FEAKS & RITCHIE

[2015] FamCA 384

FAMILY COURT OF AUSTRALIA

FEAKS & RITCHIE [2015] FamCA 384

FAMILY LAW – CHILDREN – VARIATION OF PARENTING ORDERS – Where final parenting orders were made after a defended hearing providing for the father to spend time with the child– Where there has been no appeal against those orders – Where a dispute arose between the parties after the orders as to the issues of medical decisions, the child’s passport and education – Where the father was unable to spend time with the child pursuant to the orders – Where it is clear that the child would benefit from spending time with the father –  Where the spend time orders are reinstated – Orders made that the mother have sole parental responsibility for education .

Family Law Act 1975 (Cth)s 70NBA

APPLICANT: Ms Feaks

RESPONDENT: Mr Ritchie

INDEPENDENT CHILDREN’S LAWYER: Ms Kathryn Renshall

FILE NUMBER: SYC 5143 of 2008

DATE DELIVERED: 25 May 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 18 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Applicant in Person

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Respondent in Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Renshall

Orders

1. That an Independent Children’s Lawyer be re-appointed to represent the interests of the child B (“the child”) born … 2006.

2. That Order 6 made by her Honour Justice Cleary on 12 August 2014 be vacated.

3. That Ms Feaks (“the mother”) have sole parental responsibility for the management of the child’s health.

4. That in the event the child consults any doctor, other than Dr E or Dr F, the mother is to advise the father immediately, by email, of the date of the anticipated appointment and the full contact details of the medical practitioner and authorise the relevant medical practitioner to provide to the father any information which the father might request.

5. That a copy of these Orders is to be provided to any medical practitioner who is consulted by the mother in relation to the child’s health.

6. That the mother’s application for sole parental responsibility in relation to education is dismissed. 

7. That for a period of twelve (12) months from the date of these Orders the child shall spend time with her father, Mr Ritchie, commencing on Sunday 31 May 2015 and thereafter on the last Sunday of each calendar month as follows:

   8.1For two (2) hours unless the parties agree otherwise in advance in the presence of the paternal grandmother, Ms C;

   8.1.1In the event that the child is sick and too unwell to be provided to the father for a particular period of time in accordance with these Orders, then the time that the child did not spend with the father will be made up on the next Sunday on each such occasion.

   8.2For the first three (3) periods that the child spends with the father, the mother shall be present in the general vicinity of the place where the father, the child and the paternal grandmother are spending time.

   8.3The time shall commence at 10:00 am unless the mother has advised the father by 8:00 am on that day that the child will require a later starting time in which case the time will commence at midday.

   8.4The venue for the first six (6) times the child spends with the father shall be at the Suburb D Library and any outdoor facilities adjacent to the Suburb D Library unless the parties agree otherwise and, on the first three (3) occasions, the mother shall deliver the child to the venue at the commencement of time and collect her at the end of the time.

   8.5After the first three (3) occasions when the mother will be present, the time that the father spends with the child will take place in his presence and that of the paternal grandmother and the paternal grandmother shall collect the child from and return her to the home of the mother.

8. That from the last Sunday in May 2016 the time that the child spends with the father will be extended from 10:00 am until 6:00 pm.

9. That the mother is restrained from filing any application to the Court seeking the issue of a passport for the child until the child has spent six (6) periods of time with the father pursuant to these Orders.

10. That leave is granted to the Independent Children’s Lawyer to make an application on short notice, by arrangement with my Associate via email to bring any application relating to the implementation of these Orders or non-compliance with these Orders.

11. That all applications and cross applications be and are hereby dismissed.

12. That all issues be removed from the Active Pending Cases List.

13. That all material produced on subpoena shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same not before fifty-six (56) days from the date of these Orders.

NOTATIONS

1. That the Court requests that Kathryn Renshall be appointed as Independent Children’s Lawyer in these proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Feaks & Ritchie 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 SYDNEY

FILE NUMBER: SYC 5143 of 2008

Ms Feaks

Applicant

And

Mr Ritchie

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

introduction

1. On 12 August 2014, after three days of defended hearing with the assistance of an Independent Children’s Lawyer (“ICL”), Cleary J made orders in relation to the parenting arrangements of the child B (“the child”) born in 2006. 

