Irby and Gilles
[2010] FMCAfam 523
•14 May 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| IRBY & GILLES | [2010] FMCAfam 523 |
| FAMILY LAW – Children – parenting orders – child with special needs. |
| Family Law Act 1975 (Cth), s.60CA |
| Applicant: | MR IRBY |
| Respondent: | MS GILLES |
| File Number: | SYC 2074 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 14 May 2010 |
| Date of Last Submission: | 14 May 2010 |
| Delivered at: | Sydney |
| Delivered on: | 14 May 2010 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Sperling |
| Solicitors for the Applicant: | Legal Aid NSW |
| Counsel for the Respondent: | Mr Keller |
| Solicitors for the Respondent: | Alfred Morgan & Son |
| Counsel for the ICL | Ms Falloon |
| Solicitors for the ICL | Peter Baker Solicitor |
ORDERS
All previous orders are discharged, save and except those orders made by consent on 12 May 2010.
The child [X] born [in] 2007, is to continue to attend the [A] program on Thursday mornings until a further assessment by the [S] Clinic, anticipated to be in or about August 2010 and, thereafter both parents are to accept the recommendations of the [S] Clinic as to the child's continuing attendance if any.
Both parents are entitled:
(a)to receive information ordinarily provided to parents by any pre-school or school attended by the child [X], and to attend school functions and events which parents ordinarily are invited to attend; and
(b)to receive reports of the child [X]'s progress at the [A] program and by appointment consult individually with the [A] program providers.
Unless otherwise agreed in writing, for the purposes of the child [X] moving from the care of one parent to the other, except on days when he is at a playgroup or attending pre-school or school arrangements are to be as follows:
(a)For so long as the Mother continues to live in Property M, New South Wales, in front of the Mother's home; and
(b)If the Mother changes residence, in front of the entrance of the Woolworths Store in [M] New South Wales.
The Father Mr Irby [born in] 1956 his servants, and/or agents and the Mother Ms Gilles [born in] 1969 her servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child [X] [born in] 2007 from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to the order by placing the name of the said child on the airport watch list otherwise known as the PACE System enforceable at points of arrival and departure in the Commonwealth of Australia and maintain the said child's name on the Watch List until the Court orders removal.
IT IS NOTED that publication of this judgment under the pseudonym Irby & Gilles is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2074 of 2007
| MR IRBY |
Applicant
And
| MS GILLES |
Respondent
REASONS FOR JUDGMENT
This is an application for parenting orders relating to a little boy called [X], who was born [in] 2007. He lives with his mother and spends regular amounts of time with his father each week.
The Father is the Applicant in these proceedings. For some time now, there have been concerns about the Child's development, especially in the area of his speech. The Father took the Child to a consultant pediatrician in October 2008, and to a speech pathologist in November 2008.
On 15th May 2009, the Child was assessed by Dr P, as having severe expressive and receptive language delay, moderate global development delay, and autistic disorder. Since that date, the Child has been assessed by the [S] Clinic as having global development delay, but not autistic spectrum disorder.
The parties agree that parental responsibility for the Child, [X], should be shared equally between them. They have agreed to a number of orders about their son's welfare, and those orders were made by consent on 12th May this year. Those orders provide in brief for:
a)equal shared parental responsibility;
b)the times that the Child will spend with each parent;
c)the need for the Child to receive education and services, as recommended by the [S] Clinic, until he commences formal schooling;
d)consultation by the parents with the clinic about when the Child is to attend school, and which school he is to attend;
e)the ongoing need for the Child to attend programs and activities as recommended by various educational, medical and psychological professionals;
f)discussion between the parties about the need for the Child to be taken to any professional, other than in a medical emergency;
g)the provision of information to each other about specialist assessment or intervention for the Child;
h)attending medical and other appointments;
i)engaging in counselling with an appropriate organisation;
j)providing for alternative care of the Child if a parent is unable to care for him for a period of more than four hours;
k)advising each other of changes to residential addresses or telephone numbers;
l)informing each other about any necessary medical attention for the Child due to illness or injury;
m)attendances by the parents at hospital if the Child requires hospital treatment;
n)provision of a copy of the orders by the Independent Child's Lawyer to the [S] Clinic; and
o)telephone communication.
