DREWETT & WELSH

[2014] FamCA 730

FAMILY COURT OF AUSTRALIA

DREWETT & WELSH [2014] FamCA 730

FAMILY LAW – CHILDREN – Final Orders – where balance of issues resolved by consent but discrete issues require a judicial determination – where parties unable to agree time spent with child during Christmas holiday period,  whether each party be responsible for handover travel costs and whether an injunction should be granted restraining parties from discussing and publishing details of the child’s health – whether child has a diagnosis of ADHD was disputed – best interests of the child – orders made for child to spend equal time with the parties during the Christmas holiday period – orders made for each party to bear their own travel costs – injunction restraining either party from discussing or publishing details of the child’s health.

Family Law Act 1975 (Cth)

APPLICANT: Mr Drewett

RESPONDENT: Ms Welsh

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: ADC 3197 of 2009

DATE DELIVERED: 8 September 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 3 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Taylor

SOLICITOR FOR THE APPLICANT: Marie Taylor Lawyers

COUNSEL FOR THE RESPONDENT: Ms Lee

SOLICITOR FOR THE RESPONDENT: Hume Taylor & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Dibden

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Franklin Legal

upon noting:-

1. That the father does not agree that the child K born … 2006 suffers from ADHD or requires any medication for ADHD;

2. That the current agreed paediatrician for the child K is Dr A;

3. The father resides in Town I and does not anticipate relocating;

4. The mother resides in Adelaide and does not anticipate relocating

it is ordered:

1. That all previous orders be discharged.

2. That the parties have equal shared parental responsibility for the child K born … 2006 UPON NOTING the provisions of paragraphs 11 and 12 herein.

3. That the child live with the mother.

4. That the child spend time with the father:-

   (a)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 commencing on the first Saturday of the holidays;

   (b)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 that where Easter falls during the beginning of the term 1 school holiday period THEN the father’s time will commence at 7pm on Maundy Thursday in even numbered years and each alternate year thereafter and conclude 10 days later at 12 noon.

   (c)Should Easter fall in an odd numbered year during the term 1 school holidays THEN the father’s school holiday time shall commence on Easter Monday at 12 noon for a period of 10 days PROVIDED THAT any shortfall in the period of 10 days shall be made up in the school holidays at the conclusion of term 2;

   (d)Should Easter fall in the week preceding the term 1 school holidays in even numbered years the father’s term 1 holiday time shall commence on the first Wednesday and conclude on the last Saturday of the school holiday period;

   (e)That other than provided for in sub-paragraphs 4 (b) (c) and (d) above the father shall spend time with the child from 7pm Maundy Thursday to 3pm on Easter Monday in even numbered years commencing Easter 2016.

   (f)For the first half of the Christmas school holidays in 2014 and each alternate year thereafter PROVIDED that the first day of the school holiday period shall be the first Saturday of the holidays and the last day shall be the last Saturday of the holiday;

   (g)For the second half of the Christmas school holidays commencing 2015 and each alternate year thereafter PROVIDED that the first day of the school holiday period shall be the first Saturday of the holidays and the last day shall be the last Saturday of the holidays;

   (h)During school terms, from 7pm Friday to 3pm Sunday on the third and seventh weekends each term;

   (i)From 5pm until 7pm on Wednesday of each week that the father is in Adelaide provided the father gives the mother 14 days written notice of his time in Adelaide;

   (j)From the conclusion of school on Friday to 2pm on Sunday on one additional weekend per term when the father is visiting Adelaide provided that he gives the mother 14 days notice;

   (k)At such other times as are agreed between the parties in writing.

5. That handovers for all school holiday time take place at 12 noon.

6. That all handovers with the exception of handovers for time pursuant to paragraphs 4 (i) and (j) herein shall take place at the H Service Station at Town J.

7. That handovers for time pursuant to paragraphs 4 (i) and (j) herein taking place in the Adelaide metropolitan area shall take place at the child’s school and where this is not possible if the school or Out of School Hours Care facility is closed THEN handover shall take place at the boundary of the mother’s property and the father or his agents shall not enter upon the mother’s property unless entry is agreed in writing.

8. That each party be responsible for their own costs of travel for handover.

9. That in the event that the child is due to be with the father pursuant to paragraphs 4, 6 and 8 herein on the weekend of Mother’s Day, the child’s time with the father instead take place on the weekend following Mother’s Day to allow the child to spend Mother’s Day with the mother with the same arrangements for travel and time spending and handover as in paragraphs 4, 6 and 8.

