ELROY & ELROY

[2015] FCCA 797

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELROY & ELROY [2015] FCCA 797

Catchwords:
FAMILY LAW – Parenting – child not yet 3 – recently identified as having developmental delays in several areas including speech diagnosis and prognosis not yet known – at end of two day hearing parents agree interim orders should be made.

Applicant: MS ELROY

Respondent: MR ELROY

File Number: MLC 9729 of 2013

Judgment of: Judge Harland

Hearing dates: 23 March 2015, 24 March 2015 & 31 March 2015

Date of Last Submission: 31 March 2015

Delivered at: Melbourne

Delivered on: 2 April 2015

REPRESENTATION

Counsel for the Applicant: Ms Baczynski

Solicitors for the Applicant: Roger O'Halloran & Co

Counsel for the Respondent: Mr Ambrose

Solicitors for the Respondent: Cahill & Rowe Family Law

ORDERS

1. That order 4 of the interim consent orders be discharged.

2. The matter is adjourned to 31 August 2015 at 9.30am for mention. The solicitors have leave to attend by telephone.

3. That the father spend time with X on Easter Monday and Tuesday from 9.00am to 2.00pm.

4. That thereafter the father spend time with X on the second and fourth days of the father’s rostered days off from 9.00am until 2.00pm.

5. That the parties do all acts and things necessary to ensure X attends all appointments with Dr W and follow her reasonable directions and recommendations.

6. That within 7 days the father shall sign and lodge any documents to the National Disability Insurance Scheme (NDIS) as may be required by NDIS.

7. That both parties be at liberty to attend any of X’s medical appointments.

8. That the parties follow all reasonable directions of the NDIS case worker, X’s speech pathologist and any other professional working with X and ensure X attends his appointments.

9. That within 14 days the father do all acts and things to enrol in the Great Dad, Great Kids course at (omitted) and provide the mother with a copy of his certificate of completion within 7 days of receipt.

10. That within 14 days of these orders, the parties do all acts and things necessary to enrol with (omitted) handover services.

11. That within 28 days the parties do all acts and things necessary to enrol with Lifeworks counselling services for counselling directed at improving the parties communication with each other about issues concerning X’s care, welfare and development.

12. Whenever possible, the parties will conduct handover via the (omitted) handover service. Whenever (omitted) is not available the parties will conduct handover at McDonalds (omitted).

13. That the father keep the mother informed of any changes to his work roster which will impact on his time with X and will give the mother no less than 14 days notice of changes to his time arrangements with X.

AND THE COURT NOTES THAT:

A.The father intends to pay the gap fee payment for any fee charged by Dr W not covered by Medicare or the parties private health insurance (if applicable).

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 9729 of 2013

MS ELROY

Applicant

And

MR ELROY

Respondent

REASONS FOR JUDGMENT

1. X will turn 3 on 29 May 2015. There are some serious concerns about X’s development which will need further investigation.

2. This matter proceeded to a two day final hearing on 22 and 23 March 2015. At the end of the hearing, to their credit, the parties agreed that the Court should make interim and final orders at this stage. The parties attended Court on 31 March 2015 for argument about what interim orders should be made.

3. Exhibit B is a bundle of documents relating to the testing and assessment of X’s developmental abilities. On 29 September 2014, the community child health care nurse administered the Brigance early preschool screening tests to X. He scored 15 out of 100 on this test. The cut-off score is 61. On that day, X was referred to the National Disability Insurance Scheme (NDIS). On 6 October 2014 the NDIS wrote to the mother and indicated that X has been accepted as needing early intervention and meeting the requirements of becoming a NDIS participant. X's NDIS plan commenced on 24 February 2015. It describes the goal as including increasing his ability to communicate with others, X to receive speech therapy to assist in that goal and for X to initiate play interactions with his peers at playgroup.  Another goal for X is to better self-regulate his behaviour intended to receive psychological support in this regard. The NDIS funds speech and language pathology, occupational therapy and psychology for X.

