GENTRY & GENTRY

[2019] FCCA 765

FEDERAL CIRCUIT COURT OF AUSTRALIA

GENTRY & GENTRY [2019] FCCA 765

Catchwords:
FAMILY LAW – Parenting –child with significant high needs requiring consistent and constant care – contention between the parties as to the time the father is to spend with child.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Cases cited:

Rice & Asplund (1979) FLC 90-725

Applicant: MR GENTRY

Respondent: MS GENTRY

File Number: PAC 5323 of 2016

Judgment of: Judge Obradovic

Hearing dates: 11 – 12 February 2019

Date of Last Submission: 12 February 2019

Delivered at: Parramatta

Delivered on: 1 March 2019

REPRESENTATION

Counsel for the Applicant: Mr Coleman SC

Solicitors for the Applicant: Coleman Greig Lawyers

Counsel for the Respondent: Mr Morley

Solicitors for the Respondent: Claremont Legal

ORDERS

1. All previous parenting orders are discharged.

2. The Applicant and the Respondent shall have equal shared parental responsibility for the children [X] born … 2004, [Y] born … 2008 and [Z] born … 2011.

3. The children shall live with the Respondent.

4. [X] shall spend time with the Applicant as and when she chooses.

5. [Y] shall spend time with the Applicant:

   (a)From 9:00am to 3.30pm on the first three Sundays of each month;

   (b)During school holidays as follows:

   (i)In the first week of each short school holiday period from 9am to 3.30pm each Wednesday;

   (ii)During the December/January school holiday period each alternate Wednesday from 9am to 3.30pm; and

   (iii)During the Father’s Day long weekend as agreed to between the parties.

   (c)At all other times as agreed between the parties in writing.

6. [Z] shall spend time with the applicant during each school term:

   (a)From 6:00pm Friday to 5:00pm Sunday commencing the second week upon the making of these Orders and continuing each alternate week thereafter; and

   (b)For one evening on a fortnightly basis as agreed but failing agreement from 5:00pm to 8:00pm Wednesday during the week following the time occurring in (a) above and provided always that the Applicant shall give the Respondent reasonable notice in the event that he is unable to spend such time with [Z].

7. [Z] shall spend additional time with the Applicant as follows:

   (a)For block periods comprising of seven (7) consecutive nights on up to four (4) separate occasions in each year, commencing at 9:00am on the first day and concluding at 5:00pm on the eighth day, with such time to be taken during school holiday periods and upon the Applicant giving the Respondent not less than 28 days prior notice;

   (b)From 5:00pm Christmas Eve to 2.00pm Christmas Day in each even numbered year and from 2.00pm Christmas Day to 5:00pm Boxing Day in each odd numbered year;

   (c)From 5:00pm on the Saturday prior to Father’s Day until 5:00pm on Father’s Day, should either of the children not already be in the Applicant’s care; 

   (d)On each child’s birthday from 5.00pm until 7.00pm if that day falls on a school day and from 9:00am to 1:00pm if that day falls on a non-school day, should either of the children not already be in the Applicant’s care; and

   (e)At all other times as agreed between the parties in writing.

8. The time which the children are to spend in the Applicant’s care pursuant to Orders for time with the children in accordance with Order 3, 4 and 5 above is suspended on the following occasions:

   (a)From 5:00pm on the Saturday prior to Mother’s Day until 5.00pm on Mother’s Day;

   (b)From 2:00pm Christmas Day to 5:00pm Boxing Day in each even numbered year and from 5:00pm Christmas Eve to 2:00pm Christmas Day in each odd numbered year; and

   (c)On each child’s birthday from 5.00pm until 7.00pm if that day falls on a school day and from 9:00am to 1:00pm if that day falls on a non-school day, should either of the children not already be in the Respondent’s care.

BY CONSENT THE COURT ORDERS THAT:

1. Each party shall notify the other parent as soon as is practicable in relation to any medical emergency involving any of the children.

2. In the event of a party making an appointment for any child with a specialist or allied health professional other than for a routine check-up, that parent shall ensure the other parent is promptly notified of the appointment so as to enable the other parent’s attendance at such appointment. 

3. Each party is hereby authorised by the making of this Order to obtain copies all notices, newsletters, letters, school reports and communications from any school which the children are enrolled at and both parents shall be permitted to attend parent/teacher interviews and other events at the children’s schools which allow attendance from parents. 

4. The parties are to advise the other of any change of mobile number, home telephone number, his/her residential address and his/her email address within 24 hours of such change occurring.