10. That in the event that Father’s Day does not fall on a weekend that the child is already with the father, the closest weekend pursuant to paragraphs 4, 6 or 8 herein be swapped with the Father’s Day weekend to allow the child to spend Father’s Day with the father with the same arrangements for travel and time spending and handover as in paragraph 4, 6 and 8.

11. Subject to the provisions of sub paragraphs 12 (a) to (k) inclusive, the mother be permitted to administer to the child the medication Ritalin or such other medication as is prescribed by Dr A or the agreed paediatrician or psychiatrist.

12. In the event that Dr A is unavailable to continue as the child’s treating paediatrician and the parties do not agree to accept the advice of the general medical practitioner to whom the mother takes the child regarding another paediatrician or psychiatrist THEN the child shall attend upon such of the alternate specialists listed in this paragraph who bulk bills and who can offer the most timely appointment to take over the treatment of the child.  The specialists who may take over the child’s treatment are Dr L (Suburb M), Dr N (Suburb O), Dr P (Suburb O), Dr Q (Suburb R) in consecutive order of availability:-

    (a)Each party shall give the other at least 14 days notice of any appointment for the child with the agreed treating paediatrician or psychiatrist or any other appointment arranged as a result of the treatment plan of the treating paediatrician or psychiatrist;

    (b)The mother shall adhere to all aspects of any treatment regime put in place by the said treating paediatrician or psychiatrist;

    (c)The father shall adhere to all relevant aspects of any treatment regime put in place by the said treating paediatrician or psychiatrist SAVE AND EXCEPT providing any medication for the treatment of ADHD;

    (d)The mother shall not seek to obtain from the said agreed treating paediatrician or psychiatrist or any other medical practitioner, a prescription for medications such as Strattera or any other like medication designed to address behavioural issues of the child, which has a continuous action and cannot be safely withdrawn from the child during the child’s time with the father;

    (e)Both parties shall be permitted to obtain information from and provide information to the treating paediatrician or psychiatrist;

    (f)The mother shall ensure that no later than March 2015, the treating paediatrician or psychiatrist shall undertake a review of the effectiveness of and appropriateness of medication in treating any behavioural issues of the child and provide a written report of such review to each of the parties with further written reviews to take place at each six monthly interval thereafter and which reviews shall include the treating paediatrician or psychiatrist obtaining reports from the child’s school and speaking to both of the parties;

    (g)The mother shall not increase the dosage of or change the type of medication administered to the child to address any behavioural issues unless the treating paediatrician or psychiatrist makes such recommendation in writing after a review and a copy of such written recommendation is provided to the father;

    (h)In relation to any behavioural issues of the child the parties are restrained and an injunction is granted restraining each of them from taking the child to a consultation with any medical practitioner or psychologist other than the agreed paediatrician or psychiatrist or the child’s general practitioner, unless in accordance with the treatment regime put in place by the treating paediatrician or psychiatrist or the child’s general medical practitioner;

    (i)That the father shall make arrangements for the child to have his own general medical practitioner in Town I whom the father shall consult as required when the child is in his care UPON NOTING the child is a patient at S Medical Practice;

    (j)That the mother shall make arrangements for the child to have his own general medical practitioner in Adelaide UPON NOTING the child is a patient at T Medical Practice;

    (k)That the mother does not medicate the child for ADHD on any non-school day upon which handover is to occur unless the mother is transporting the child to handover;

13. The parties shall have liberty to provide a copy of these orders to the treating paediatrician or psychiatrist and to the child’s general medical practitioners.

14. The father shall have and the mother shall facilitate telephone contact with the child, when the child is in the care of the mother, the call to be initiated between 6.30pm and 7pm by the father on Sunday and Wednesday each week, on the child’s birthday or the father’s birthday and on New Year’s Eve, and at 11am on Father’s Day, Christmas Day and Easter Sunday should the child not otherwise have been in his care SAVE AND EXCEPT that the child has been in the father’s care and handed over to the mother on any of the days outlined herein.