4. It is apparent from reading the tests and other materials that X has serious developmental deficits that go beyond X’s problems with speech. The difficulty for X’s parents currently is that the extent to those deficits and what improvements can be made is yet to be determined. X’s parents agree that X only says a few words. X mostly communicates by gesturing and grunting.

5. X’s parents are young themselves and the interactions with each other in particular their text communications indicate their immaturity. X’s parents have not been able to communicate effectively with each other. They have each completed a post separation parenting course but in my view they would benefit from counselling to assist them to improve their communication skills. This is particularly important for X given he is at a young age and facing developmental challenges, it will be important for the parents to find a way of working effectively together. One thing the family consultant emphasised in his oral evidence was the importance of there being one pathway for X given his developmental needs. He said that the NDIS documents indicate that X has some significant delays across the board and he will need assistance at many levels and that this will require commitment from both of his parents. At this stage it is not known whether or not X will be ready for school at the same time as his peers.

6. One of the tensions in this matter is due to the father’s work roster. The father has an 8 day roster where he works 2 days, 2 nights and then has 4 days off. This means that the days of the week that the father has off changes from week to week. The mother finds it difficult to work with the changing days, which would provide greater stability and predictability for X. The mother also complains that the father changes his roster at short notice and believes that he could change the roster to fit in with him having X on set days of the week. The father says he cannot change his roster to suit whenever he likes, although the roster he has provided to the mother has not taken into account his holidays and other leave.

7. The father’s work roster is a reality that the parties have to work around. I am not satisfied that the father is able to change the roster at work as suggested by the mother.  It is reasonable that the father inform the mother of changes to his roster if those changes are going to impact on the days he is to spend with X. The mother complains that he changes the roster at the last minute and expects the mother to fit in with this. She wants the father to give her 21 days notice of any change to his roster.  The father’s position with respect to this is not clear.

8. At the hearing the mother sought orders that the fathers time be limited to alternate weekends and to be limited to 4 hours a day. Her initial proposal was that time be from 11.00am until 3.00pm, even though on her own evidence she says X sleeps for a couple of hours in the afternoon until about 1.00pm. I expressed concern about this proposal during the course of the hearing because it involves a radical reduction in the father’s time with X and also does not take into account X’s stage of development. Not seeing his father for a block of 10 days is likely to be confusing and unsettling. X does not have a sense of time. The mother adjusted her proposal in response to this to suggest another time during the week.

9. The father wants to increase his time to overnights. Neither parent’s proposal is really attuned to X’s needs.  This is also something that the family consultant observed during the father’s observations and it was for this reason, he recommended that the father attend a parenting skills course of parents with young children.

10. In his family report released in August 2014, the family consultant recommended a reduction in the father’s time with X. His oral evidence said this was important because of the developmental issues that X has. It is important to stress that this should not be construed as being a negative comment on the father’s parenting capacity.

11. The family consultant does not support the mother’s proposal but recommends removing the middle day and that X to have shorter hours with his father. The family consultant acknowledged that it has now been almost 6 months since his family report recommending reducing the number of hours and days but says that he also did not have the information about X’s developmental difficulties at the time of his report and that in order for X to consolidate his development skills, it is important that X have a stable base from which to work with.

12. As I stated at the beginning of this judgment, it is to the parent’s credit that they have agreed that interim orders should be made at this stage rather than final orders. This recognises the importance of further investigating X’s developmental needs and the parties have agreed to take X to a paediatrician. It is also a positive sign that despite the conflict between them and the difficulty in communicating instructions, both parents have attended X’s speech therapy appointments to date.

13. The parents raise other issues during the course of the hearing and supporting witnesses were cross-examined. It is not necessary to canvas that evidence at this stage given that I will be making interim orders. The parties made further submissions after being given the opportunity of many submissions after being able to make enquiries about relevant services available.