Nevertheless, there remain several issues between the parties that require a judicial decision. Those issues are:
a)whether the Child should continue to attend the [A] program until further assessment by the [S] Clinic, which is scheduled for a date in August 2010;
b)arrangements for the change‑over, when the Child goes from the care of one parent into the other;
c)whether the interim order restraining the parents taking the child out of Australia should remain in place.
Counsel for the Independent Children's Lawyer, Ms Falloon, submitted the Child should continue attending the program until assessment in August; noting the evidence of Dr Greenfield, the Family Report writer, that the Child appeared to be making progress, and that, at the very least, his continued attendance would do no harm. The evidence was that it could well be of benefit to him. Ms Falloon submitted that change‑overs, when the Child went from the care of one party to the other, should take place outside of the front entrance of the Woolworths store in [M], noting that is within walking distance of the Mother's home, and is a public place where the handover could take place without difficulty.
She submitted that it would be illogical for change‑overs, which will continue until the Child reaches the age of 18, to be tied to a venue outside a pre-school, as the Mother submitted. It was also the Independent Children's Lawyer's position that the Child's name should remain on the Airport Watch List, and the restraint on the parents taking him out of the Commonwealth of Australia should remain. It would always be open to one or other of the parents to apply specifically to the Court if they wished to take the Child on a holiday out of Australia.
The Father's solicitor, Mr Sperling, submitted that the Child should continue to remain attending the [A] program until the assessment takes place in August. He tendered some material produced on subpoena from Autism Spectrum Australia, including contact records, and an individual education plan. The submission was that the Child appeared to be making progress, as the course has a high staff/student ratio.
On the question of change‑over, it was submitted that whilst the Mother continued to live at her present address in Property M, change‑over should occur outside her house. The change‑over was taking place outside her premises, and it was submitted that it was important for this child to remain in a stable routine. Mr Sperling also submitted that, as far as the change of the proposed venue of the front entrance of Woolworths was concerned, that would be a second change for the Child, [X]. His view was that it should only be implicated if the Mother should move from her present address.
Mr Sperling referred to the Mother's proposal about the Child being collected from outside the pre-school, and pointed out that currently this child only attends preschool on two days a week. He, also, is of the view that the change‑over might be subject to what the [S] Clinic recommended, particularly as far as ongoing pre-school attendance was concerned. There was no evidence as to what shelter was available outside the pre-school, and, also, he was of the view that change‑overs could occur at a time when the pre-school was not open. Thus, his submission was that the Court should look at the Child's needs, and looked at providing stability for the Child.
Counsel for the Mother, Mr Keller, reiterated the Mother's view that the change‑over should take place outside the child care centre. The Mother had expressed some reserves about the Child continuing to attend the [A] program, and it is conceded that there had been some unfortunate history when the Mother had arrived at the program, apparently without an appointment, and had had difficulty communicating with the program providers, due, amongst other things, to her limited English. The Mother was also of a view that any injunction on the parents taking the Child out of the Commonwealth of Australia should be removed, and was of a view that the Child's name should be removed from the Airport Watch List.
I have had the opportunity of hearing evidence from the writer of the Family Report, Dr Julie Anne Greenfield, which evidence was taken on 11th May 2010. Dr Greenfield's view was that it would do no harm for this child to continue at the [A] program until the assessment were to take place in August, which is proposed by the [S] Clinic. Her investigations showed that the program is an official New South Wales government program, funded by both the Department of Education and the Department of Ageing and Disability. It is an early intervention program, which takes place for a period of two hours every week. There is a high staff/student ratio, and, at this stage, only three children are currently enrolled.
The program has a child and a parent component, and aims to prepare children for a mainstream setting. She described the four components of the program and referred to its structured regime. Her evidence was that it is only about 10 weeks before the Child is due for another assessment. She did not believe that it would do him any harm to continue with the program until the next assessment, which would involve attendance for about 20 hours over 10 attendances. In cross‑examination, she took the view that the Child has clearly progressed, and was of the view that he may well benefit from continuing with the program.
