Gabbard & Kelleher
[2021] FedCFamC1A 64
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Gabbard & Kelleher [2021] FedCFamC1A 64
Appeal from: Gabbard & Kelleher [2021] FCCA 363 Appeal number(s): NOA 17 of 2021 File number(s): BRC 3130 of 2019 Judgment of: STRICKLAND, WATTS & HOGAN JJ Date of judgment: 12 November 2021 Catchwords: FAMILY LAW – APPEAL – PARENTING –Where the elder child has significant additional needs – Where the father raises concerns about the mother’s parenting capacity – Where the primary judge did not misapply the s 60CC considerations – Adequacy of reasons – Where the primary judge did not err in making findings of fact – Appeal dismissed. Legislation: Family Law Act 1975 (Cth) s 60CC Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
House v The King (1936) 55 CLR 499; [1936] HCA 40
Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Number of paragraphs: 134 Date of hearing: 13 July 2021 Place: Heard in Brisbane, delivered in Sydney Counsel for the Appellant: Ms McDiarmid Solicitor for the Appellant: McInnes Wilson Lawyers Counsel for the Respondent: Mr Hanlon Solicitor for the Respondent: Queensland Legal Practice Counsel for the Independent Children's Lawyer: Mr Dodd Solicitor for the Independent Children's Lawyer: Legal Aid Queensland ORDERS
NOA 17 of 2021
BRC 3130 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR GABBARD
Appellant
AND: MS KELLEHER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
STRICKALND, WATTS & HOGAN JJ
DATE OF ORDER:
12 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The Appeal is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gabbard & Kelleher has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRICKLAND, WATTS & HOGAN JJ:
INTRODUCTION
By way of Notice of Appeal filed 26 March 2021, Mr Gabbard (“the father”) appeals parenting orders made by a judge of the Federal Circuit Court (now the Federal Circuit and Family Court of Australia (Division 2)) on 26 February 2021. Ms Kelleher (“the mother”) opposes the appeal, as does the Independent Children’s Lawyer (“the ICL”).
The orders made by the primary judge are that the two children of the marriage, aged six years and nearly four years at the time of the trial, live with the mother and spend time with the father each alternate weekend from Friday afternoon to Monday morning; half school holidays, commencing when the younger child starts grade 1; and special days. The mother was granted sole parental responsibility for major long term decisions in relation to the children subject to a requirement to consult with the father before such decisions were made and to inform him of the decision after it had been made. Other ancillary orders were made, including orders directing the mother to facilitate the father receiving information about the elder child’s medical care.
The elder child has complex medical needs which require a high level of care. He has a rare genetic disorder, which will have an unknown impact upon his health over the course of his life. The disorder is associated with multiple chronic disabilities and illnesses including epilepsy. Additionally, the elder child has been diagnosed as suffering from autism spectrum disorder, significant communication impairment, severely limited daily living skills and low muscle tone. The younger child has developed behavioural difficulties and there is a question about whether he has autism.
Central to the issues before the primary judge were, the father’s assertion that the mother posed an unacceptable risk to the management of the elder child’s medical condition, and the mother’s assertion that the father posed an unacceptable risk to the children as a result of having perpetrated coercive and controlling family violence.
The father challenges the primary judge’s decision asserting that her Honour erred when considering whether the mother posed an unacceptable risk to the elder child’s medical care as an initial discrete issue and failed to follow the “legislative pathway”; failed to properly consider s 60CC(3)(f) of the Family Law Act 1975 (Cth) (“the Act”); failed to have regard to evidence presented in the father’s case; failed to adequately explain her Honour’s conclusions; and that her Honour made a material error of fact.
For reasons which follow, the appeal will be dismissed.
BACKGROUND
The mother and father began living together in 2006 in the United Kingdom. They married in April 2011 and moved to Australia in 2014. They separated on 4 June 2018.
Whilst the parties were together, the mother remained at home with the children whilst the father undertook paid employment. After the parties moved to Australia from the United Kingdom, both were involved in the care of the children.
At the time of the separation, the elder child was aged 3 years and the youngest 1 year of age. Initially the mother withheld the children from the father for a short period but after a mediation in June 2018, short visits up to three times a week were instituted. Between 3 July 2018 and 29 July 2018, the father withheld the elder child during which time the Department of Children, Youth Justice and Multicultural Affairs (“the Department”) investigated the mother’s attention to his medical needs including the administration of medication. The child was returned to the mother at the end of July 2018.
After this time the mother commenced videoing herself administering medication to the elder child day and night and making a copy available to the father.
On 28 March 2019 interim orders were made by a judge of the Federal Circuit Court providing for the children to spend three nights a fortnight with their father. Further interim orders were made (by consent) on 4 September 2019 (amended 10 September 2019) which increased the children’s time with their father to four nights/five days a fortnight and regarding immunisation for both children. That was the parenting arrangement in place at the time of the hearing before the primary judge. Those orders also required both parents to administer medication as recommended by medical professionals and provided a regime for the immunisation for both children.
REASONS OF THE PRIMARY JUDGE
The hearing before the primary judge took place over three days in December 2020 and one day in February 2021. Her Honour delivered the reasons for judgment three weeks after final submissions and described the proceedings as “a very difficult matter” (at [1]) and “finely balanced” (at [137]). In final submissions to the primary judge, both counsel for the ICL and for the father, on more than one occasion, described the decision her Honour had to make as “feathers on a scale” (see for example transcript 4 February 2021, p.7 lines 7–8 and p.56 line 47).
The parents were in dispute about all issues relevant to the decisions her Honour was required to make (at [2]).
The primary judge set out the proposals of each parent and the ICL (at [4]–[10]). The proposals of the parents mirrored one another. Each sought sole parental responsibility, that the children live with them and that the children spend alternate weekends and half the school holidays as well as special days with the other parent. In the event the mother’s application was successful, there would be a reduction in the time that the children had been spending with the father on an interim basis, but the father sought the same time for the mother if the children lived with him.
The ICL’s proposal was conditional upon the findings of the primary judge made in respect of the two key issues that the parties presented for determination. If the primary judge found that the mother presently posed an unacceptable risk of harm from failure to attend to the elder child’s medical condition, then the ICL proposed that the children live with the father and spend time with the mother on four occasions per week but no overnight time. In the event that the mother’s assertions in relation to family violence warranted a finding that the father posed an unacceptable risk of harm to the children, the ICL supported the mother’s application. The ICL’s third position, if neither parent posed an unacceptable risk of harm, was unclear. The document entitled “ICL PROPOSED FINAL ORDERS” and part of the ICL’s oral submissions provided that the children live with the father. However, at the end of her final submissions, counsel for the ICL concluded as follows in the event the mother was not found to be an unacceptable risk to the elder child’s medical care:
…and it would be at that point, I would urge your Honour, to – well, look at the chronology of the matter. The children have always lived with their mother. The children have a great attachment with their father, there is no doubt about that ---
…
But it would be very difficult for your Honour, in those circumstances, to uproot the children from their mother, who [they have] always lived with.
(Transcript 4 February 2021, p.32 lines 28–42)
There is no complaint about the primary judge’s understanding of the respective proposals of the parents and the ICL.