15. The mother shall have and the father shall facilitate telephone contact with the child when the child is in the care of the father, the call to be initiated between 6.30pm and 7pm by the mother on Sunday and Wednesday each week, on the child’s birthday, on the mother’s birthday and on New Year’s Eve, and at 11am on Mother’s Day, Christmas Day and Easter Sunday should the child not otherwise be in her care SAVE AND EXCEPT if the child has been in the mother’s care and handed over to the father on any of the days outlined herein.

16. Both parties are at liberty to attend all parent teacher interviews, sports days, assemblies, concerts and all other school or extracurricular activities to which parents are invited.

17. Both parties are at liberty to receive at their own expense school photographs, newsletters, school reports and all other documents and things which parents are entitled to receive.

18. The mother shall within 7 days provide a written authorisation to the school at which the child is enrolled allowing the father to attend at the school, and communicate with the school staff and the child within the precincts of the school at times when the father is in Adelaide subject at all times to the wishes of the Principal of the school or the child’s class teacher.

19. Each party shall as soon as practicable notify the other in the event the child suffers a medical emergency while in that party’s care and shall provide the name and address of the treating practitioner or facility at which the child is treated with both parties to be at liberty to attend the medical facility or hospital where the child is being treated.

20. The parties are restrained and injunctions granted restraining each of them from:-

    (a)Denigrating the other in the presence of the child or allowing any other person to do so;

    (b)Publishing or causing or permitting the publication (on Facebook, Twitter or any other form of social media, in magazines, newspapers or any other written publication) of any medical or psychological information about the child other than in the course of the medical treatment of the child or in the context of a recognised ADHD support group;

    (c)Discussing the proceedings or orders with the child and causing or permitting any other person to do so;

    (d)Providing the child with any document filed in these proceedings or allowing any other person to do so;

    (e)Communicating with one another except as provided for in paragraph 21 herein.

21. The parties communications as are necessary for the implementation of these orders shall take place by text or email or other written form and shall be conducted in a courteous and respectful manner at all times with the exception that in an emergency concerning the child contact is permitted by telephone but must also be conducted in a courteous and respectful manner.

22. That the parties within 14 days do all things and sign all documents necessary to ensure that the child has a current passport at all times, provided the passport is held in the Registry of the Family Court of Australia, to be released for the period of travel only upon the Registrar receiving the written consent of the parties, such consent not to be unreasonably withheld upon the party travelling with the child providing to the other a detailed itinerary, an address and telephone number on which the child can be contacted whilst overseas at least 28 days prior to the date of departure AND PROVIDED THAT the child is not overseas for more than 4 weeks and the child’s passport is returned to the Registry within seven days of the party’s return to Australia.

23. That the appointment of the child representative is discharged.

24. All extant applications be dismissed.

25. That the draft Minute of Order signed by the parties and tendered on 3 September 2014 remain on the file and marked as “Exhibit 1” in the proceedings.

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).

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”) seeks parenting orders in respect of the child K (“the child”) born in 2006 as set out in the Further Amended Initiating Application filed 2 May 2014.  Ms Welsh (“the mother”) seeks orders in respect of the child as set out in the Further Amended Response filed 17 June 2014.

2. The proceedings in respect of the parenting arrangements for the child commenced in 2009.

3. On 4 August 2010, the parties reached a consent agreement.

4. The summary of the orders made by Federal Magistrate Simpson (as he then was) is as follows:-

   (1)That the parties have equal shared parental responsibility.

   (2)That the child live with the mother.

   (3)That the child spend time with the father:-

   (a)For the first seven nights of all short school holidays as may be agreed;

   (b)In the Christmas school holidays for a period of two weeks incorporating Christmas Day commencing 2010;

   (c)In the Christmas school holidays for a period of three weeks not to include Christmas Day commencing 2011;

   (d)Commencing in December 2012 and each alternate year thereafter for a period of three consecutive weeks at times to be agreed between the parties such time to incorporate Christmas Day;

   (e)That the child would spend time with his father on Easter in each alternate year.

   (4)That the parties agree a handover location and that there be other electronic and telephonic communication between the father and the child.

5. The orders were made upon a notation that “the father agrees to pay the costs of the mother and the child travelling by car or by bus between [Town U] and Adelaide for the purpose of handover which payments are not intended to affect child support.

6. As at the date of the final orders, the mother and the child were resident in Town U and the father lived in Adelaide.  Subsequent to the orders being made, the father changed his residence to Town I and the mother and the child now reside in Adelaide.