5. Each party is restrained from criticising or denigrating the other party, or their family members, in the presence of, or within hearing of the children, and nor shall they allow any third party to denigrate or criticise the other party, or their family members, in the presence of, or within hearing of, the children.

6. Each parent is permitted to travel outside of the Commonwealth of Australia with the children provided always:

   (a)No less than 60 days prior to the intended date of departure the travelling parent must provide the other parent with written details of the proposed travel including:

   (i)Dates and methods of travel (including flight and ship number, departure and arrival times);

   (ii)A detailed and complete itinerary showing all destinations of travel; and

   (iii)Addresses and telephone details (land line) of all accommodation where the children will be residing; and

   (iv)Such travel occurs within a country that is a signatory to the Convention of the Civil Aspects of the International Child Abduction signed in The Hague on 25 October 1980, unless otherwise agreed in writing with the exclusion of the Country A.

7. Provided the parent who is seeking travel with the children has complied with the requirements outlined in Order 15 above, the other parent will not unreasonably withhold consent to any proposed travel and if that parent is the holder of the children’s passports at that point in time then he/she shall forward the passports to the other parent at least 21 days prior to the date of departure.

8. Both parties will ensure that the children have a valid passport, and to facilitate this Order, both parties sign any documents necessary to obtain an Australian Passport or a renewal thereof for the child and the cost of the passport application or renewal be borne by the requesting parent.

9. Remove all outstanding issues from the list of cases awaiting finalisation.  

THE COURT NOTES:

A.The agreement between the parties that the Applicant shall be entitled to exclusive use of the motor vehicle or such other vehicle used to transport [Y] from time to time, during all periods when [Y] is spending time with the Applicant in accordance with these Orders and the Respondent shall do all things to facilitate the Applicant’s collection of the vehicle at the commencement of his time with [Y].

B.The undertaking provided by the Applicant that he be restrained from allowing the children to be left unsupervised in the care of Mr B whilst the children are in the Applicant’s care.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5323 of 2016

MR GENTRY

Applicant

And

MS GENTRY

Respondent

REASONS FOR JUDGMENT

1. These are parenting proceedings concerning the parties three children, [X] born on … 2004, [Y] born … 2008, and [Z] born … 2011. 

2. The proceedings were heard during what turned out to be a very busy running list that the Court had commencing on 11 February 2019.  The final submissions in this matter were made on 12 February 2019.  The Court indicated to the parties at the conclusion of submissions that it intended to deliver an oral judgment on the Friday of that week, but due to circumstances which have eventuated, that was not possible.  The Court is today delivering oral reasons for judgment which by their very nature are relatively short.  This is being done for a number of reasons. 

3. Firstly, the parties are by and large in agreement as to the vast majority of the matters that were in initial dispute between them in respect of the parenting orders they each sought, but also because in the Court’s mind it is better to deliver short form reasons quickly than detailed written reasons after many months.  As I have already indicated, the parents have by and large agreed as to the majority of the issues between them in regards to their respective parenting applications. 

4. The final parenting hearing proceeded on the papers with oral submissions being made.  There was no cross-examination of any witness. Both parties were represented by very experienced Counsel.  At the start of closing submissions, learned Senior Counsel for the father handed up a proposed minute of order which the applicant sought. 

5. The majority of the orders sought in that minute are either not opposed by the mother or are consented to by the mother who is the respondent in the proceedings.  The main issue of contention between the parties is in fact how much time the child [Y] is to spend with the father.  [Y] is a child with very high needs who needs consistent and constant care.  In the family report [Y] is described at paragraph 69 as follows:

   [Y] is non-verbal.  He is blind and paraplegic and confined to a wheelchair. 

6. The mother’s affidavit filed on 4 June 2018 contains evidence as to the precise needs of the child on a daily basis while the child is at home, with Annexure ‘F’ being the daily schedule for the care that [Y] has to be provided each and every day that he spends at home. 

7. Annexure ‘G’ to the mother’s affidavit is a letter from the children’s hospital at Westmead from the Department of Palliative Care and Pain Medicine dated 4 July 2016.  It is a letter in support of the fact that the mother is providing care for [Y] and outlines the significant high needs which [Y] has.  It notes that he has a rare and life limiting illness which has resulted in multiple issues, including severe cerebral palsy, spastic quadriplegia, which results in an inability to feed, requiring nutrition via a tube;  inability to breathe independently, especially at night, requiring supported breathing via a continuous positive airway pressure;  multiple medications including injections to reduce pain and poor movement secondary to his worsening spasticity;  multiple allergies and frequent hospitalisations for respiratory infections and deteriorations.