The primary judge sets out:
·matters by way of background and the parenting arrangements that existed during the parties’ cohabitation and after their separation;
·the health and special needs of each of the children, recording in relation to the elder child that he had sixteen different medical professionals assisting with his care (at [22]); and
·the history of the applications by each of the parties in a state court for domestic violence orders, including one filed by the father on 15 January 2021 whilst the matter was part heard before the primary judge. In that application the father alleged that the mother’s behaviour in respect to the medical care of the elder child was “becoming more erratic and unpredictable” (at [25]). On the very morning of the last day of the hearing before the primary judge, the father had obtained temporary domestic violence orders, which amongst other things, excluded the mother from entering a zone of 100 metres around any medical appointment. In the context of a reference to the father’s coercive and controlling behaviour, the primary judge expressed concern over the father simultaneously going to another jurisdiction to litigate the very issue the primary judge was hearing and determining (at [27]).
At [29]–[79], the primary judge considered the allegation by the father that the elder child was at risk in the mother’s care because she was not appropriately caring for his special needs associated with his medical conditions. In doing so, her Honour discussed specific allegations that the mother had:
·failed to administer the drug Tegretol prescribed to prevent seizures;
·failed to vaccinate the children;
·failed to seek medical attention;
·delayed a hearing test;
·taken the elder child to unnecessary medical appointments; and
·mismanaged the elder child’s recent seizure activity.
The primary judge concluded the evidence did not support a finding the mother was an “unsafe parent” in relation to the elder child’s medical issues (at [77]).
The primary judge next turned to the mother’s case:
·that the father’s controlling behaviour amounted to family violence;
·the impact of the father’s unilateral withholding of the elder child between 3 July 2018 and 29 July 2018 in circumstances where that child had only been apart from his mother for one day prior to that time; and
·the father making allegations about the mother having serious mental health problems where there was no evidence to support that position adduced by him during the trial.
The primary judge is critical of the father for coercive and controlling behaviour at the time of the separation in relation to a letter that he wrote to a real estate agent from whom the mother was attempting to rent a property, and in relation to monies that he removed from the parties’ joint account leaving no money available to the mother and the children in circumstances where he knew that she was not entitled to any Australian benefit given that she was not an Australian citizen.
At [27] the primary judge found:
27The father’s behaviour at separation was coercive and controlling behaviour and is set out at paragraphs [81]–[87] of this judgment. The recent Domestic Violence Order application filed by the father is also of concern because it seeks to litigate the very issues I am hearing and determining. Furthermore, the allegations about the mother’s mental health in that application have not been raised in the father’s evidence although he raised them with the Family Report Writer.
Whilst the primary judge found “[t]hese behaviours are very concerning”, she concluded it was not possible to make a finding of “domestic violence that would pose a risk to the children” (at [86] and [87]).
The other specific issues that the primary judge deals with are the father’s concern about unconventional views held by the maternal grandmother in relation to medical issues and the mother’s unilateral decision to relocate away from where the father lived. The primary judge’s findings about those matters are not the subject of, nor relevant to any challenge by the father in this appeal.
The final specific issue discussed by the primary judge is the behaviour of the younger child and the evidence of Dr AA, the younger child’s therapist.
At [99]–[125], the primary judge discussed the mandatory statutory considerations. In doing so, the primary judge is clearly mindful that when deciding to make a particular parenting order, she must regard the best interests of the children as the paramount consideration. In determining what is in the children’s best interests, her Honour considers relevant matters set out in s 60CC(2) and (3).
The primary judge first deals with s 60CC(2)(a) and has no doubt that there is benefit to the children having a meaningful relationship with both their parents, but notes that the conflict between the parents is so significant that neither of them is advocating for any order that approaches a shared care arrangement, but rather that the “unfortunate situation” is the children will have a primary carer and “a very part time other parent” (at [101]).
The primary judge then turns to the second primary consideration and refers to the extensive discussion earlier in the reasons about whether the mother poses an unacceptable risk to the children and whether the father poses a risk because of “domestic violence”.
Her Honour then deals with various s 60CC(3) considerations. Her Honour found that the expressed views of the children were of no assistance in the decision her Honour had to make. The primary judge referred to, not only the children’s relationship with their parents but also, comments upon the positive relationship the children have with the maternal grandparents. The primary judge considered s 60CC(3)(c), (ca) and (f) in a general discussion about discharge of parenting responsibilities and parenting capacity. Finally turning to s 60CC(3)(d), the primary judge, when discussing the likely effect of any changes in the children’s circumstances, considered that the mother’s proposal would offer the children the benefit of stability and consistency of routine.
Having discussed relevant mandatory statutory considerations, the primary judge agreed with the positions of the parties in relation to parental responsibility, namely that there should be an order for sole parental responsibility in favour of the party who is to be the resident parent.
Lastly, the primary judge turned to that question, as to with whom the children should ordinarily reside. Her Honour observed that the family report writer described this to be a “finely balanced” decision (at [130]).
The primary judge concluded that that fine balance is resolved by not disturbing the position whereby the mother remains the primary carer. As a result, the primary judge made an order in accordance with the mother’s proposal in respect of parental responsibility, for the children to live with the mother, and for the children to spend time with their father three nights a fortnight and half school holidays once the youngest child had commenced school. In making the order that the children live with their mother, the primary judge, at [134]–[137], adopted the final oral submission of counsel for the ICL.
GROUNDS OF APPEAL
It must be remembered that this is an appeal from a discretionary judgment, and in House v The King (1936) 55 CLR 499 at 504–505, the plurality said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts on a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
Did the primary judge err by elevating the consideration of whether the mother posed an unacceptable risk to the eldest child’s medical care so that it was determinative of what was in the children’s best interests? (Ground 1(a))
This ground asserts that because the primary judge considered the risks to the elder child in the mother’s care at [29]–[80] of the reasons before commencing an overall consideration of s 60CC(2) and (3) matters, the primary judge failed to determine orders that were in the best interests of the child “having regard to the legislative pathway” (mother’s Summary of Argument filed 7 June 2021, paragraph 9).
It is often the case that reasons for judgment will deal with specific issues, particularly those presented by the parties as central controversies between them, before dealing with the statutory considerations more generally. There is no legislative imperative as to when the matters in s 60CC(2) and (3) should be dealt with as long as it is seen that they are addressed. Further, there is no requirement to deal with them seriatim, or even to deal with all of them if some are not relevant. Reference can be made to an earlier finding on a specific issue in the general discussion of statutory considerations. That is how the primary judge structured the reasons in this case and her Honour did not err in so doing.
Nor could it be said that by that structure the conclusions her Honour reached about the mother’s capacity and attitude relevant to the elder child’s medical care predetermined what parenting orders the primary judge found were in the children’s best interests. It is readily apparent that her Honour looked to what was in the best interests of the children in arriving at the parenting orders her Honour made.
There is no merit in Ground 1(a).