2. There was no appeal against the Orders.

3. The Orders which are relevant to the proceedings before the Court today are orders 3 and 5-11 inclusive and those Orders are set out below.

   Spend time with

   (3)For a period of 12 months from the date of these Orders, the child shall spend supervised time with the father and the mother shall make the child available for that time on one Sunday of each calendar month as follows:

   3.1    For two hours, being the first Sunday of each month unless the parties agree otherwise in advance, commencing Sunday 8 September 2014 NOTING that this is the second Sunday of the month to provide for the child being with the father on Father’s Day.

   3.1.1In the event that the child is sick and too unwell to be provided for a particular period of time then the time will be spent on the next Sunday of that calendar month on each such occasion of illness.

   3.2    Supervision for the first six periods that the child spends with the father pursuant to Order 3 shall be by a professional supervisor whose fees shall be paid by the father and the father shall advise the mother of the name and contact details of the professional supervision service which will provide the supervisor.

   3.3    The time shall commence at 10.00 am unless the mother has advised the father by 8.00 am on that day that the child will require a later starting time and shall nominate that time being up to a midday start.  

   3.4    The father shall use his best efforts to ensure the attendance of his mother, [Ms C] (“the paternal grandmother”), during the periods of time spent with the child pursuant to Order 3.

   3.5    The venue for the first six times the child spends with the father and a professional supervisor shall be the [Suburb D] Library and any outdoor facilities adjacent to the [Suburb D] Library.

   3.6    Provided the paternal grandmother attends on no fewer than four occasions when the child spends time with the father, supervised by a professional supervisor, THEN the seventh time and all subsequent times thereafter that the child spends with the father pursuant to Order 3, shall be supervised by the paternal grandmother.

   3.7    The paternal grandmother shall collect the child from and return the child to the home of the mother.

   3.8    The venue and times that the child spends with the father, supervised by the paternal grandmother, shall be chosen by the father and the paternal grandmother and either the father or the paternal grandmother shall telephone the mother to advise her of the venue and arrange times for those visits.

   3.9    The father shall not select a venue for the child’s time with him pursuant to Order 3.8 that is more than 10 kilometres from the mother’s residence.

   Parental responsibility

   (5)The mother shall have parental responsibility for all long term issues for the child other than as specifically provided for in these orders.

   Health and medical treatment

   (6)NOTING that the current treating practitioners for the child are:

   (a) [Dr E], Paediatrician;

   (b) [Dr F], General Practitioner.

   Each party is restrained from causing the child to consult a different paediatrician and general practitioner without prior written consent of the other parent AND FURTHER the party proposing the change must notify the relevant practitioner of the proposed change to enable that practitioner, if he or she wishes, to speak to each party and express a view about the proposed change.

   (7)The father may contact and consult with the child’s treating practitioners and obtain, at his own cost, copies of any reports in relation to the child’s health and referral to other medical, dental or therapeutic practitioners.

   Education

   (8)NOTING that the child attends [G School], each party is restrained from changing the enrolment of the child away from that school without prior written consent of the other party AND FURTHER the party proposing the change must notify the Principal of the proposed change to enable the Principal if he or she wishes to speak to each party and express a view about the proposed change.

   (9)That the father may consult with the Principal of [G School] and whichever other teacher at the school may be nominated by the Principal, and if considered appropriate by the Principal and in the best interests of  the child, be permitted to attend at school to observe the child in the classroom with a view to understanding how the child is managed at school.

   (10)The father and the paternal grandmother may attend at the child’s school for events to which parents are invited and shall advise the mother of his intention to attend in advance of the event.

   (11)The father is entitled to request that the child’s school provide him with copies of all documents relating to her welfare and progress at school (including but not limited to school reports, newsletters and applications for school photographs).

