KENNETH & BOURKE

[2010] FamCA 1157

FAMILY COURT OF AUSTRALIA

KENNETH & BOURKE [2010] FamCA 1157

FAMILY LAW – CHILDREN – Parental responsibility – Attendance by father’s partner at medical and educational appointments

APPLICANT: Mr Kenneth

RESPONDENT: Ms Bourke

FILE NUMBER: MLC 5174 of 2008

DATE DELIVERED: 14 December 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 14 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr Ingleby

SOLICITOR FOR THE APPLICANT: Kennedy Partners

COUNSEL FOR THE RESPONDENT: Ms Vohra

SOLICITOR FOR THE RESPONDENT: Ballards

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: TJ Mulvany & Co

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5174 of 2008

MR KENNETH

Applicant

And

MS BOURKE

Respondent

REASONS FOR JUDGMENT

1. C is five and a half.  He is a little boy diagnosed with complex global development delays and an autism spectrum disorder.  I mention that at the outset certainly not to define the child by that, but because it warrants special note that the very particular care that he needs, he is fortunate enough to receive in the equal shared care of his parents.  They are intelligent, educated and quite obviously absolutely devoted to him. 

2. With the benefit of all the main professional witnesses associated with his care coming to Court together to give evidence a few months ago, a Family Report by an experienced psychologist, Dr L, a mature ICL, and above all, the fact that his parents have done the hard yards in negotiations for the child’s sake, the parents have, in fact, resolved almost every aspect of his care arrangements. 

3. There is only one major issue remaining unresolved which, in summary, relates to the involvement of the father’s partner partner, Ms R, in medical appointments and in school meetings for the child.  On the face of it, it seems like a minor issue, given the very substantial issues that the parents have otherwise been able to resolve.  But it is not hard to understand that the parents’ incapacity to reach agreement on this particular issue reflects a poignant mixture of sadness, resentment, and frustration. 

4. To spell it out, from the mother’s perspective, Ms R seems to be the person with whom with the father had started a relationship whilst still married to her, and so hurt and deceit are naturally likely to be felt by her.  She obviously finds it difficult to discuss issues in Ms R’s presence and, naturally, emphasises that Ms R has no role in decision-making for the child.  That is a task that lies with the parents. 

5. From the father’s perspective, he plans to marry Ms R.  They now have a baby daughter together.  C is as much an integral part of their household, and they are as much an integral part of his care-giving as in his mother’s home.  Ms R fully participates in the child’s care, so that it is to the child’s advantage if Ms R is a party to the same instruction as both of his parents.  Moreover, Ms R has some professional experience dealing with autistic children.  According to the father, it is definitely not intended that Ms R will in any way usurp any part of the parents’ decision-making for the child. 

6. The Family Report comments very favourably on the parents and, for that matter, Ms R.  The report encapsulates in a full and helpful manner the current conundrum. The mother’s sensitivity about Ms R’s involvement is understandable, the report points out, in the context of the history.  It follows that her heightened sensitivity to Ms R traversing her mothering role, or specifically by interfering with parenting decisions, is equally understandable.  So is the father’s frustration that although Ms R cares so much and so well for the child when he is in their care, she is then excluded from important information to help her implement that care to the best possible level. 

7. Dr L takes into account those disparate perspectives.  He is not really unduly critical of any of these three good people.  In his professional opinion, the mother is still struggling with grief caused by the circumstances of the marriage breakdown.  He recommends facilitated mediation between the two women, or individual psychotherapy to assist the mother.  He also noted though, that the mother’s difficulties with Ms R could have been exacerbated by the father having shown little demonstrable sympathy or empathy to the mother’s position. 

8. Dr L’s conclusion was to emphasise that the child’s best interests would be served if the three adults at least attend discussions with teachers, but not planning meetings – a distinction he drew to clearly mark the specific decision-making role of the parents – and if they could attend medical appointments together.  As Dr L put it, in a short passage quoted by Dr Ingleby, and it resonates with me, that:

   There can be no doubt that [C], with the enormity of the challenges confronting him and his parents, is entitled to the full spectrum of assistance available to him.