Did the primary judge err by misapplying s 60CC(3)(f) and not properly assessing which parent had the greater capacity to provide for the physical needs, including the medical needs, of the elder child, in circumstances where he was seriously disabled and required significant ongoing medical intervention? (Ground 1(b))
Section 60CC(3)(f) provides that when determining what is in a child’s best interests, the court must consider:
(f) the capacity of:
(i)each of the child’s parents …
to provide for the needs of the child, including emotional and intellectual needs
The primary judge dealt with this subsection at [118]–[122] of the reasons, finding that both parents individually were capable of caring for the emotional and intellectual needs of the children. Those paragraphs focus though upon the inability of the parents to collectively do so referencing the toxic nature of changeovers and in particular, the effect that that was having on the younger child. Here, the primary judge referred to the family report writer’s opinion as to the parents holding persistently negative views about the other, and the likely impact that would have upon the children.
The father complains that the primary judge does not make an assessment in this part of the reasons of the respective capacities of each of the parents to provide for the needs of the elder child for medical treatment. The reasons, and more particularly the consideration of s 60CC(2)(b) and s 60CC(3)(f), need to be read together. Thus, when considering the second primary consideration, the primary judge referred to her earlier discussion at [29]–[80] as to whether the mother’s capacity to provide for the elder child’s medical needs posed an unacceptable risk to the elder child (at [102]).
It is apparent that the focus of the primary judge’s attention on the mother’s capacity to deal with medical issues under s 60CC(2)(b) of the Act largely arises from how the father presented his case to the primary judge.
When dealing with s 60CC(3)(f) in his case outline filed 27 November 2020 at paragraph 12, the father contended:
The Mother and maternal grandparents cannot provide for the children’s medical needs and therefore intellectual needs. The mother is otherwise capable of providing for the children’s emotional needs. The Father is capable of providing for the children’s needs in all aspects.
(Emphasis added)
When dealing with s 60CC(2)(b), the father contends in his case outline filed 27 November 2020 at paragraph 2:
There is a need to protect the children from being subject to serious neglect regarding their health, as posed by the Mother’s lack of insight into and misunderstanding of the children’s medical issues, particularly [the elder child].
Counsel for the father made no reference to s 60CC(3)(f) of the Act during oral submissions at trial but did make a passing reference to the father being better able than the mother to deal with medical issues (Transcript 4 February 2021, p.51 line 35) and a more general submission that the father was the parent on the “front foot” and the mother was on the “back foot” in relation to the elder child’s medical needs (Transcript 4 February 221, p.53 lines 45–46). However, the father’s primary contention during final submissions continued to be that the mother was an unacceptable risk with respect to health, if the father did not have sole parental responsibility (Transcript 4 February 2021, p.51 line 45 to p.52 line 5).
The ICL prepared an extensive chronology which included reference to the father’s allegations in relation to the mother’s capacity to meet the elder child’s medical needs and in respect to each of those allegations the relevant parts of documents obtained from the hospital (V Health), treating medical professionals (Dr H, Dr J, Dr T, Dr Z (W Medical Centre), Dr S (BB Medical Centre)), the Department and the Police Service. The primary judge also had the advantage of hearing oral evidence from Dr H (the elder child’s treating paediatric neurologist who has been seeing him since March 2018) and having before the Court an affidavit of Dr J filed 14 February 2020. The primary judge made clear during oral submissions that she had read all of this material, and her Honour generally invited submission from the ICL and the father about all specific complaints in respect of the mother’s parenting capacity to care for the elder child’s medical needs.
As indicated, the discussion at [29]–[80] dealt with the father’s complaints, amongst others, that the mother had failed to administer medication, to vaccinate the children, to seek medical attention and that she had mismanaged the elder child’s recent seizure activity.
At [77] the primary judge specifically concluded that “the evidence does not support a finding the mother is an unsafe parent in relation to [the eldest child’s] medical issues”. Before us, counsel for the father accepted that the corollary of this conclusion was that the mother was a safe parent in relation to the elder child’s medical issues.
In addition, the paragraphs referred to in the discussion under s 60CC(2)(b) include [64]–[67] where the primary judge referred to the father’s concern that the mother seeks medical attention for the elder child when she does not need to and, in that context, at [67] the primary judge observed “[i]t however has to be seen in the context of the father’s extensive list of complaints or concerns about the mother’s care for [the elder child]”.
It is accordingly plain that the primary judge was cognisant of the volume of complaints made by the father against the mother in respect of the medical care of the elder child, and her Honour was satisfied of the mother’s capacity to care for the medical needs of the elder child notwithstanding those complaints.
The primary judge concluded that the mother’s capacity to attend the elder child’s medical needs was adequate. The father’s capacity though was never raised as an issue by the mother. Whilst not explicitly doing so, it is tolerably clear that the primary judge did not agree that the father was “on the front foot” and the mother was “on the back foot” in relation to the elder child’s medical care.
The fact that the primary judge did not specifically refer to the medical needs of the elder child when discussing s 60CC(3)(f) does not mean that the primary judge did not demonstrate that she was aware of the controversy in relation to this aspect of the mother’s parenting capacity when the reasons are read as a whole, fashioned as it was in response to the way the case was presented to the primary judge.
Under this ground, the father also complains that the primary judge did not deal with Dr AA’s evidence in the discussion of the s 60CC(3)(f) considerations. However, the father did not make a submission to the primary judge that Dr AA’s evidence was relevant to this particular statutory consideration and on appeal the father is bound by the conduct of his case at trial (Metwally v University of Wollongong (1985) 60 ALR 68).
The primary judge had at [94] quoted from a report of Dr AA who had been engaged by the parents to assist them in managing the younger child’s behaviour. The father argues that report contains a description by Dr AA, from informal observations of the father interacting with the children, that he displayed a high level of affection, patience and parenting ability with the children and that further, he was attentive, kind and highly attuned to their needs. The father argues that this was contrasted by Dr AA’s informal observations of the mother in which Dr AA noted that the mother was attentive to the children, however at times she was not attuned to their behaviours or the appropriate impact of their actions on those around them. The father refers to the fact that Dr AA opined that the children were less controlled in the mother’s care at Dr AA’s office and that the mother was only able to offer minimal suggestions regarding what was contributing to the difficulties of the younger child.
As the ICL’s Summary of Argument filed 5 July 2021 points out, the father’s Summary of Argument filed 7 June 2021 at paragraphs 14–16 does not set out all of what the primary judge observed in relation to Dr AA’s report. It also noted that the mother “presented as patient and kind towards each child” (at [94]). In her oral submissions before us, counsel for the father acknowledged that oversight.
As counsel for the ICL submits, Dr AA’s observations were made in her role as a therapist (at [97]). Before the primary judge, counsel for the father conceded that the observations were made in the absence of reading “any collateral evidence” (Transcript 4 February 2021, p.47 lines 24–25). The observations were also not in the context of “any opinion that would define the reason for [the younger child’s] distress” (at [96]).
Accordingly, we do not accept the father’s argument that Dr AA’s observations were a “very significant matter for the learned trial judge to consider” (father’s Summary of Argument filed 7 June 2021, paragraph 17).
Accordingly, Ground 1(b) fails.