8. It is said in that annexure that these things contribute to the unpredictable nature of the symptoms which the child exhibits and sudden episodes of deterioration which are life threatening and will eventually result in his demise.  [Y] has, certainly while these proceedings have been on foot, suffered a number of hospitalisations with his health and wellbeing being in grave danger.  Despite these high needs, [Y] does attend a special school. 

9. He is able to be transported via a special vehicle, that is, a vehicle which is equipped to assist with his special needs and is able to transport his wheelchair, and he has been looked after by a number of people throughout his lifetime.  What does flow from the evidence is that if mistakes are made by those caring for [Y] in respect to his care, such mistakes could be fatal to him; therefore, it is imperative that those who care for [Y] have a full understanding of the care which he requires. 

10. The recommendations made by the Family Consultant who prepared the Family Report in this matter are for [Y] to spend time with the father each alternate weekend from Thursday after school to 5pm on Sunday.  At present, [Y] spends very limited time with the father.  The father recognises through the orders which he seeks that he has some work to do before he is able to provide [Y] with the care he requires overnight and over the period of some days, and that the father’s accommodation is not at present suitable for that purpose. 

11. The father proposes a period of time during which [Y] will spend limited time with him and then upon the father meeting certain conditions precedent for that time to be significantly increased, including to overnight time and half the school holidays. 

12. The recommendations in the family report are made by an experienced family consultant who holds relevant qualifications in social science and social work.  However, the Family Consultant does not have any medical qualifications and her opinions are only relevant insofar as the facts upon which those opinions are based have been established.  The Family Report notes as follows at paragraph 77:

    It is impossible for the family consultant to determine how much awareness [Y] has of his surroundings.  Both Mr Gentry and Ms Gentry describe him as responsive and appear to have developed an understanding of his interaction over time, but on the day of interviews the family consultant did not observe any movement or responses from [Y].  [Y] attends a school for children with disabilities.  He is picked up and dropped back home by disability transport from Monday to Friday. 

    He also attends a respite care for one weekend per month.  The descriptions provided regarding [Y]’s responses would indicate that he is aware of an responds to his carers.  If this is the case, he will benefit from ongoing contact with the people who long him and provide good care for him.  This would include his parents, siblings and extended family. 

13. The Family Consultant then goes on to opine as follows, at paragraph 108:

    The effect on [Y] to any changes in his current routine will depend on the level of care he receives.  It is noted that [Y] copes with direct care from a range of people.  He is cared for by his mother, maternal grandmother, school staff and respite care staff.  These people will have been trained in his personal care and there is no obvious reason to suggest that Mr Gentry could not learn to care for him.  Ms Gentry is concerned that Mr Gentry did not follow [Y]’s routine in the past and that he may disregard his routine again and that this is likely to put [Y]’s health at risk.  This is an issue that the court will need to consider should the matter go to final hearing. 

14. The Court notes, as does the Family Consultant in the matters which have been referred to, particularly paragraph 108, that while there is no obvious reason to suggest that the father could not learn to care for [Y] for prolonged periods of time, including overnight, the fact is that, on his own admission, he has not yet done so.  At paragraph 50 of the Family Report the father is reported to be unable to articulate how his proposal will meet the children’s future individual needs other than that they will be able to spend time with him.

15. The report then goes on to say that the father said that he was advised to seek more time than he initially sought, but that this is what he wants. The report states that Mr Gentry said he would need a home that would accommodate [Y] and would move to live closer to the children if his proposal is supported by the court.  He said that he would need the support of a nurse if he was to have all three children together. 

16. The Court notes that in the minute of order which the father proposes, there is no proposal for a nurse to be available to assist the father during the times that he cares for all of the children together, despite this being what he indicated to the Family Consultant during the interviews conducted for the purposes of these proceedings.  The making of the orders the father seeks would see at least two if not all three of the children spending time with the father together.  It would certainly see the two children with the high needs spending time together with the father. 

17. The father in the Family Report, his affidavit filed in mid-2018 and his affidavit filed in February 2019, recognises that he presently does not have the capacity to look after [Y].  This is also recognised in the submissions made by learned Senior Counsel for the father.  This is not only due to the father’s current living circumstances but also – and importantly from the court’s perspective – due to the father’s lack of specialised training and knowledge.  The father does say – in fairness to him – in his affidavit filed on 6 February 2019 as follows:

    I remain willing to undertake any further training that is considered necessary to manage [Y]’s health and general care.  I also intend to continue to consult with [Y]’s medical advisers and take their advice in relation to the various aspects of [Y]’s care.