9. Dr L thus emphasises that Ms R’s capacity to hear medical and other advice will add to the assistance for the child.

10. Dealing first with the medical issues, I note it is already agreed that only the mother and father shall attend appointments with specialist paediatricians, Dr H and Dr S or their successors.  It is implicit in that agreement that those appointments are seen specifically as decision-making appointments. 

11. The mother, through counsel, says that she agrees that Ms R can attend any appointments with medical practitioners and allied services that are instructional in nature.  As a concept, that seems quite reasonable.  It did attract me.  However, the more that I contemplated that concept, the more inherent complications I could see associated with it.  As I said in the course of argument, it is almost impossible to distinguish in many instances when decision making crosses into instruction and vice versa.  It would be terrible for the child if his parents were crippled by definitional disputes before they even attended appointments. 

12. The clearest and calmest path is obviously the one that would be best for the child, and I am satisfied that it will be clearest and calmest for Ms R to be free to attend all the medical and allied appointments, save for the specialist ones that have already been put to one side. 

13. Ms R cannot participate in decisions.  Ideally, she will be wise enough to absent herself at least verbally, if not physically on some occasions.  I do not propose writing that into any orders.  It is just an observation, and as time goes by, hopefully an easier working relationship will develop. 

14. It is important that the parents shall be permitted to give the practitioners a copy of these orders so they can be clear as to the decision-making roles of the parents to the exclusion of Ms R. 

15. I do not propose making the orders sought by the mother to the effect that if the child is in her care, only she will take him to a doctor or allied professional.  The order should be drafted to reflect that, except for minor GP appointments or urgent medical matters, the parents shall give each other notice as soon as any appointment is made for the child, and they then need to keep each other informed as to whether the other parent wants to attend. 

16. I emphasise I am not proposing orders for Ms R to attend with the mother in the father’s absence.  Obviously his role is not being delegated to Ms R in any way, and it could only, at this stage at least, create a level of discomfort contrary to the child’s best interests if his father were not present.  Either he may choose to attend, or he may choose to attend with Ms R, but the third option of Ms R attending alone, which I do not believe anyone was actually urging on me, but I should just spell out, is not an option.

17. Dealing with education, the father argued through counsel that similar logic should apply, that is that Ms R needs to attend all educational meetings, as there is at least a potential crossover between planning and instructions.  I note though that Dr L does draw a distinction between a couple of specific planning meetings at the school and other parent-teacher interviews.  He says the distinction draws a good delineation of decision making between the parents as opposed to the involvement of Ms R and the parents.

18. The ICL proposes that the parents alone attend the first and last interviews of the year, and that Ms R be included if she chooses for the half-yearly report, and something called PSSG, which is the Phone Student Support Group, whereby the school apparently can telephone a parent at home. 

19. The mother also raised the issue of other school therapist interviews, saying that in her view, they should be for the parents only, as they frequently involve decision-making about therapy. 

20. I am satisfied that the reasonable compromise for the child is for the parents to attend the first and last main planning meetings of the year in the absence of Ms R, but that Ms R be able to attend any other parent-teacher interviews, PSSG meetings, and any other therapists’ meetings at the school, primarily because when it comes to the therapists’ meetings and parent-teacher reports, the boundaries are sufficiently blurred that I should make things more certain by including her.

21. I emphasise that due to the brevity of the issue that has been outstanding for me, I have not specifically emphasised the objects and principles in section 60B of the Act, the paramountcy of the child’s best interests under the Act, and the section 60CC factors that I am required to take into account.  The law is clear that I do not have to approach those factors on the basis of some sort of litany whereby each one must be “ticked off”, but suffice it to say that as relevant, I have made this decision putting the child’s best interests to the fore rather than necessarily what the parents want or what they would prefer.

22. I hope that this clears the way for them to concentrate on their very obvious love for C, and to actually enjoy him without having to be litigating over him.  I hope that the mother will contemplate Dr L’s words in order to see Ms R as a competent and caring partner in looking after the child in his father’s home, and that the father and Ms R will be sensitive to the desirability of the parents’ joint decision-making roles remaining inviolable, so that the only two people making decisions – important decisions for the child are his two parents.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 14 December 2010.

Associate: 

Date:  14 December 2010