4. Each of the parents subsequently filed an application for contravention and those applications were adjourned from the duty list and dealt with by me on 14 May 2015. There being insufficient evidence to support the allegations made by each of them, all applications were dismissed. It was however clear that the arrangements which had been put in place by Cleary J required revisiting. Therefore, pursuant to the provisions of s 70NBA of the Family Law Act 1975 (Cth) (“the Act”), I determined that it was appropriate to revisit those arrangements. Accordingly each of the parties was ordered to file any affidavit material by 4.00 pm on Friday 15 May 2015 and the matter was listed before me on Monday 18 May 2015.

5. Although the Order for the independent representation of the child had been vacated after the defended hearing, Ms Renshall, the ICL before Cleary J, was able, on short notice, to attend and provide assistance to the Court and I record my gratitude for her assistance.

6. The matters which were to be determined were:

   a)Whether the mother should have sole parental responsibility for education.

   b)Whether the mother should have sole responsibility for making medical decisions.

   c)What time the child should spend with her father and under what conditions.

   d)Whether the father should be ordered to sign a passport application for the child.

Sole Parental Responsibility for Education

1. The mother in her affidavit sworn on 13 April 2015 asserts that the father refuses to discuss education plans for the child with her. In her affidavit at paragraphs 44 and 45 she says:

   I have contacted the father by email in relation to discuss the child’s High School enrolment needs after the Vice Principal of [G School] has asked me to start looking for the appropriate High School for the child.

   The father is unwilling to discuss education and has not responded to my email of 26 February 2015.

2. The mother sent an email to the father on 26 February 2015 which read:

   I need to start applying to high schools for enrollment (sic) for the child.  Will you give me your consent to my applying to high schools for enrollment (sic) for the child?

3. The father did not respond to the email. In circumstances where the child is in Year 3 at the local public school it is understandable that, in the absence of any further information provided by the mother, the father did not consider it necessary to start considering high schools when the child will not be attending high school until 2019.

4. In her affidavit sworn 15 May 2015, at paragraph 111 and following, the mother sets out the evidence upon which she seeks to rely in asking the Court to make orders that she have sole parental responsibility for education. The mother provides no further relevant evidence other than the email to which reference has been made.

5. B is currently in a mainstream public school but it may be that she will not be able to attend a mainstream high school depending upon her progress. the child has been diagnosed as having Autism Spectrum disorder. I accept that the process of arranging high school for the child may be difficult and that it is necessary for enquiries to begin to be made.

6. The first time that the father became aware that there was any recommendation that enquiries in relation to the child’s high schooling should be commenced now was in the course of the hearing on 14 May 2015.

7. After Court adjourned on that day the father made arrangements to speak to the Principal of the child’s school. In his affidavit sworn on 18 May 2015 the father says at paragraph 5:

   I wish for my daughter to remain at [G School] where I am told she is doing well.

   I am happy with the staff there.

   In regards to High School I have only recently made enquiries into that.

   As I said I would I spoke with the principal of [G School] Ms W on Thursday 14/5/15 straight after leaving court.

   She explained the process involved and gave me some numbers to call.

   More assessments of my daughters progress need to be done in order to find an appropriate high school for her.

   At this point in time this is as far as I have got in relation to my daughters high schooling.

   While I understand it is important to plan for the future, my daughter is currently in year three and will not be attending high school until 2019.

   No one I have spoken to believes that this is an urgent issue that needs to be addressed right now.

   [As per original]

8. The mother has, previously, removed the child from school without consultation with the father and, again without consultation with the father, enrolled her in a different school. 

9. I do not accept that the father’s failure to respond to the mother’s email of 26 February 2015 indicates that he is not prepared to co-operate with her in coming to an agreement about the best possible placement for the child for her high school.

10. Each of the parties should be aware that they are required to provide to the other information in relation to the enquiries that they have made and the proposals that they consider appropriate for the child and to make a bona fide effort, having all of the information available to both of them, to reach an agreement.

11. The mother’s application for sole parental responsibility in relation to education is dismissed.

Sole Parental Responsibility in Relation to Medical Issues

1. In order to understand the significance of this issue it is necessary to understand a little about the child. In her judgment at paragraph 6 Cleary J stated:

   The statement of agreed facts which was handed up [reference removed] is a snapshot of the family and is as follows:

   [The child] born … 2006 is the daughter of [Ms Feaks] born … 1971 and [Mr Ritchie] born … 1973.   [The parties] had a brief relationship that lasted approximately five months and the parties separated on a final basis before [the child] was born.