Adequacy of reasons
A central assertion in the father’s grounds of appeal is that whilst the primary judge recorded findings in relation to evidence and reached conclusions about a number of areas, the primary judge undertook no exercise of analysis to develop what the father asserted was simple repetition of evidence to a pronouncement of broad findings.
Reasons will be inadequate if an appeal court is unable to ascertain the reasoning upon which the decision is based or justice is not seen to have been done (Bennett and Bennett (1991) FLC 92-191 at 78,266-78,267, quoting Sun Alliance Insurance Ltd v Massoud [1989] VR 8). The reasons should enable the parties to identify the basis of the judge’s decision and the extent to which their arguments have been understood and accepted (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279). Reasons need not be “lengthy or elaborate in order to be adequate” (Thorne v Kennedy (2017) 263 CLR 85 at [61]).
Did the primary judge provide adequate reasons in respect of the parenting capacities of the parties that related to the children’s physical needs including the medical needs of the elder child and properly presenting that child in a timely way for medical care?
(Grounds 2(a)-(b))The father argues that given that his trial affidavit was replete with very substantial detail about the medical needs and behavioural issues of the two children and what each of the parents had done or omitted to have done in regard to those issues, the primary judge did not engage with that aspect of the father’s case and the reasons for judgment do not deal with the father’s capacity in this regard. The father complains there was not a “robust analysis of the evidence” (father’s Summary of Argument filed 7 June 2021, paragraph 9).
There was a voluminous amount of subpoenaed material that was tendered into evidence. It is not to be expected that the primary judge would refer to it all in detail, in her Honour’s reasons. It also should be noted that the ICL in her case outline filed 27 November 2020 provided an extensive summary of material in subpoenaed records, and the parties proceeded on the basis that those entries were faithfully recorded. Some of the primary material that was apparently in the subpoenaed records, as recorded by the ICL, was not tendered in evidence at trial despite the volume of material otherwise tendered. The primary judge also does not explicitly analyse all statements in the father‘s affidavits about medical advice that he asserted he received.
On occasions that evidence does not necessarily correspond with the independent medical record. For example in his affidavit filed 4 November 2020 at paragraph 56 the father alleged that on 12 June 2019 “[t]he staff tested [the elder child’s] Tegretol levels which were below 3 which is extremely low. The paediatrician informed me with a reading that low, it was unlikely he was given his recent dose of Tegretol”. However documents from the hospital indicate that “the fact that there is carbamazepine [other evidence indicates this is an alternate expression for Tegretol] levels detectable demonstrates that the medication has been given”. Further, the father records in his affidavit filed 4 November 2020 at paragraph 90, that the results of the elder child‘s sleep study on 18 September 2020 showed “constant seizure related activity”. During the cross-examination of Dr H, counsel for the father asserted that the results of the electroencephalogram (“EEG”) and the sleep test showed “constant seizure activity” (Transcript 3 December 2020, p.139 line 13). As the primary judge records at [73], Dr H’s evidence was that it did not.
Failure to seek medical attention
It is clear the primary judge well understood the father’s primary position. At [29] the primary judge noted:
The father alleges that the [elder child] is at risk in the mother’s care because she is not appropriately caring for the special needs associated with his medical conditions
At [61] the primary judge concluded:
The evidence does not support a finding the mother failed to seek medical attention for [the elder child]. I accept the father has presented with the child at hospital from time to time but the evidence has the mother involved in those hospitalisations.
The father complains that the primary judge did not provide a line of reasoning that allows the father to understand the findings made in the first sentence of [61].
Before us counsel for the father asserted that the primary judge did not discuss various occasions referred to in the father’s evidence where the elder child was allegedly at risk in the mother’s care because she failed to seek medical attention for him. The first relates to events on 20 May 2018 as relayed by the father in paragraph 27 of his affidavit filed 4 November 2020. The parties had not yet separated at that time. The father’s evidence is that the elder child was sick. On 20 May 2018, he called a doctor to visit the house and the doctor wanted the elder child to go to hospital. Neither party took the child to hospital. The father had to catch a flight at 4.30am on 21 May 2018 to travel for work. The mother took the child to the doctor on 21 May 2018 and the child was sent to hospital by Dr Z. Before us counsel for the father drew attention to the ICL’s record of the hospital notes of 23 May 2018 which say:
Late presentation to hospital with very inconsistent history given by the mother. The mother declined antibiotics even when explained the concern and she also declined the usual antiepileptics.
This event was not one that counsel for the father drew to the trial judge’s attention during final submissions, and her Honour does not specifically deal with this incident in her reasons. Thus the primary judge did not err in failing to find that this was an example of lack of medical attention by the mother, or if it was one, that it should be given weight.
The most serious complaint by the father arises from events on 18 October 2018. The elder child was four years old at the time. He was sick overnight. The maternal grandmother reported that the elder child vomited about five times during the night. The mother attempted to keep him hydrated. The mother texted the father at around 7.30 am to tell him that the elder child was unwell. It is also agreed that the father made an appointment for the elder child to see his general practitioner at 2.50 pm in the afternoon and the mother took him to that appointment. There are competing versions as to the interaction between the parents on this day. The mother’s version is that the father, in his conversations with her, “lost it completely” and was “threatening and belittling” (mother’s affidavit filed 10 March 2020, paragraph 336). It is common ground the father told the mother that he was calling the police to make sure that she took the elder child to the medical appointment. The mother’s evidence about the father’s behaviour is corroborated to some degree by police records which say that the father was “passive aggressive, defensive and demanding” (ICL’s case outline filed 23 November 2020, page 20). The maternal grandmother gives evidence about the father’s behaviour in the general practitioner’s waiting room, ordering her to leave and when she did not, removing the child from the waiting room for about 45 minutes (maternal grandmother’s affidavit filed 12 March 2020, paragraphs 16–19).
The ICL’s record of the notes of Dr Z (the general practitioner) are as follows:
…long consult, following on from consult on Monday, continue to have cough and nasal discharge, in Mum’s care from Monday afternoon, father challenged mother’s account of events past few days and question validity of history…father reports mum only brought to hospital this afternoon due to [police] intervention, mum refutes this and indicate she made appointment and was going to bring him in. Given recent hx and severity… dad indicated would take to ED, Team at [DD Hospital] notified, concerns raised, requested … transport, … is directed to Father’s residence.
(ICL’s case outline filed 23 November 2020, page 20) (As per the original)
The father says that the general practitioner ordered an ambulance because he feared the child might have a seizure. There is nothing in the general practitioner’s notes to that effect. The elder child was taken to hospital by ambulance. The father says that the child became unresponsive during that trip. There does not appear to be any ambulance record about that. The father also asserted that “the senior ER paediatrician informed me the [elder child] was “dangerously ill” and could’ve died had he not been presented at this time, and that this may have been preventable had he attended earlier.” (father’s affidavit filed 4 November 2020, paragraph 50). The primary judge raised this assertion with the ICL during final submissions, who indicated that there was no medical record which corroborated this assertion by the father (Transcript 4 February 2021, p.22 lines 41–45).
At paragraphs 338 to 342 of the mother’s affidavit filed 10 March 2020 she describes what she asserts was the father’s aggressive and dismissive behaviour towards her at the hospital during the eldest child’s hospitalisation on this occasion.