7. The final orders defined the parenting arrangements until the father filed an Initiating Application on 28 March 2012.  He sought orders that paragraphs 2 to 6 inclusive of the orders made 4 August 2010 be discharged with the effect that the child would live with him and spend time with the mother.

8. It is not possible or even necessary to understand the entirety of the father’s motivation in bringing the proceedings, but it would seem that a significant catalyst for the concerns of the father arose because of a dispute between the parties as to whether the child has a diagnosis of Attention Deficit Hyperactivity Disorder (“ADHD”) or hyperactive behaviour.  The mother sought treatment for the child’s behaviour from a paediatrician in Town G.  The child had also allegedly been suspended from school for poor or adverse behaviour.  The result of the medical and psychological assessment of the child undertaken at the instigation of the mother was a diagnosis of ADHD and the child was placed on a medication regime involving the drug “Ritalin”.

9. The father does not accept that the child has had or has such a diagnosis and he was trenchantly opposed to the child being placed on any medication allegedly to treat, assist or modify the child’s perceived adverse behaviour.

10. The mother’s evidence is that when the child is in her care, but also in kindergarten, his behaviour has been difficult to manage.  The father’s evidence is that there is no adverse behaviour when the child is in his care.

11. There are other issues of contention between the parties which involved where the child would attend school, the extent and level of communication between the parties and issues relating to the place, time and handover arrangements.

12. The father’s position was that these matters were so manifest that in all the circumstances there should be a reversal of the care arrangements for the child such that he would live primarily in his father’s care and spend time with the mother.

13. For her part, the response filed by the mother sought to dismiss the father’s application.  She joins issue with the matters raised by the father and there was thereafter a focus by the parties on the child’s health.

14. So entrenched were each of the parties that the other was not adequately able to manage the child’s health that they each sought orders for sole parental responsibility.

PROCEDURAL HISTORY

1. The matter has been listed for trial in the week commencing 8 September 2014.  On 21 August 2014, counsel for the mother, the father and the Independent Children’s Lawyer in person (“ICL") advised the Court that the parties had been in heated discussion and that there was the distinct possibility that there would either be a complete agreement in which case the matter could be dealt with by a consent order resolving all outstanding issues, or the parties may well be able to agree the substantive issues with the matters that remained being of more minor moment and capable of resolution by short submission based upon the affidavit material filed.

1. Counsel and the ICL again appeared before me on 27 August 2014 and whilst not in a position to present a Minute of Order nonetheless were still hopeful of a substantial resolution to the outstanding issues.

2. The matter was listed before me on 3 September 2014 as the last opportunity for the parties to reach an agreement before the first day of trial on 8 September 2014.

3. On that occasion and after some further discussions, counsel for the parties were in the happy position of being able to present a draft Minute of Order which document contained the areas of agreement and those areas that would require a judicial determination albeit by way of a truncated process.

4. The Minute of Order is placed on the Court file and is Exhibit 1 in the proceedings.

CONSENT ORDER

1. Counsel for the parties and the ICL tendered a Minute of Order which sets out the matters that are agreed and those that still remain in dispute.

2. The orders if made, would represent a comprehensive resolution of the parenting dispute between the parties save as to the following limited issues:-

   (1)The arrangements for the child to spend time with the parties during the Christmas school holiday period (paragraph 4 (vi) and (vii));

   (2)Whether the parties will be responsible for their own costs of travel to effect handover (paragraph 8);

   (3)Whether the parties will be the subject of an injunction restraining them from publishing or causing or permitting the publication of medical or psychological information about the child other than in the course of the medical treatment of the child or in the context of a recognised ADHD support group (paragraph 20).

3. The balance of the Minute of Order, noting the signature of the parties indicating their consent can be dealt with to finality.

4. The three issues remaining require judicial consideration, but I propose ultimately to make one order that encompasses those paragraphs of the Minute of Order that are agreed and the subsequent orders that I will make following my determination of the outstanding issues.

5. A resolution of all outstanding issues will enable the trial date to be vacated.

CHRISTMAS SCHOOL HOLIDAYS

1. In the Further Amended Initiating Application of the father filed 2 May 2014, he seeks orders in the following terms:-

   3 (b)In the Christmas school holidays commencing December 2014 and each alternate year thereafter for a period of three consecutive weeks concluding on the last Saturday of the holidays providing that the time with the mother does not commence prior to 27 December;

   (c )In the Christmas school holiday period commencing December 2015 and each alternate year thereafter for a period of three consecutive weeks commencing on the first Saturday of the holidays.