She conceded that he has not been diagnosed with an autistic disability, but has a global development delay, and in answer to questions asked by Mr Keller of counsel, gave her view that another 10 weeks’ intervention may well be of assistance, but certainly would not do the Child any harm. She conceded that whilst the Father was involved with the program, that the Mother could not be involved as a full member of the parent group because of the existence of an apprehended violence order affecting her.
My view is that the evidence points to the benefits, and an absence of harm in the Child continuing with this program. I am satisfied there is evidence that he has benefitted from it, even though the current diagnosis is that he does not have an autistic disability. Nevertheless, he is only a young child of three years and three months, and there is clearly a developmental delay, and a need for ongoing intervention by appropriate professionals. I am satisfied that Dr Greenfield's evidence shows that the Child has appeared to benefit from the program, and I'm strongly of the view that he should continue to remain, and I propose to make such an order.
The concern about the Mother's inability to be involved fully was raised, quite properly, by Mr Keller of counsel. However, counsel for the Independent Children's Lawyer has proposed that orders should be made that each parent should be entitled to receive information as to his progress, and that the Mother should be able to make an appointment to have an individual consultation with the [A] program providers, and I'm of the view that that is an appropriate order.
As to contact change‑over, to use the old term, the current arrangement is that change‑overs are taking place outside the Mother's home in Property M, and, in my view, whilst the Mother continues to live there, that should remain. I understand that it is likely that she will move from there at some stage in the future. If the Mother does change residence, I am also of the view that the Woolworths Store, which is in [M] is an appropriate place.
Ms Falloon told the Court that the Woolworths store is within walking distance of the Mother's present residence - would not require a car to get there. There is shelter at the front of the entrance, and the store, as is so often the case with large chain stores these days, is open for lengthy periods of time, all days of the week, and is virtually a public place. It is a more appropriate venue, in my view, than the front of the pre-school where the Child at this stage, only attends two days a week, although that could increase, and I accept the submission that it is inappropriate for a pre-school to be a change‑over place for orders which could well remain in force until the Child attains the age of 18 years.
It has always been a concern of the Father that the Mother would attempt to remove the Child from the Commonwealth of Australia, as a result of the differences and animosity between them. In my view, removing the Child, at this stage, would not be in his best interests. He is taking part in a program. He is seeing various professionals, and his speech and general cognitive ability appears to be improving, and I'm mindful of Dr Greenfield's evidence that he is benefiting from the programs in which he is involved. A removal at this stage could well be a retrograde step as far as this Child's welfare is concerned.
In my view, the injunction should remain in place. It is always open, as has been put to the Court, for a parent, at an appropriate time in the future, to apply for an order that he or she be able to take this Child out of Australia for the purpose of a holiday to see overseas relatives in either Egypt or the Sudan.
I have been conscious of the requirement to make orders that are in the best interests of the Child under s.60CA of the Family Law Act, and I have been guided by the expert evidence which I have heard, and which has also been contained in the three family reports prepared by Dr Greenfield. This is a matter that has been ongoing for a lengthy period of time, and it is appropriate that final orders should be made to bring this matter to an end to allow the Child to progress.
I would comment that the legal advisors for all three parties have provided a great deal of assistance to the Court in dealing with a sensitive and difficult parenting case. The legal representatives have handled their part of the case with sensitivity and intelligence, and I would particularly express the Court's appreciation of the assistance to the Court provided by the Independent Children's Lawyer. Counsel for the Independent Children's Lawyer, Ms Falloon, provided helpful submissions, and useful documentation in the form of draft orders, and demonstrated, not only sensitivity and commonsense, but what appears to me to be a considerable amount of hard work in attempting to achieve a positive outcome for this Child, and the Court is grateful for the assistance that has been provided, particularly by the Independent Children's Lawyer, and counsel for the Independent Children's Lawyer.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 25 May 2010
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