Neither parent was cross-examined about what happened on 18 or 19 October 2018. The only submission made to the primary judge by counsel for the father was a reference to paragraphs49–50 of the father’s affidavit filed 4 November 2020 without further elaboration except noting it as a date the mother failed to seek medical attention. Before us counsel for the father referred to the ICL’s summary in her case outline which she asserted was to the following effect:
The father says the mother was refusing to take [the elder child] to the doctor and he went to the police and he told the mother they would visit her if she didn't present [the elder child] at the doctors. [The elder child] was taken to the hospital by ambulance and became unresponsive.
(Transcript of the appeal hearing 13 July 2021, p.20 lines 16–19)
The primary judge deals with this event at [58]:
On 18 October 2018 the [elder child] had a serious illness where he was suffering from ketoacidosis. This illness will resolve as the child gets older. It relates to [the elder child] not being able to tolerate overnight fasting as well as other children. The treatment is corn syrup that releases glucose overnight. A symptom of the disorder is vomiting. The parents have anti-nausea wafers. They are told to bring the child to hospital if he vomits twice.
Whilst it is correct to suggest that the primary judge did not engage with the competing versions of what happened on 18 and 19 of October 2018, in fairness, the primary judge was not invited to undertake that exercise. It was open to the primary judge to conclude that whilst the elder child was seriously ill on 18 October 2018, that illness was not a present danger to the child at the date of the trial. The evidence indicates that the mother attended to the elder child overnight, informed the father in a timely way of the child’s illness and took the elder child to a medical appointment on that day. There is no compelling evidence that the mother failed to seek medical treatment on this occasion and there was no error by the trial judge in failing to find otherwise.
Before us, counsel for the father next referred to events on 13 February 2019 saying, “both parents attended the general practitioner who advised admission to hospital immediately. The mother wanted to go home. [The elder child] was hospitalised for three days” (Transcript of the appeal hearing 13 July 2021, p. 20 lines 21–24). Whilst that may be the father’s memory, the ICL records Dr Z’s medical notes as follows:
Surgery Consultation – Dr Z
Both parents attend consult, lengthy discussion with parents – father wanting to take to hospital based on the 2 past presentations, given lesions on fingers likely best review in hospital, initially considered review with Dr G however on balance of hx, presentation and finger lesions for hospital review, mum concerned re: taking [the elder child] to hospital may expose him to illness for which I agree however as consult progressed agreed with father and err on side of caution.
(ICL’s case outline filed on 23 November 2020, page 22) (As per the original)
It is clear Dr Z was initially of the same view as the mother in relation to taking the child to hospital.
Before us counsel for the father then referred to the primary judge’s failure to mention events on 12 June 2019, where the father alleged that the elder child had been unwell at changeover (father’s affidavit filed 4 November 2020, paragraph 56). The father took the elder child to hospital. The hospital reported that when the elder child presented in the emergency department he looked well and was sent home. The elder child was however later taken back to hospital by the father and admitted. The ICL records a progress note diagnosing likely viral illness/influenza (ICL’s case outline filed 23 November 2020, page 25). Based upon the independent hospital record, no negative conclusion could be drawn in respect of the mother’s care when in fact on first presentation at the hospital the child did not appear to be unwell (Exhibit 4). Again whilst paragraph 56 of the father’s affidavit filed 4 November 2020 was referred to by counsel for the father in final submissions to the primary judge, there was no argument developed arising from it. It is not an error for the primary judge to fail to mention events of this day.
Whilst counsel for the father before us did not make reference to it in this context, before the primary judge, counsel for the father referred to events on 24 July 2019 as an example of the mother’s failure to seek medical attention (Transcript 4 February 2021, p.57 line 17). The elder child was sick at changeover. The father says that after he got the elder child home he contacted the Hospital V who advised him to bring the child in and that on the way he vomited and had a seizure. He was admitted for observation, relocated to the CC Hospital and kept overnight for observation.
The ICL’s case outline filed 23 November 2020 at page 26 extracting the hospital progress notes records:
Progress Notes ED: Vomiting this morning, had morning does of Tegretol but immediately vomited the dose. Was with mother and went to dad’s this morning, when father is alone he tells staff he is concerned medical management is not occurring at mother’s house. Father would like Tegretol levels to ensure patient getting meds. Staff say they can do this if already collected enough blood (he suggested this after blood collected). Admitted to Paediatric Ward.
Progress Notes Inpatient: Transferred to [CC] Hospital at father’s request, both parents present for transfer on 25.7.2019.
Discharge Summary 25.7.19: Carbamazepine level pending.
(As per the original)
It is to be noted that the hospital notes before the primary judge do not record the father giving any history of a seizure on the way to hospital and that the hospital records that both parents were present when the child is transferred to another hospital for observation.
The child went home from the hospital with the mother. Again, at trial, apart from referring to paragraph 57 in the father’s affidavit filed 4 November 2020, his counsel did not develop any argument as to what findings the primary judge should make arising from the circumstances of this hospitalisation, perhaps apart from the implication that the mother should have sought earlier medical treatment. It was not an error by the primary judge not to make that finding.
Counsel for the father refers to his evidence at paragraph 59 of the father’s affidavit filed 4 November 2020 about events on 1 and 2 October 2019. On 1 October 2019 the father says that the mother had informed him prior to changeover that the elder child had diarrhoea. The mother says that at that time the child did not appear to be otherwise sick or have a virus. The father took him to the hospital on 2 October 2019 and he was admitted with a gastro type illness. The elder child was discharged on 4 October 2019. Once again no specific submissions were made to the primary judge about this occasion. Before us counsel for the father also drew attention to Order 8 made on 28 March 2019: “[t]hat in the event the [elder child] becomes unwell the parties shall present the child to the Hospital V forthwith”. The implication being that the primary judge should have concluded that the mother should have taken the child to hospital once he had developed diarrhoea. That suggestion was not however made to the primary judge.
The father also complained that the mother did not go to all medical appointments, however, when that was put to the mother she responded in the following way:
…no. I always try to make the appointments. There’s – I don’t like the children being exposed to the conflict between us. Say for example, after an audiology appointment, [the father] went to the left and yelled out to me “bye crazy” and just – I am embarrassed that he’s speaking to me like that in front of [the elder child] and I don’t want them to be around it.
(Transcript 3 December 2020, p.120 lines 16–20)
There are multiple examples of the mother avoiding a face-to-face encounter with the father in front of a medical practitioner. There are also examples in the evidence of the mother appropriately presenting the elder child to medical practitioners.
Before us counsel for the father submitted that the primary judge should have fully explored all of this evidence when dealing with the question of whether the mother failed to seek medical attention, and not to do so was an error.
First, the primary judge made plain during final submissions that she was aware of the evidence about the events upon which the father sought to rely. Secondly, as already discussed, her Honour was not invited to make specific findings about specific occasions. Thirdly, on some occasions the father’s evidence is not corroborated by and on other occasions not consistent with medical records. Lastly, a judge’s reasons are not required to mention every fact or argument relied upon by the unsuccessful party as relevant to an issue (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]).