18. At paragraph 36 of that affidavit – the father says that he has had regard to the daily schedule which the mother attaches to her trial affidavit at annexure F.  (That annexure already having been referred to by the Court in these Reasons).  He then says:

    I have already had experience in performing the majority of the tasks which are referred to and feel that I could confidently manage these tasks after having spoken with [Y]’s medical advisers in relation to specific matters such as the current treatment regime and in relation to the medication that [Y] is required to take.  Whilst I have experience in administering medication to [Y], which is done intravenously, through his feeding tube, I would need to consult with the medical advisers about the dosage and frequency of the medication. 

19. The father asks the Court to accept through his minute and through the submissions made on his behalf that he will by 1 July 2019, have implemented significant changes to his circumstances.  The difficulty for the Court is that, while the father talks about generalities and what it is that he intends to do, there is no firm plan in place except for what is proposed in the orders which are sought in his case.  That is, that he undertake and complete such courses with respect to the care of [Y] as Dr C or his nominee recommends. 

20. There is no evidence that the father has consulted to date with Dr C as to the availability of any such courses, what the good doctor might recommend or who the doctor’s nominee might be.  There is no evidence as to the availability and the cost of such courses, how long they might take and whether there is capacity by the father to complete such courses by 1 July 2019.  There is no evidence of a specific proposal or a plan that the father intends to follow to get his training and knowledge up to the level where [Y] would not be at risk in his care as currently identified by the evidence.  There is once again no specific evidence about the time-frame or how the father will obtain appropriate accommodation such that he is able to have [Y] stay with him overnight. 

21. What the father proposes is that by1 July 2019 he obtain accommodation suitable for housing [Y] as deemed appropriate by an occupational therapist referred by Dr C.  There is no evidence of any such referral being obtained by the father.  There is no evidence of the occupational therapist being identified by the father or by Dr C.  There is no evidence as to what the cost of such suitable accommodation might be or indeed the time-frame that might be required for the father to be able to obtain such suitable accommodation and indeed whether he would be able to afford it. 

22. What the father says in his affidavit filed in February 2019 where he talks about the cost of rent close to where the mother and the children live is, and his inability to currently house himself in that area is that the only way that he would be able to afford accommodation suitable to [Y] within these areas is to apply any moneys that he is likely to receive from the property settlement.  He also says that he expects that any accommodation that he is able to secure would need to be assessed by [Y]’s carers as to its suitability and will, possibly, require some modification so that it is suitable to accommodate [Y].  The father then goes on to say:

    I do not know at this stage what contribution, if any, [Y]’s financial managers are prepared to make towards the cost of any modifications or in relation to [Y]’s care and living cost generally during any periods that he will spend in my care following the making of final orders.

1. The Court understands from this that the father seems to be in a Catch-22 situation.  That is that he may not be in a position to tell the Court these matters but likewise without such matters being before the Court the father is not able to say with any certainty as to whether he can and how he will attend to these matters that he proposes. There is no evidence from the financial manager or any discussions that the Court has been taken to with the financial manager as to the financial manager’s willingness to contribute to any such costs as may be necessary for the father to obtain the accommodation required to be able to care for [Y] overnight and for the periods of time which he proposes.  The property-adjustment orders which have been made in these proceedings ultimately mean that the father will have access to some funds as a result of those orders. 

2. There is, as I have already indicated, insufficient evidence as to the modifications required, the availability of such modifications and the cost and indeed whether the father will be able to accommodate the child even with the money that he is ultimately receive once the property orders have been complied with.  The Court is therefore not satisfied that the father will be in a position to do what he says he wants to do and what he will be able to do by 1 July 2019.  Even if he was in that position, the evidence is that he has spent very limited time with [Y] to date and that there have been no overnights since separation at least. There are no proposals for increase in time to see how he and [Y] are coping.  Indeed, his proposal – in the Court’s mind – for half the school holidays as of 1 July 2019 shows a lack of insight and also a lack of planning and understanding of [Y]’s high needs.  The father has not satisfied the Court that it is in the child’s best interest, for orders to be made in accordance with paragraph 5 in its entirety.

