticipated by the father, the child expressed his dislike of the medication and provided a summary of his concerns in particular that when on medication he feels sick.  He recognised that in his father’s care, where medication had not been administered, he felt well.  He did not like the effect of the medication.

14. The report highlights the child’s divided loyalty.  He clearly loves his parents.  Whilst expressing his preference to reside with his mother and spend time with his father it was highly conditional on the mother not requiring him to take medication, enabling him to continue with active extra-curricular sporting activities and to change schools.  There were no conditions attached to his residence with the father.

15. There are aspects of the child’s presentation and views that suggest a mature approach which would invite consideration of substantial weight, whereas he would appear to present with little insight into aspects of poor behaviour at school.

16. The observations of the child’s overt affection towards his mother raise the question of whether there may be a greater emotional attachment with the mother than with the father.

17. The family consultant recommended that the child remain in the primary care of the father, but spend time with the mother either according to the child’s wishes or as may be negotiated between the parties.

18. The family consultant did not support orders for medication to resume based upon the child’s age and his expressed wish not to have a medication regime reinstated.

19. It is difficult to understand the basis of the family consultant’s recommendation in circumstances where there is a clear medical opinion albeit the subject of dispute.

RELEVANT PRINCIPLES

1. The principles applicable to parenting in interim proceedings were considered by the Full Court in Goode & Goode (2006) FLC 93-286 and affirmed in MRR v GR (2010) HCA 4.

2. I approach the matter by consideration of s 60CA namely the best interests of a child as a paramount consideration are to be considered by the application of the objects of s 60B(1).

3. I bring to account the primary considerations and additional considerations in respect of matters as set out in s 60CC(2) and (3) in order to determine what are the best interests of the child and how they will be best served.

4. I remain mindful of the directions contained in s 60CC(2A) and have regard to the issues raised by each of the parties.

5. Whilst I bring to account the issues of risk raised by the father in respect of the mother’s family violence, neglect and the potential for emotional harm, I also have regard to the counter-veiling view of the mother that the father’s concerns for the child’s wellbeing are a manifestation of a preparedness to act contrary to the child’s interests in order to gain his primary care.  On an interim basis it is not possible to determine the veracity of their separate allegations and in any event I am persuaded by the observations of the family consultant that there is a strong attachment that the child has with his parents and a concession by each of them that whilst they seek the child’s primary care, nonetheless, they recognise the importance of the child maintaining a relationship with the other parent.

6. I am not able to place significant weight on the wishes expressed by the child.  His presentation to the family consultant, whilst strongly supportive of his love for each of his parents, is confused by the clearly identified divided loyalty that he has to each of them.

7. Any preference that the child has expressed to live in the primary care of one or other of his parents is the subject of qualification.

8. The clear distinction between the two households is their differing approach to medication.

9. There is no evidence to suggest that the child is currently unsettled in the father’s care.  Whilst it may have been a distressing and traumatic experience for the child when he was retained by the father on 29 September 2017, the impression obtained by the family consultant was that the child appeared relatively contented.

10. That is not to suggest that the same presentation would not be manifest if he was returned to the mother’s care, but it seems that I must focus on the needs of the child and his current presentation rather than to react to the mother’s understandable distress at what she considers to be the father being rewarded for his unilateral and precipitous conduct.

11. The mother concedes that if the child is returned to her care he will attend a new school.

12. Given the history of ongoing litigation and the turmoil that has engulfed the child, there is merit in the submissions of the Independent Children’s Lawyer (“ICL”) that what is required at present is for some stability.  To a significant degree the likely observations of the child’s current school will provide the best indication of the extent to which, if at all, medication is required to ensure academic stability and consistency.  Whilst the two households provide a safe and nurturing environment for the child, the parties will never reconcile their difference in respect to the need for medication to regulate the child’s behaviour and presentation.

13. I propose to order that the child remain in the care of the father until further order, with there to be significant time spent with the mother.

14. The parties will be able to obtain the objective evidence from the child’s school whereupon the Court will be assisted by a review conducted by the child’s paediatrician, the child’s circumstances should be considered towards the end of second term with the Court assisted by an updated medical report, information from the child’s school and at the discretion of the ICL, an addendum report from the family consultant.

15. I reject the father’s application that there be an order of restraint imposed on the mother in respect to matters of discipline. 

16. I am persuaded that any communication between the child and the mother should not be the subject of interference, overview or supervision by the father or his partner.

17. The orders will also provide (if required) for appropriate authorities to be given to the school to ensure the mother is able to be kept informed and if necessary consulted in respect of the child’s ongoing behaviour and academic performance, whether that be to the child’s advantage or his detriment.

18. I make orders as appear at the commencement of these reasons.

I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 9 February 2018.

Associate:

Date:  9 February 2018