The ultimate finding made by the primary judge in the first sentence of [61] was open on the evidence.
Immunisation
The father complains about the primary judge’s treatment of the mother’s reluctance to have the children immunised.
Her Honour deals with this issue at [53]–[56] and [78]. At [53] the primary judge said:
53The mother was not supportive of vaccinating the children initially. Judge Middleton made a consent order on 4 September 2019 amended 10 September 2019 that provided:
3.That within 7 days the mother attends on Dr S and obtains the proposed immunisation schedule for both children.
4. That within 14 days the mother provides the proposed immunisation schedule to Dr J, [the elder child’s] treating Paediatrician.
5. That once Dr J has approved the immunisation schedule, the immunisation of the children shall commence forthwith and both children shall complete the immunisation schedule, in the absence of an emergent issue and/or advice from the child, [the elder child’s], treating Paediatrician.
6. That in the event that Dr J does not approve the immunisation schedule proposed then all parties shall adhere to the alternate immunisation schedule proposed by Dr J.
7. That both parties shall adhere to all treatment recommendations and directions of Dr J, including but not limited to new proposals for treatment of [the elder child].
(As per the original)
As can be seen, the orders set out a process by which Dr S and Dr J (the elder child’s paediatrician) approve an immunisation schedule for the children and required the parents to adhere to that schedule.
At [54] the primary judge reiterated her finding in relation to the mother’s resistance and quotes the text of a progress note from Hospital V dated 1 August 2019 which records its concern about the mother’s attitude to immunisation based upon correspondence from Nurse EE:
54The mother was very resistant to the immunization despite very firm advice from medical specialists that supported the need for [the elder child] in particular to be immunized:
Contacted by Nurse Practitioner from … Immunisation Service due to ongoing conflict between parents regarding immunisation of [the elder child].
NP advised there were Family Law Court orders in place that allowed both parents to provide consent for medical procedures and on two occasions, mother had attended Immunisation Clinic appointments and obstructed [the elder child] from receiving his vaccinations. NP advised [the elder child] had a medical history which left him at risk of rapid deterioration if he becomes unwell placing him at an increased risk of harm compared to peers without co-morbidities.
NP also advised mother is aware of risk to [the elder child] following multiple discussions.
Lengthy discussion with the [child protection] team and advice was as follows:
•Father should be encouraged to pursue court orders allowing him to vaccinate [the elder child], despite mother’s objections.
•In the event that father is unwilling to do this, or the risk [to the elder child] is deemed too imminent to await court proceedings, a report to Child Safety may be warranted due to his increased risk compared to peers.
•… should discuss this matter with the [Hospital V] Legal team to determine if the Health Service is able to vaccinate with paternal consent, despite mother’s objections.
NP advised she would discuss the level of risk [the elder child] would experience if he was to await his father to proceed matters through the Family Law Court and father would be encouraged to pursue legal documentation from the Court, authorising vaccination.
(Footnote omitted)
Her Honour then sets out at [55] the text of a letter written by Nurse EE which expressed her concern:
55 Nurse EE wrote to [the elder child’s] treating doctors:
I write today as I have concerns that [the] mother is obstructing our service delivering care to [the elder child]. There have been two occasions within the last week that [the] father has brought [the elder child] to the Immunisation Centre (2g) requesting vaccination for [the elder child]. [the] father was assessed as having the legal capacity to provide the consent and was assessed as acting in [the elder child’s] best interests. There were no identified legal orders that prevented [the] father providing this consent. On both occasions [the] mother arrived and prevented vaccination from occurring.
I have discussed with [child protection] my concerns that [the] mother is obstructing care. They have suggested that the father pursue court orders to support compliance with vaccinations. However, a child safety report could be warranted if it was demonstrated that [the elder child] was at increased risk of harm (compared to his peers) as a result of his mother obstructing care.
As his primary treating Physicians what are your thoughts around his health risk due to his underlying medical conditions if he were to remain unvaccinated and contract a vaccine preventable disease? Do you feel these health risk warrant a child safety report?
(As per the original) (Footnote omitted)
The primary judge concluded:
56I consider this failure by the mother to promptly vaccinate [the elder child] posed a risk to the child. I note however by the time it came to court in October 2019 the mother had consented to the vaccination.
And at [78] the primary judge concluded:
78I accept the mother was hesitant to immunize the children and this posed a risk to [the elder child] in particular. However the Court order was a consent order by the parents to immunize the children.
Before us counsel for the father submitted that there was a lot more to it than what arises from the reasons and that the issue was disposed of rather quickly without considering what that risk was. Counsel for the father further submitted that the primary judge should have found that the mother continued to be tardy in relation to implementing the orders made on 4 September 2019 (amended 10 September 2019) and that the father unilaterally had the children vaccinated at the hospital on 18 October 2019. The father does not give evidence about how Dr S and Dr J were involved in the implementation of the orders, as was required, nor does he give any evidence about the mother’s reluctance after the orders were made on 4 September 2019 (amended 10 September 2019).
We do not accept that her Honour did not consider the risk, and ultimately this complaint is one of weight. In the first sentences of [53]–[54], [56] and [78] the primary judge has made adverse findings against the mother in relation to her historical reluctance to immunise the children and in particular about the risk to the elder child. It was open to the primary judge to conclude that the September 2019 orders had resolved the issue. The father’s submission is that the mother’s attitude before September 2019 to immunisation should have weighed more heavily against her. In Gronow v Gronow (1979) 144 CLR 513, Stephen J emphasised at 520:
…an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight.
Administering anti-seizure medication? (Grounds 2(c)–(e))
The father first complains that the primary judge did not properly explain why her Honour had not accepted the father’s submission that the mother had not given the elder child Tegretol until after the child was returned to her in August 2018.
Between [30]–[45] the primary judge comprehensively discussed the available evidence relating to the history of the mother’s administration of Tegretol to the elder child. Her Honour sets out extracts from doctor’s documents, the Department records and refers to pharmacy notes. That discussion easily enabled an understanding of the primary judge’s reasons for the ultimate conclusion at [46]:
The evidence supports a finding that:
(1)The parents stopped the Tegretol shortly after starting it because of concerns about the child’s reaction to the drug.
(2)The medicine was recommenced shortly after stopping it but the mother was still supplementing the Tegretol with cannabis oil. This conclusion is supported by the evidence of the prescriptions that were filled for the child on 8 Aril 2018 and 27 June 2018.
(As per the original)
The father though refers to the cross-examination of Dr H:
[COUNSEL FOR THE MOTHER]: And in respect to the application of the medication that you prescribe for [the elder child] it’s the case that you are comfortable that [the elder child] is being administered the medication that you have prescribed for him?
[DR H]: I won’t be able to answer that question.
(Transcript 3 December 2020, p.136 lines 45–47)
The father submits in his Summary of Argument filed 7 June 2021:
38.… Despite this being a fundamental plank in the father’s case, this was not something the learned trial Judge seemed to have regard to in her Reasons for Judgment.
39.Indeed the learned trial Judge stated at paragraph 50 of the Reasons for Judgment that Dr H did not raise any concerns about the mother’s failure to give the child the medication for epilepsy. That is at odds, it is submitted, with Dr H not being able to say whether he was comfortable that [the elder child] was being administered the medication.