2. The clear intention of the father is that in 2014 he would have the last three weeks of the school holidays concluding on the last Saturday and in alternate years provided that the mother’s time does not commence prior to 27 December.  This is to reflect the agreed position of the parties that the children should spend time with each of the parties on Christmas Day each alternate year.

3. In 2015 and each alternate year thereafter the child would spend time with the father for the first three weeks commencing on the first Saturday.

4. Whilst it is not specifically stated, the orders as sought by the father are predicated on the Christmas school holiday period being approximately six weeks in duration and that this would see that period shared equally between the parties.

5. The husband’s position however has changed and it is now reflected in the following terms:-

   In the Christmas school holidays commencing December 2014 and each alternate year thereafter for a period of four weeks commencing on the first Saturday of the holidays.

   In the Christmas school holidays commencing December 2015 and each alternate year thereafter for a period of three weeks commencing 2^nd January.

6. The mother is not necessarily opposed to the period of time but is opposed to the first four week period commencing in December 2014.

7. In the Further Amended Response of the mother, she seeks orders that would see the child spending the first three weeks of the school holidays with the father (which would include Christmas 2014) and in each alternate year thereafter and then, in the intervening year and each alternate year thereafter, for three weeks commencing 2 January 2016.

8. It is conceded by counsel that there is nothing in the trial affidavit material filed by each of the parties which will assist the Court in determining the matter.

9. The concern of the Court is that the position adopted by the father may well have an explanation in respect of the discussions between the parties and counsel.

10. Ultimately, I am obliged to determine the matters on the objective evidence and it seems to me that by a consideration of the orders that each of the parties seek in their most recent amended proceedings, they seek almost identical orders.

11. By way of example, the school term concludes on Friday 12 December 2014 and first term 2015 commences on Tuesday 27 January 2015.  It appears that the intention of the parties is to delineate the Christmas school holiday period as commencing on the first Saturday of the holidays (13 December 2014) and concluding on the last Saturday (24 January 2015).  Numerically, this period represents about 43 days or a little more than six calendar weeks.

12. It is the case that certainly for the foreseeable future the holiday period is of six weeks duration.

13. I can see no justification for the father having a longer period in each alternate year in terms of the evidence upon which I am entitled to rely.

14. It may be the case, as was submitted by the father’s counsel, that because he considers his time with the child to be restricted intra-term that this should in some way be made up, but that is not a consideration that I am entitled to bring to account.  The parties have reached agreement in respect of the balance of orders sought on the basis that they properly represent the interests of the child.  Indeed, I note that the orders provide for the father to have more time in the term 1 and term 3 holidays.

15. Accordingly, I propose to make orders that would see the Christmas school holiday period shared equally between the parties with the child to spend time with the father in the first half of those holidays in the year 2014 (to include Christmas Day) and in each alternate year thereafter, and in the year 2015 and each alternate year after for the second half of the holiday period, with the calculation to be undertaken on the basis that the first day will be the first Saturday of the school holidays and the last day will be the last Saturday.

COSTS OF THE PARTIES TRAVEL TO EFFECT HANDOVER

1. The father seeks that each party be responsible for their own costs in travelling to and from the handover point as specified in paragraph 6, namely H Service Station at Town J.  The mother’s position is that the father should continue to provide her with a contribution to her costs of travel.

2. The parties agree that handover will occur at Town J notwithstanding that this was a matter of dispute.  It is conceded that Town J is approximately equidistant between Adelaide and Town I.

3. At paragraph 161 of the mother’s affidavit filed 17 June 2014, she states:-

   With respect to the costs of travel I seek an order whereby the father pay the sum of $50 to me prior to travelling to cover the costs of my travelling to [Town W] and return.  In other words, the father would contribute $12.50 towards my travelling costs for each leg of the trip.  I would be required on a Friday night for example to take [the child] to [Town W] and then drive back to Adelaide and on Sunday the drive to [Town W] again and drive back with [the child].  I seek this payment because the father provides almost no financial support for [the child].  The father earns an income sufficient to enable him to have purchased a very new large house with his partner in [Town I].  I receive Family Assistance and a Pension and supplement my income with earnings from my business doing [beauty therapy].  I am continuing to build that business but for the time being the expenses of purchasing the supplies balance out the income that I derive from paying customers.  A lot of the work involves [beauty therapy] prior to weddings or special occasions and comes to me through friends and contacts on social media.