3. The father, alternatively, seeks for the matter to be dealt with on an interim basis, an order which the mother opposes. These proceedings have been on foot for quite a while.  And in the Court’s view – given that they were listed for final hearing and that the father has had ample time to put in place the matters which he says he will attend to, if the Court makes the orders that he seeks. The Court is not minded to prolong the proceedings.  While significant agreement has been reached between the parties not only in respect of property but also in respect of most of the parenting dispute, the matters of concern in respect of the father’s capacity are still alive as at the date of final hearing.  As I have already said, the father has had ample time even from the date of the Family Report to the date of the final hearing to attend to these matters. He has not even started. 

4. The Court accepts the submission made on behalf of the mother, that there is nothing preventing the parents from further mediating upon the father attending to the things he says he wants to attend to.  That is obtaining suitable accommodation for [Y] and also completing any courses or any further training and learning that might be recommended.  There is no bar to further parenting proceedings being commenced.  Parenting proceedings are not impacted upon by the principles of res judicata.  While there may be an argument that further application ought to be dismissed on the basis of what is commonly referred to as the rule in Rice & Asplund[1], there is no statutory impediment to a new application being filed. This is not to suggest that the Court invites further proceedings. It is, simply, a relevant observation having regard to section 60CC(3)(l). In all of the circumstances the potential for further proceedings does not weigh heavily on the court’s consideration of these matters.

   [1] (1979) FLC 90-725

5. Going through the minute of order proposed by the applicant, the Court understands that the parties agree that all previous parenting orders are to be discharged.  The Court also understands that the parties consent to an order for the parents to have equal-shared parental responsibility for the children, that the children shall live with the respondent mother and that the oldest child, [X], shall spend time with the applicant as and when she chooses.  The Court also understands that orders sought in paragraph 7 A, B, C, D and E of that minute are not opposed except for subparagraph D, which, the parties agree, may be altered to be from 9 am to 1pm – likewise for paragraph 8C of the proposed minute of the applicant. 

6. The mother agrees to [Y] spending time with the applicant father from 9am to 3.30pm on the first three Sundays of each month but does not agree to the remainder of the proposed orders by the father.  The mother instead proposes a different order in respect of the time which [Y] is to spend with the father during school holidays, those being limited periods in accordance with paragraph 3B of her minute of order as contained in the case-outline document prepared in the mother’s case and filed on 7 February 2019. 

7. It is the Court’s view, that the orders which the mother proposes are in [Y]’s best interest – that is that [Y] is better off, spending limited time with the father, given the father’s current limited capacity to care for [Y] – rather than the orders which the father proposes, which, the Court has already indicated and has found the father has not established, are in the child’s best interest.  While there is some room and indeed plenty of room for the Court to make orders that the court considers appropriate with the Court not being bound by either of the parties’ proposal, the Court is not minded to deviate from the minute which the mother seeks in respect of [Y]’s time with the father. 

8. In respect of [Z]’s time with the father, it is clear that the orders sought by both of the parties indicate that there is, in substance, consent as to the time that [Z] should spend with the father.  Therefore, the Court will make orders in accordance with paragraphs 6 and 7 of the applicant’s proposed minute in respect of [Z] only with the amendments being from 10am to 2pm to 9am to 1pm. 

9. Paragraph 8 of the applicant’s minute is once again not opposed and in the Court’s view it is an order that is, in all of the circumstances, appropriate except for the amendment in 8(c), once again with the times being instead of from 10am to 2pm being from 9am to 1pm, something which was not opposed by the father.  Paragraph 9 of the minute is consented to by the mother.  Paragraph 10 is also consented to, although after some discussion with the bench, the Court will simply note the agreement contained in paragraph 10 of that minute.

10. Paragraph 11 is agreed.  Paragraph 12 is agreed with the mother indicating to the Court that she will advise the father of such appointments through an app that the parties have access to.  Paragraphs 13, 14, 15, 17 and 18 are likewise by consent.  Paragraph 16, the Court also understands, which provides for the children to be permitted to travel outside of the Commonwealth of Australia, is also consented to and agreed between the parties except that there should be an exclusion to 16(b) in respect of the Country A which is a country that is not a signatory to the Convention of the Civil Aspect of the International Child Abduction signed in the Hague on 25 October 1980 this permitting travel with the children to the Country A, being a country of the parents’ origin.  There is a restraint sought in the minute of order proposed by the mother in paragraph 10 and in respect of that restraint, there will be an undertaking provided by the father such that the restraint was no longer pressed at final hearing. 

11. For all of these reasons, orders are made as set out at the forefront of these Reasons.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date:     1 March 2019