   When [the child] was approximately three years of age she was diagnosed with autism and as a result of this she suffers from a myriad of medical issues, including but not limited to, sleep disorders, gastro-intestinal, significantly delayed speech, significantly compromised comprehension and social interaction.

2. Dr I, who was the child’s paediatrician until February 2013, gave evidence before Cleary J who summarised his evidence as follows:

   [Dr I] was the child’s paediatrician between April 2012 and February 2013.  He confirmed a confident diagnosis of Autism for the child.  He described her as having major problems with communication and social interaction and that she met the DSM criteria for intellectual delay.  [Dr I] had consulted with the child and the mother for insomnia.  He used the phrase “very significant Autism”.

3. At Order 6 Cleary J restrained the mother from seeking medical attention for the child from any doctors other than Dr E and her General Practitioner, Dr F, without the father’s prior written consent.

4. A real dispute has arisen between the parents about the child’s attendance upon Dr X.

5. The mother in her affidavit sworn on 15 May 2015 deposes that until the Orders of 12 August 2014 the father had consented to the child being treated by Dr X and that the father himself had both consulted with Dr X and had contributed to the payment of treatment provided by Dr X. The mother deposes that the child has been under Dr X’s care since she was three years old and to her belief that it was an unintended oversight that Dr X was not included in the list of the child’s treating doctors.

6. Dr X is a paediatrician who specialises in the treatment of Autism. The father regards Dr X’s treatments to be unorthodox. The mother believes that the child’s condition has improved, because of Dr X’s treatment, to the extent that she is now not regarded as suffering from a severe disability but that her condition has been re-assessed as a moderate disability.

7. Dr E, the child’s paediatrician, having taken over from Dr I in about March 2013, gave evidence in relation to the treatment that was being prescribed by Dr X. Cleary J sets out the effect of Dr E’ evidence as follows:

   [Dr E] was asked about the biomedical supplements which the mother has been buying and administering to the child. He answered in a compassionate way that since they were apparently doing no harm, there was no reason not to try them, but he had not prescribed those supplements for the child.

8. The mother in evidence relies upon a letter provided by Dr F who is the child’s General Practitioner. Dr F states:

   [B] has long term rapport with dr (sic) W who can examine her in (sic) way not allowed by other drs (sic) andshe (sic) has responded well to his latest treatments,

   She would benefit by continuing to see him

9. There is no evidence that the mother has at any time sought any treatment for the child that is inappropriate or that she has been other than focused on obtaining the best possible treatment for the child. 

10. In circumstances where a disagreement between the parents prevents the mother from arranging treatment for the child which the mother believes is of assistance and which Dr E gave evidence, is benign, the only way of addressing the impasse is to provide for the mother to have sole parental responsibility for the child’s medical treatment. 

11. However the father should be advised of every practitioner whom the child consults and authorised to obtain from that practitioner any information in relation to the child’s welfare and medical treatment.

The Father’s Time with the child

1. The father has never spent time with the child pursuant to the Orders made by Cleary J.

2. On 5 November 2014 a contravention application brought by the father was heard by Le Poer Trench J. His Honour made an order providing for makeup time to take place on Sunday 16 November 2014 on the same conditions as those imposed by Cleary J. That time did not occur. 

3. In the course of the hearing on 18 May 2015 the mother told the Court that she was more than happy for the child to spend time with her father but that the child is refusing to go with her father because he has not signed an application for a passport. The mother told the Court that she would facilitate time between the child and the father provided that the child has a passport.

4. Contrary to the mother’s statements made from the bar table, the statements on oath contained in her affidavit sworn 15 May 2015, portray a rather different view of the mother’s attitude to the child spending time with her father. 

5. At paragraph 47 of the affidavit the mother says:

   While ever the child is unable to obtain a passport and have overseas travel I will not provide contact.

6. At paragraph 48 the mother says:

   While ever I am unable to have Sole Parental Responsibility for Medical, Education and Passport I will not be providing contact.