(As per the original)
The father says he has “mistrust” for the mother’s ability to administer the medication required by the doctors (Transcript 1 December 2020, p.15 line 21), and counsel for the father before us mused that the primary judge should have found that the mother would cease medication once given sole parental responsibility. Clearly the primary judge rejected the assertion that the mother was not administering, and would not administer, prescribed medication, and the reasons for rejecting that assertion is more than adequately explained.
First, the primary judge found at [47] that from 28 July 2018 the mother videoed herself administering the dose of Tegretol (or the alternate medication subsequently prescribed by Dr H) to the elder child morning and night and at [44] that the mother had provided that video footage to the father every day for a period of about two and a half years up until the date of the trial. There is no challenge to these findings and in fact the father conceded “[t]here’s a video record of the mother administering something which looks like the medication. Yes” (Transcript 1 December 2020, p.15 lines 27–28) and “I would accept that from the video diary, it very much looks like the mother has been administering the medication…” (Transcript 1 December 2020, p.15 lines 32–34).
Secondly, the father complains about the primary judge’s reasoning process in relation to the evidence concerning a notification to the Department on 1 March 2019 where a notifier complained that the mother was refusing to provide the elder child with his medication and not adhering to his medication schedule. At [52] the primary judge concluded:
This investigation, which was some months after the first investigation by the Department does not lend any support to the father’s allegation the mother is not providing the child with the appropriate doses of the anti-epilepsy medication.
The father asserts that it is not possible to follow how the learned trial judge found as she did at [52].
However, at [51] the primary judge sets out in some detail part of the Departmental record which includes the following:
…it appears that the child’s basic care and medical needs are being met, acknowledging that both parents have a responsibility to care for [the elder child] and seek medical treatment should they feel it necessary…
…there is nil independent medical confirmation of the mother failing to administer the child’s medication AND there have been no increase in seizures noted…
Given the primary judge’s recording of that evidence and bearing in mind the earlier uncontested finding that the mother was videoing herself doing twice daily what the father alleged she was not, we are easily able to ascertain the reasoning upon which her Honour reached the conclusion in [52].
Seizure Activity
The father complains that the primary judge did not adequately deal in the reasons with the father’s argument that the mother was unable to recognise seizure activity. Specifically in that regard, the father challenges the primary judge’s treatment of Dr H’s evidence, namely:
75.The doctor conceded he has no reason to doubt what the mother and father were telling him about the child’s seizure activity.
The father refers to the following oral evidence of Dr H:
[COUNSEL FOR THE FATHER]:…Sticking to what you do know, you do know the results of the EEG; what you don’t know is which of the parents’ report is more accurate. So sticking to what you do know, I will ask this simple question: is it likely that the child is exhibiting seizure activity in both parents’ household?
[DR H]: It would be – it would be quite uncommon to someone having seizures for three days and then all of a sudden not having seizures for next three days. It is possible either way that one parent is under-reporting and/or other parent is
over-reporting. I won’t be able to differentiate between what is – what is true.(Transcript 3 December 2020, p.139 lines 22–29)
The father submits in his Summary of Argument:
40.Further, Dr H said he had no cause to doubt the veracity of the father’s reports about seizures that he had observed. Whilst the learned trial judge elicited a similar response as to the veracity of the mother’s version of the seizures, the learned trial judge was still left with the father’s version that seizures were occurring. This was not engaged with by the learned trial judge. Rather the learned trial judge made it an issue as to whether each party was being truthful in their observations rather than dealing with the fact that seizures might still well be occurring if the father’s evidence was accepted.
It is important to set out what it was the primary judge did say about the elder child’s recent seizure activity, namely:
50.Dr H was a witness in the trial. He was cross-examined by the father’s counsel. The doctor did not raise any concerns about the mother’s failure to give the child the medication for epilepsy…
…
68.The father’s evidence is that the child is continuing to have seizures and that the mother does not notice these. The evidence the mother gave under
cross-examination seems to support the father’s position in that when the nature of the seizure was described to her the mother conceded this activity had occurred in her home.
69.The father’s evidence is:
On 18 September 2020, we received the results of [the elder child’s] sleep study. I attended on Dr H in person and [the mother] by phone. The results showed constant seizure related activity than the study [the elder child] had in 2019. Prior to revealing these results to [the mother] and I, Dr H asked [the mother] if she had noticed any seizure related activity to which she emphatically responded “no”. Once [the mother] terminated the phone call, Dr H questioned me again regarding [the mother’s] compliance with medication administration. He asked me to procure a blood test because it was his view that it was unusual for a child to return an EEG test result like [the elder child’s] if he was receiving the medication. Dr H said if the blood test returned a sub-therapeutic result, he would immediately make a child safety notification against [the mother]. Dr H also stated that I was the only parent observing seizure related activity, which meant [the mother] was either not able to recognise them or had chosen not to report them.
70.Dr H was available to give evidence. He was cross-examined by the father’s counsel but these points the father makes were not put to Dr H.
71.Dr H’s evidence did not raise concerns about either parent.
72.He conceded he cannot assess the doses of medicine being given to the child by the parents. The doctor conceded the seizure activity is relevant to the dosage of medication.
73.Dr H’s evidence with respect to an EEG was:
If it is absolutely clear that a patient is having seizures, then we may not do – do an EEG to confirm the same, but if it is not clear whether someone is having seizures, then we may perform an EEG with the aim to capture the events.
And to be clear, it wasn’t clear because of the conflicting reports of the parents; is that correct? That’s correct.
Right. The father says that the results of the EEG and the sleep test showed constant seizure activity; is that right? There is difference between seizure activity and epileptic activity. So children with epilepsy can have a normal EEG in between seizures. That means it is a reflection of how active the epilepsy is. That doesn’t necessarily mean they are having seizures, so [the elder child’s] EEG done in September showed increased frequency of activity especially during sleep, but we did not capture any seizures as such during ... almost 12-hour recording.
74.Dr H’s evidence about the seizure activity was:
… Sticking to what you do know, Dr H – I mean that with no disrespect, so I should clarify. Sticking to what you do know, you do know the results of the EEG; what you don’t know is which of the parents’ report is more accurate. So sticking to what you do know, I will ask this simple question: is it likely that the child is exhibiting seizure activity in both parents’ household? It would be – it would be quite uncommon to someone having seizures for three days and then all of a sudden not having seizures for next three days. It is possible either way that one parent is under-reporting and/or other parent is over-reporting. I won’t be able to differentiate between what is – what is true.
75.The doctor conceded he has no reason to doubt what the mother and father were telling him about the child’s seizure activity.
76.I am not able to make a finding of risk to the child in the mother’s care on the basis of her failure to note seizure activity in circumstances where the medical evidence does not support such a finding.
…
79.The child’s seizure activity is not noticed by the mother according to the father. The evidence is not conclusive on this issue when Dr H’s evidence is considered.
(Footnote omitted)
It was open to the primary judge to find at [76] that the medical evidence did not support a finding that the child was at a risk of seizures in the mother’s care because of her failure to note seizure activity.
