Genna and Dennis

[2010] FamCA 1161

FAMILY COURT OF AUSTRALIA

GENNA & DENNIS [2010] FamCA 1161

FAMILY LAW – CHILDREN – Interim

APPLICANT: Ms Genna

RESPONDENT: Mr Dennis

FILE NUMBER: SYC 4023 of 2010

DATE DELIVERED: 30 November 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 30 November 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Karras

COUNSEL FOR THE RESPONDENT: Mr O’Brien

SOLICITOR FOR THE RESPONDENT: Delaney Lawyers

Orders

1. The document signed by the parties and entitled “Short Minutes of Order” be marked Exhibit A and orders be made in accordance with paragraphs 1, 2, 4 and 5 of Exhibit A.  I note the matters contained in paragraphs A and B.  I also accept the undertaking each party gives to the court as set out in paragraph 4 of Exhibit A.

2. By consent, on 17 December 2010 the father shall attend an appointment for the purposes of having a consultation with Ms K and he will in good faith discuss with her, her recommendations in relation to E’s diet whilst he is in the father’s household. 

3. As soon as is practicable after the meeting with the father, Ms K is requested to reduce her recommendations to writing and provide a copy of those recommendations to each of the lawyers acting for each of the parents.

4. As soon as is practicable after Ms K’s written recommendations become available, the parties are to have a discussion in an attempt to reach an agreement in relation to the diet that E will have in his father’s household.  If, as a result of that discussion, they are unable to reach an agreement, then the father will provide E with a diet in his father’s household in accordance with the recommendations of Ms K in the written document she has provided. 

5. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

Exhibit A

BY CONSENT Orders as follows:-

1. That by way of implementation of the Parenting Orders made by this Court on the 30^th September, 2004 (“the Orders”):-

   1.1 The mother is permitted to remove the child of the marriage, [E] born […] August, 1999 (“the child”) from the Commonwealth of Australia for the purposes of a holiday in Europe between 25 December, 2010 until 22 January, 2011.

   1.2 The father shall collect the child from the mother’s parents on 22 January, 2011 at 10:00am and the father shall return with the child to Australia by no later than 30 January, 2011.

2. The father shall facilitate the travel arrangements referred to in Order 1 hereof by:-

   2.1 Paying to the mother the sum of $1,038.50 being his contribution to the child’s airfare paid by the mother, within 14 days.

   2.2 Booking the airline ticket for the child’s return to Australia (Paris-Sydney) and paying all costs associated with such ticket within 14 days.

   2.3 Providing to the mother a copy of the child’s airline ticket as referred to in Order 2.2, within 16 days.

3. (Deleted).

4. Without admissions, each party undertakes to the Court that the child will not be required to observe a vegan diet while in their respective care, such undertakings to continue until discharged.

5. No Order as to Costs.

AND IT IS HEREBY NOTED AS FOLLOWS:-

A.The mother’s parent’s home is located at [Paris].

B.The payments made by the father pursuant to these Orders are not be considered for Child Support purposes.

C.The parties intend to ask [Ms K] to provide them or each of them with a written report as to the child’s nutritional requirements and the adequacy of the child’s dietary intake. 

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4023 of 2010

MS GENNA

Applicant

And

MR DENNIS

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter, I have been asked to resolve a dispute that the parents are unable to resolve between themselves.  It relates to a dispute in relation to what the parties’ child was eating when he was in the father’s home.

2. The mother in her affidavit refers to an email received from the father on 28 April 2010 which indicated that the child was on a vegan diet at his home.  That was confirmed in a further email by the father’s partner on 28 May 2010.

3. I have in evidence before me documents from two professionals.  The first is Dr N, a paediatrician whose qualifications are in evidence before me.  The second is a report from a dietician, Ms K dated 21 May 2010.  The father seeks to bring into question Ms K’s qualifications to give opinion about the chlid’s dietary requirements.  In the context of this interim hearing, there’s no cross-examination of witnesses and I have to make some assessment on the basis of the material as to whether or not Ms K is qualified to give expert opinion about the matters that she sets out in her report of 21 May 2010.  In that regard, I note that that particular report is addressed to Dr N; that is, addressed to the child’s paediatrician.  And it starts with the words:

   “Thank you for referring this 10-year-old boy for assessment of nutritional adequacy.”

4. It is quite clear from the first sentence of the report of Ms K of 21 May 2010 that Dr N referred the child to her for assessment.  I conclude from that that Dr N had confidence in the qualifications of Ms K to be able to carry out the task that he had wanted her to do by way of that referral, and accordingly, in the context of this interim hearing, I also have confidence in her ability to express the opinions that she has expressed in that document. 

5. In the first paragraph of Mrs K’s report to Dr N, it is clear that she had made some assessment of the child’s height and weight and concluded that there had been some concerns over his weight gain.  She then describes the history that she had been given about the child’s diet in his mother’s household.  She had some information about the child’s diet in the father’s household although that came from the child and she concedes in her document that it was not totally clear.  I accept the father at that time did not see any need to engage with Ms K, and given that he chose not to do so, Ms K took the precautious option of setting out what she thought were the possible deficiencies in the child’s diet.

6. The parties from that point on have not been able to resolve concerns arising over the history that I have just outlined and I am being asked to do so.  I have accepted, without admissions, undertaking by both parties today that the child will not be required to observe a vegan diet.  That, however, is not sufficient for the mother’s purposes.  Although I have not made an order yet, I understand I am being invited to make an order that the father will attend Ms K and have a consultation with her about the child’s diet, and I will be making an order by consent to that effect.  The sticking point is whether or not what Ms K advises will then be adopted by the father as a basis for determining what the child will eat in the father’s household.  The father wants the option of accepting or rejecting Ms K’s recommendations.

7. It seemed to me that this controversy has developed a life of its own; it has gone on too long and it really needs to be terminated, and I am being invited to do so today, and I will do it by making Ms K the final arbiter as to what the child’s diet should be in the father’s household if the parties themselves after the father has seen Ms K, are unable to reach agreement between themselves as to what is to happen.

I certify that the preceding seven (7) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on Tuesday, 30 November 2010.

Associate: 

Date:  15.12.10