7. At paragraph 49 of the affidavit the mother says:

   [B] has said that she does not want to see her father because of all the grief he has caused the child and myself by obstructing her basic needs been met. the child is particularly angry at the father because he has obstructed her obtaining a passport and travelling overseas with myself and our family friends.

8. I accept the submission of the ICL that, in the event that the child has expressed such a view, it could only be because of information provided to her by the mother. I am exceedingly sceptical that the child has in fact said anything of the sort, having regard to the evidence of Dr E, in the proceedings before Cleary J, that the child is non-verbal and Dr I’s evidence as to her intellectual delay. The sentiments that the mother expresses are unlikely to be within the child’s understanding or ability to intellectualise and are more likely to represent the mother’s attitude towards the father.

9. That the child would benefit from spending time with her father is made abundantly clear in the reasons for judgment of Cleary J. 

10. At paragraph 93 of the judgment her Honour said:

    [Dr I] was asked what he thought about the proposition put forward by the mother that the child should have no relationship with the father.  He said this:

    I think [the child] is always and will become more and more a higher maintenance child.  A number of carers will need to be involved in her care.  The family circle is the best source of those who can offer support over time. 

    Most significantly he made this statement:

    One sole carer will fall over to the detriment of that person and also to [the child].

11. Her Honour accepted that evidence.

12. The paternal grandmother was present at the Court and indicated, through the ICL, that she was prepared to be present on any occasions when the child spent time with her father.

13. At paragraph 95 of the judgment her Honour says:

    [Dr I] expressed the opinion that a supervisor for time between the child and her father could be a family member and that [Ms C] was a reasonable proposition for that role, on the basis that she was a loving grandmother with an historical relationship with the child.  He said the criterion for a good supervisor for the child would not so much be an expert knowledge of autism, but a good knowledge of the child’s problems and how to address them.

14. The mother indicated to the Court that she did not accept that the paternal grandmother was an appropriate supervisor for the child. She did not, however, present any evidence to support or explain her position. She offered, by way of compromise, that she would herself be in attendance at any visit between the child and her father with the paternal grandmother. 

15. The father, from the bar table, told the Court that although this was not, in his view, an ideal situation, it had in the past been workable. The father did not object, in principle, to the mother being present on the first few occasions when the father’s time with the child resumed and that position was also supported by the ICL. 

16. The reasons that it is in the child’s best interests to spend time with her father are set out clearly and in detail of the judgment of Cleary J. Nothing in the evidence before me suggests that there should be any change to the Orders which her Honour made after careful consideration. Accordingly, the Orders for the child’s time with her father will be re-instated but without the need for professional supervision on the basis that for the first three occasions when the child sees her father the mother can be present. Thereafter the time between the child and her father can proceed without the mother being present.

OTHER MATTERS

1. The mother presses the Court to make an order that the father sign passport applications for the child.

2. It may be that, if the father is able to enjoy the time with the child that Cleary J ordered, he will, after a period of time, be prepared voluntarily to sign any passport application. If that is not the case then the mother should have leave to make an application for the issue of a passport, without the consent of the father, once the father and the child have had not less than six occasions of time together. 

3. The statements by the mother in her affidavit, to which reference has been made earlier in these reasons, give real concern to the Court about the mother’s understanding of her obligations to comply with orders of the Court. The making of orders in relation to the time that the child spends with her father confers obligations on the father but also obligations on the mother. It is her obligation, just as much as the father’s, to ensure that the child spends time with her father in accordance with these Orders.

4. At the commencement of the hearing on 18 May 2015 the mother was advised that she should seek legal advice about the consequences of her refusal, on oath, to comply with orders of the Court. The mother’s statements, under oath, prima facie, constitute a flagrant challenge to the authority of the Court.

5. It is to be hoped that the mother, having been present in Court on 18  May 2015 and having read and considered these reasons, might have acquired some understanding of her obligations but, in the event that this has not been the case, I propose to allow the ICL to have the matter relisted on short notice. 

6. Accordingly, I make the Orders set out at the commencement of my reasons for judgment.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 25 May 2015.

Associate: 

Date: 25 May 2015