There is no inadequacy in the reasons given by the primary judge in relation to the child’s recent seizure activity. There is evidence to support the conclusions that her Honour reaches and accordingly these grounds fail.
Did the primary judge err in making a finding of fact that there is no evidence the elder child had suffered any serious seizures after 12 April 2018 (Ground 3(b)) and by failing to find that the elder child had seizures after 12 April 2018? (Ground 3(a))
The errors of fact which are asserted by the father in these grounds are said to be contained in [48] of the primary judges reasons:
I am fortified in coming to this conclusion [that the mother was administering medication prescribed by Dr H] because there is no evidence of the child having any serious seizures after Dr H informed the parents of the importance of administering the drug on 12 April 2018.
In the Notice of Appeal, Ground 3 had originally asserted that the primary judge erred in finding that there were no seizures after 12 April 2018. That was not the finding made by the primary judge. During the appeal, counsel for the father sought and was granted leave to amend this ground to assert that the error of fact was a finding that there was no evidence that the child had any serious seizures after 12 April 2018.
It seemed uncontroversial that the elder child presented to the Hospital V Emergency Department on 8 April 2018 with three seizures that day described as “lasting for 1–2 minutes… arm clenching and arm shakes, head tilted and held to one side, crying and screaming” (Exhibit bundle 4, page 99, the document is contained in item 4 of the list of exhibits). Clearly they could be classified as “serious seizures”.
Counsel for the father conceded to the primary judge that the oral evidence of Dr H, subsequently quoted by the primary judge at [73], did not support the father’s case (Transcript 4 February 2021, p.51 lines 26–27).
Before us, counsel for the father was invited to identify the evidence of serious seizures after 12 April 2018. Counsel for the father was unable to identify any evidence that would establish that a serious seizure had occurred after the mother had recommenced giving the elder child medication twice daily in July 2018.
Counsel for the father argued that the finding of no evidence of “serious seizures” was not open because there was no medical evidence that differentiated serious seizures and ones which were not.
That submission is not accurate. It seems uncontroversial that the event that led to the elder child’s hospitalisation in April 2018 and to Dr H prescribing anti-seizure medication involved the elder child experiencing three significant seizures in the one day.
During his oral evidence, Dr H said that in the type of epilepsy that the elder child has:
…his seizures would manifest as behavioural arrest, meaning that if he is doing an activity he would all of a sudden stop that activity, and it will appear as if, you know, the – there’s a pause – pause button. So he would stop the activity, appear unresponsive, maybe they have a vacant stare and then -then come back to normal without any motor manifestation – without any conventional description of procedure that one expects wherein there will be jerky movements of arms and legs. It is sometimes very difficult to be certain whether these episodes of seizures or not because, you know, children can daydream, and they may appear to be unresponsive…
(Transcript 3 December 2020, p.137 line 47 to p.138 line 8)
In fact, in final submissions, counsel for the father submitted that what the mother was failing to properly observe and report to Dr H were “moments of absence, they’re not significant, they’re not where he rolls around the floor as a grand mal … they are less significant, but they occur” (Transcript 4 February 2021, p.50 lines 25–28).
It was open to the primary judge to find that there was no evidence of the child having any serious seizures after 12 April 2018 and that that finding was not inconsistent with either:
·the father’s evidence and that of his witnesses that seizures were still occurring having regard to Dr H’s evidence at trial referred to above;
·the reference in Dr H’s notes as at 31 July 2019 to “nocturnal seizures” (Exhibit 2, p. 27). No suggestion was put to Dr H in cross examination that “nocturnal seizures” were serious. There is no suggestion in those notes that such seizures were as serious as those described in 2018; and
·the elder child’s admission to hospital on 18 October 2018, whilst for a serious condition, was because of a “state of acidosis”. There does not appear to be any medical support for a view that it related to a seizure.
An appeal court should not interfere with a judge’s finding of fact unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony” (Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 at [43] citing Fox v Percy (2003) 214 CLR 118 at [28]). That is not the case here.
Did her Honour err in failing to make other findings? (Grounds 3(c)–(h))
These grounds of appeal assert the primary judge failed to find:
·the mother had an inability to recognise and/or report seizures;
·this failure compromised and significantly adversely affected Dr H’s ability to properly assess and prescribed anti-seizure medication;
·the mother had failed to present the child for necessary medical treatment; and
·the elder child’s future and medical care would likely be compromised and significantly adversely affected if the father‘s ability to engage with the older child was reduced.
The findings referred to are some of those that the father invited the primary judge to make but which she did not. Again, the question is whether the proposed findings arise from “incontrovertible facts or uncontested testimony”.
During cross-examination, Dr H said that “[i]t’s not uncommon to see the difference of opinions in parents. I see lot (sic) of children with complex epilepsy. It is expected that there may be different perceptions, but at times I did feel that – both parents are not on the same page.” (Transcript 3 December 2020, p.138 lines 30–33). Dr H rejected the suggestion that the mother was not on the same page as him (Transcript 3 December 2020, p.138 line 38). He said that it was not that the mother was reporting no seizures but rather less seizure activity than the father was reporting. (Transcript 3 December 2020, p.137 line 35).
Again, as noted by the primary judge at [74] Dr H said, “it is possible either way that one parent is under-reporting and/or the other parent is over-reporting”. Dr H agreed that it became difficult to increase or change medications when being given different histories. (Transcript 3 December 2020, p.138 lines 42–44).
As developed in oral argument before us, it is asserted that the primary judge failed to have regard to evidence demonstrating that in October 2020 the father videoed the elder child having seizure activity, and as a result Dr H changed his medication. Dr H was not cross-examined about the consultation on 28 October 2020 which resulted in a change in medication, and nor did counsel for the father refer to this consultation in final submissions, apart from an oblique reference to “reports” to Dr H by the father including “video reports”.
On the basis of the evidence given by Dr H it was open to the primary judge to find that she was unable to conclude whether there was a failure by the mother to note seizure activity (at [76]). It was otherwise open to the primary judge not to make the findings sought by the father.
There is no merit in these grounds.
Did her Honour’s reasons generally fail, or fail to reveal sufficiently, why her Honour concluded the mother’s proposed orders would meet the children’s best interests? (Ground 4)
The father asserts there is no analysis of the competing proposals and why the father’s proposal does not represent the better proposal to meet the children’s best interests.
The primary judge, having set out the competing proposals of each of the parents and the ICL (although not explicitly the ICL’s final position in oral argument), comprehensively deals with the issues arising from the elder child’s complex medical condition and the behavioural problems of the younger child; the mother’s assertions as to the coercive and controlling behaviour of the father; and comprehensively with relevant mandatory statutory considerations.
There is no substance in the assertion that her Honour’s reasons generally fail to sufficiently expose why the mother’s proposal was preferred.
There is no merit in this Ground.
CONCLUSION
Given that there is no merit in any ground, the appeal will be dismissed.
COSTS
Neither the mother nor the ICL sought an order for costs in the event the appeal was dismissed and no order shall be made.
I certify that the preceding one hundred and thirty-four (134) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Strickland, Watts & Hogan. Associate:
Dated: 12 November 2021
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