Further submissions about interim orders

1. The parties have agreed upon a paediatrician and have made an appointment.

2. The parties have also provided information to the court about available parenting courses and counselling services in (omitted).

3. The mother still seeks sole parental responsibility on an interim basis. The father resists this. There is already equal shared parental responsibility. The father says there is evidence that both parties have been responsible for poor communication, rather than it being solely his responsibility. The father said he did not receive a copy of the screening assessment dated 14 September 2014 until a few days before the hearing. He expresses concern that the screening assessment is identified potentially serious issues with respect to X’s development which are only being addressed now. The mother says that the father attended the appointment and says he could have asked for the document himself. The real concern here is with the delay in getting X assistance. I am of the view that both parents need to take some responsibility for the poor communication between the two of them. It is also apparent to me that it only really became clear to the parents that X’s problems went beyond speech difficulties either shortly before the hearing.

4. As the family consultant said during his oral evidence it is important that X’s parents have a united approach and that X stays with one set of doctors and specialists and follows one recommended course of treatment. There is already an interim order in place for the parents to have equal shared parental responsibility. It would be premature to exclude the father from this important area of decision making for X when some safeguards can be put in place in the orders requiring the parties to follow reasonable directions of the NDIS and X’s treating doctors. If the hearing resumes in this matter and there is further evidence of the parents not being able to put X’s interests ahead of the difficulties, then it may be necessary to consider giving one parent sole parental responsibility at least with respect to medical issues.

5. I acknowledge that both parents have a lot on their plate. I was considering whether or not to make orders for the parties to attend counselling, given the other commitments that they will have with respect to X in the coming months, but on a balance feel, that there will be real benefit to the parents and to X if they can improve their communication. For this reason I have included an order for the parties to enrol with Lifeworks for their counselling but provided a longer timeframe in place for them to arrange for that. If they were not aware of that before, both parents are clearly on notice of the importance of them working together a united front for X’s benefit. It is clear that both parents have X’s best interests at heart.

6. Exhibit F is a speech pathology report which was made available to the parties after the evidence was completed. She assessed X as having age-appropriate receptive language skills. He is approximately 12 to 18 months behind in his expressive language skills. She thought he had age appropriate range of social skills.

7. She made several recommendations including that X’s hearings assessed that he sees a paediatrician. The other recommendations she made clearly directed at the parents assisting X to develop his communication skills and a variety of activities. This is why it is to X’s great benefit that both parents have attended the speeches or pathology sessions as part of the session is no doubt involved with speech pathologist giving the parents exercises to follow through with X.

8. The mother still seeks that the father’s time with X be restricted to alternate weekends for 4 hours each visit. As I expressed at the hearing, this does not take into account the reality of the father’s roster or X’s developmental needs.

9. The father seeks that his time with X remains unchanged. He says that although the family consultant recommended a reduction in the father’s time, he made that reduction in August 2014 and now X has been in the current routine for about 12 months. He says that Exhibit F is a positive sign in that X is in the normal range for receptive language skills and therefore, the Court should not be concerned about X’s ability to cope with the current arrangement.

10. I do not accept the father’s submissions in this regard. It is true that the family consultant’s recommendations are outdated and that X has now been experiencing the current arrangement for a lengthy period of time. However when giving oral evidence, the family consultant maintained his stance that the father’s time should be reduced. He said this was even more important given X’s developmental issues. There was a real dispute at the hearing as to whether or not X was coping with arrangement with each parent making allegations against the other.  The family consultant emphasised the importance of young children like X having a stable base and the need for X and his parents to focus on addressing his developmental needs.

11. X and his parents will be experiencing many adjustments in the coming months to address X’s issues, as well as in the father’s case welcoming a new born child into the world.

12. The father should not construe a reduction in his time as being adverse commenting on his parenting capacity. Rather is it reflective of X’s age and developmental needs. I think a reduction is called for with respect to the duration of the day time visits and the number of visits. 

1. For the above reasons I make the orders appearing at the commencement of these reasons.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date: 2 April 2015