4. The father’s response is that he did agree in June 2013 to contribute towards the mother’s travel costs but that he could not really afford to pay that money.  It was because the mother threatened that she would not be able to effect handover that he ultimately agreed to contribute the sum of $50 per visit.

5. The father resides in Town I in the south east of South Australia and as set out in his affidavit filed 4 July 2014 at paragraphs 79 – 83, the father says that he meets his own costs of travel and that he is currently a second year apprentice earning a modest income.  He does provide financial assistance for the child in that he purchases clothing, toys and shoes when the child is with him and he pays for the child to participate in extracurricular activities.

6. The father also refers to a raft of information annexed to his affidavit which purports to be from the mother’s Facebook and social media sites that he says are suggestive of the mother financially flourishing with her current beauty therapy business.

7. Other than the brief reference in the parties respective affidavit material I am not able on the evidence to decide the extent or otherwise of the financial positions of the parties.

8. The mother does not assert that her level of impecuniosity is such that unless there is a supplement provided by the father she would not be able to effect the handover.

9. I also do not consider it a relevant consideration that the mother complains of the lack of financial support by the father.  I have not been presented with any information in respect of child support and it is not the position that I am able without any evidence to form a view that the father is making an inadequate financial provision for the child and that therefore a contribution towards handover costs which would otherwise not be sustainable becomes appropriate.

10. In the absence of any evidence to support the position of either the mother or the father, I consider that each party should be responsible for their own costs of travel.

INJUNCTION RESTRAINING HEALTH INFORMATION ABOUT THE CHILD FROM PUBLICATION

1. The father seeks an order in the following terms:-

   The parties be restrained and an injunction granted restraining each of them from:-

   (b )Publishing or causing or permitting the publication (on Facebook, Twitter or any other form of media, magazines, newspapers or any other written publication) of any medical or psychological information about the child other than in the course of the medical treatment of the child or in the context of a recognised ADHD support group.

2. The mother opposes that order.

3. At paragraph 171 of the father’s trial affidavit filed 1 May 2014, he states:-

   Annexed hereto marked RD16 is a copy of an article published in a magazine named “…” in … 2013.  The article relates to the mother’s entry into a competition “…”.  The competition rules provide that the entrant must be nominated by another person but the information contained in the article is supplied by the mother.  I believe it is not in [the child’s] interest that the mother publish personal information (which I believe to be false) in a national magazine.

4. The further concern of the father is that health considerations in so far as they relate to the child are matters of inclusion in social media communication engaged in by the mother.

5. The article is annexed and it is accurate that the mother is identified as is the child.

6. The following appears:-

   You see, [the child] suffers from severe ADHD.  Being hyperactive, he has no concept of personal boundaries.  One time, he became so excited over a game with his class mates, he accidentally head-butted one of his pals. “I don’t want to be naughty” he told me afterwards.  My poor boy just doesn’t understand how his behaviour can impact on others.

7. The father does not agree that it is in the child’s interest that the information displayed in the article should be in the public arena.  Moreover, the father does not agree that the diagnosis as asserted by the mother is accurate.

8. The circumstances in which information regarding the parties and children should be circulated on various social media forums involve complex considerations.

9. It does not seem to me that there is however any significant benefit derived by the child from his involvement in social media and indeed, in years to come the child might well not be pleased to learn of the extent to which his circumstances have been the subject of open disclosure, publication and discussion.

10. There is nothing in the affidavit material which assists me to understand the mother’s motivation and in circumstances where I can find no positive advantage to the child, the continued use of social media referring to and identifying the child by the parties but in this case the mother, is only likely to heighten the significant mistrust already self-evident between the parties.

11. I am also assisted in the concession by the father that the prohibition is restricted to social media other than “in the course of the medical treatment of the child or in the context of a recognised ADHD support group”.

12. Accordingly, I propose to make orders as sought by the father in paragraph 20 (b) of the Minute of Order.

CONCLUSION

1. The determination by me of the three outstanding issues provides a comprehensive resolution to the proceedings and on that basis the trial listed for hearing on 8 September 2014 will be vacated.

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

I certify that the preceding sixty seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 8 September 2014.

Associate: 

Date:  8 September 2014