Hales – Forbes and Firth

[2012] FamCA 556

FAMILY COURT OF AUSTRALIA

HALES – FORBES & FIRTH [2012] FamCA 556

FAMILY LAW - CHILDREN – With whom a child spends time – Orders for the child to live with the mother whilst the child recovers from a medical procedure

APPLICANT: Ms Hale-Forbes

RESPONDENT: Mr Firth

FILE NUMBER: SYC 3026 of 2011

DATE DELIVERED: 3 July 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 3 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Harper

SOLICITOR FOR THE APPLICANT: Barkus Doolan Kelly

COUNSEL FOR THE RESPONDENT: Mr Cumming

SOLICITOR FOR THE RESPONDENT: Cameron Gillingham Boyd

Orders

IT IS ORDERED BY CONSENT

1. That the parties do all acts and things and sign all current forms required to facilitate the child H born … August 1997 (“the child”) to have a fat injection procedure to be conducted by the Cranio Facial Team at the Children’s Hospital … between 13 July and 10 August 2012 inclusive or such other date as agreed between the parties.

IT IS ORDERED

1. That the child born … August 1997 (“the child”) live with the mother from 9.00 am on the day before the procedure referred to in order 1 above and that time with the father pursuant to the existing parenting orders shall commence on the following Monday at 9.00 am unless the parties otherwise agree and the mother shall, during the period from Friday to Sunday facilitate the child’s spending time with or speaking to his father at such times and places as are agreed between the parties.

2. That paragraph 2 of the mother’s Application in a Case filed 29 June 2012 be stood over to 27 August 2012 at 10.00 am before the Honourable Justice Rees.

3. That pursuant to Sections 65DA(2) and 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 those particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hale-Forbes & Firth has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3026 of 2011

Ms Hale-Forbes

Applicant

And

Mr Firth

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application filed on 29 June 2012 concerning H, who was born in August 1997 (“the child”), and is thus almost 15 years old.  The child’s parents, Mr Firth (“the father”) and Ms Hale-Forbes (“the mother”), separated in March 2004.  The child is the oldest of the three children of their relationship. 

2. The child has been diagnosed with complex medical problems, relevantly for the present application, an autoimmune disease localised to his face, and a disorder of the central nervous system.  The child was diagnosed at about five years of age and was referred to, and has since been managed by, the craniofacial team at a Children’s Hospital in Sydney (“the  Hospital”).  Every year the child attends an annual clinic for assessment by a multidisciplinary team, including plastic surgeons, neurosurgeons, orthodontists, psychiatrists, and physiotherapists.  In recent years the consultations have been with plastic surgeons, Mr G and Mr M. 

3. Before me the parties agreed to an order by consent in the following terms: 

   ...that the parties do all acts and things, and sign all documents, required to facilitate [the child], born [in] August 1997, to have a fat injection procedure to be conducted by the craniofacial team at [the Hospital]  between 13 July and 10 August 2012 inclusive, or such other date as agreed upon between the parties. 

4. The present application is, firstly, the mother’s application for an order that she have sole parental responsibility in relation to any medical procedure;  and secondly, that the time the child spends with his father be varied so that he spends the day prior to the procedure, and two days following the day of the procedure, with the mother. 

5. The parties have agreed that the issue of sole parental responsibility should be stood over to the first day of the less adversarial trial before me on 27 August 2012, when it is hoped that the report, which is being prepared by a family consultant, Mr L, will also be available.  Therefore, the issue for determination today is the child’s pre and post-operative care. 

6. The mother gives evidence that the child’s condition has been managed by a paediatric rheumatologist, Dr C, based in the Upper North Shore of Sydney, and that she has been the parent who has taken the child to nearly all of his consultations with Dr C. 

7. In 2006, in March, the child had surgery at the Hospital for the insertion of a fat graft in his face.  The mother was at the hospital for the procedure, and in the two weeks after his recuperation the child was mostly cared for by his mother.  In April 2006 the child suffered postoperative complications, which resulted in an emergency admission to the Hospital.  His postoperative care after that admission was also managed largely by the mother.

8. Over the following years the child suffered from staph infections, and his treatment was coordinated by the mother.  In February 2012 there was another, less invasive, procedure involving the injection of fat taken from his abdomen into the child’s cheek and jaw.  That procedure took place on a Friday.  The father did not attend on the day of the day surgery, and the child was cared for after his release on that day at home by his mother.  On Saturday evening he fainted and hit his head, and the mother’s brother, who is a medical practitioner, came to the home to assist the mother with the child’s care. 

9. Pursuant to the parenting orders then in place, the child was to go to his father’s at 3 pm on Sunday.  The child chose to go to his father’s and remained with his father until Tuesday in the morning.  The father, in his evidence before me, agrees that the mother has been primarily responsible for the child’s medical management, and for consultations with his doctors.  He acknowledges that she has been diligent, and he has left the child’s routine medical care to her.  There does not appear to be any dispute that the mother has been assiduous in keeping the father informed of matters relating to the child’s medical condition and medical care.

10. It has been the mother who has attended consultations with the child and his treating specialists.  The mother has largely been the person who cared for the child when he was ill, and before and after surgery.  The surgery which is proposed to take place will take place on a Friday.  If the surgery is on 13 July it will impinge on child’s time with his father, pursuant to the existing orders.  The father argues that there is no evidence that he cannot properly care for child, and that the mother could have unrestricted access to the child in the father’s home. 

11. The relationship between the parents is strained.  The relationship between the mother and the father’s new wife is more strained.  It would be difficult for the child and the mother to spend time together in the father’s house. 

12. After the child’s procedure the other two children will be spending time with the father and his wife and their two young children of preschool age.  In his mother’s home child would receive one-on-one care for the days after the procedure.  There is nothing in the evidence before me that suggests that the child would not be able to communicate with his father during the two days after the procedure.

13. Because the mother primarily cared for the child after his two earlier procedures she is more familiar with the requirements of his postoperative care.  To require the mother to go to the father’s home to see the child during those days would impose the parental conflict on the child in a way that could not assist in his recuperation.  Because the procedure will be performed under general anaesthetic child will have to be monitored so that the clinic can be informed if he has any symptoms which contraindicate the administration of an anaesthetic.  Because the mother has fulfilled that role on the last two occasions she is better placed to perform it on the next.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 3 July 2012.

Associate: 

Date:  19 July 2012