DREWETT & WELSH

[2013] FamCA 342

FAMILY COURT OF AUSTRALIA

DREWETT & WELSH [2013] FamCA 342

FAMILY LAW – CHILDREN – interim orders – appointment of an Independent Children’s Lawyer – parties granted leave to provide copies of all affidavits filed in these proceedings to specified health professionals.

Family Law Act 1975 (Cth) s 68L

APPLICANT: Mr Drewett

RESPONDENT: Ms Welsh

FILE NUMBER: ADC 3197 of 2009

DATE DELIVERED: 7 May 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 7 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Taylor

SOLICITOR FOR THE APPLICANT: Mellor Olsson

COUNSEL FOR THE RESPONDENT: Mr Byrne

SOLICITOR FOR THE RESPONDENT: Hume Taylor & Co

Orders

BY CONSENT IT IS ORDERED THAT

1. Pursuant to Section 68L of the Family Law Act 1975 as amended THAT the child K born on … October 2006 be independently represented and that such representation be arranged by the Legal Service Commission of South Australia AND that to expedite the appointment of the Independent Children’s Lawyer within seven (7) days of the date hereof each party do cause to be furnished to the said Commission a copy of all documents filed herein by that party.

2. The Independent Children’s Lawyer communicate with the Deputy Principal or Principal of the B Primary School in relation to:

   (a)observations of K’s behaviour at the school;

   (b)behavioural strategies implemented by the school staff in relation to K’s behaviour.

3. The parties are restrained and an injunction is granted restraining each of them from changing K’s school enrolment from the B Primary School without the written consent of the other or without an order of this Court.

IT IS FURTHER ORDERED THAT

1. The father has leave to provide copies of all affidavits filed in these proceedings to Professor C and to Dr D.

2. The mother has leave to provide copies of all affidavits filed in these proceedings to Dr E and to Dr F.

3. Further consideration of the father’s Amended Application in a Case filed on 10 April 2013 (including paragraphs 11 and 12) is adjourned to Thursday 13 June 2013 at 9.15 am before the Honourable Justice Dawe.

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

EX TEMPORE REASONS FOR JUDGMENT

1. Orders can be made by consent in terms of the paragraph 7, which is the appointment of an Independent Children’s Lawyer.  I can also make by consent the usual order that both parties provide copies of all documents that they have filed in these proceedings to the Legal Services Commission within 7 days from today.  Paragraph 8 is agreed, which requests the Independent Children’s Lawyer to communicate with the school in relation to K, (“the child”).  Paragraph 13 was also by consent, which relates to not changing the child’s school without the written consent of the other or order of Court. 

2. In relation to the matters which have been argued before me today, paragraphs 9 and 10 relate to each of the parties have leave to provide copies of affidavits to various experts.  Paragraph 9 relates to the father having leave to provide copies of all affidavits to Professor C and to Dr D.  Paragraph 10 relates to the mother having leave to provide copies of affidavits to Dr E and Dr F.  Dr E and Dr F have been the treating specialist whom the mother has consulted in relation to the child.  Professor C has provided reports to the father and Dr D has also provided reports to both of the parties in relation to the child’s condition. 

3. These proceedings concern the parents’ inability to directly make appropriate decisions as to what is in the best interests of the child who was born in October 2006. 

4. Much of the disagreement relates to the division which exists between the parties as to what is the actual diagnosis for the child, what accounts for his behaviour and what treatment should follow.  The mother maintains that the child has been appropriately diagnosed as suffering from ADHD and is currently being prescribed Ritalin.  The father does not accept that diagnosis and challenges the need for the medication. 

5. The material that is currently on file indicates that the parties are unable to reach agreement in relation to significant factors concerning the health of the child.  The Court has made by consent the orders providing for the Independent Children’s Lawyer to be appointed to represent the child’s interests.  Hopefully, that will assist the Court in receiving all appropriate evidence if the parties continue to be unable to decide the best interests of their own child. 

6. In relation to the provision of affidavit material to those experts, the mother opposes the same.  At this time, I believe that it would likely to have the benefit of increasing the quality of the expert evidence that the Court will receive, but also increasing the quality of the information and advice that can be provided to the child’s parents in order to make appropriate decisions.  If the mother chooses to provide information to the doctors to whom paragraph 10 refers, then that will be her choice.  She has been granted leave but has not been required to do so. 

7. The father is being granted leave to provide that information to overcome the difficulties of publishing material which might otherwise be considered in breach of the provisions of the Family Law Act 1975 (Cth). I therefore make the orders sought in paragraphs 9 and 10 on the basis that each of the parties inform the other party and the Independent Children’s Lawyer of which documents they have provided to the various experts or treating practitioners.

8. In relation to paragraphs 11 and 12, they relate to orders which the father seeks to change the treating paediatrician for the child.  Paragraph 12 relates to the order which refers to Dr E or Dr F and paragraph 11 seeks an order that the parties only consult Dr D as the treating practitioner for the child. 

9. The correspondence annexed to the affidavits of the parties and the affidavits of the parties set out the interaction between the parties and Dr F certainly raised concern.  He is based in Town G.  The mother is now a resident in Adelaide and has consented to an injunction keeping the child enrolled at B Primary School.  The issue however is whether the best interests of the child would require a change of the treating paediatrician. 

10. There is concern also in the affidavit about the attitude of Dr F towards the father and the breakdown in appropriate relationships between one of the parents and the treating paediatrician.  However, I am of the opinion that the overall issue (in relation to determining who should be the treating paediatrician) would also benefit from submissions being received from the Independent Children’s Lawyer.  I therefore propose to also adjourn further consideration of paragraphs 11 and 12 when I adjourn the rest of the Application in a Case to the next available date, which is the 13 June at 9.15 am. 

11. I have adjourned the outstanding matters (including paragraphs 11 and 12) to 13 June at 9.15 am. 

12. I end my remarks by saying, as has been clear from the terse remarks I have made in the presence of the parties, that I consider that this is a matter which should be able to be resolved by parents consulting, not only their lawyers and experts, but consulting with each other to determine what is in the best interests of the child, both in relation to the child’s actual health, as referred to by the paediatrician, but also emotional and psychological health which is never assisted by the parents being involved in ongoing proceedings in this Court for what is now approaching four years being most of the child’s life.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 7 May 2013.

Associate: 

Date:  16 May 2013