Klomp and Watson

[2013] FCCA 90

FEDERAL CIRCUIT COURT OF AUSTRALIA

KLOMP & WATSON [2013] FCCA 90

Catchwords:
FAMILY LAW – Parenting – child with special medical needs – father living interstate.

Legislation:
Family Law Act 1975, Part VII.

Cases cited:
Goode & Goode [2006] FamCA 1346

Applicant: MR KLOMP

Respondent: MS WATSON

File Number: BRC 11846 of 2009

Judgment of: Judge Altobelli

Hearing date: 7 February 2013

Date of Last Submission: 7 February 2013

Delivered at: Sydney

Delivered on: 7 February 2013

REPRESENTATION

The Applicant in person

Solicitors for the Respondent: Stacks Family Law

Solicitors for the Independent Children’s Lawyer: Legal Aid Commission of NSW

ORDERS

1. The child [X] (born [in] 2007) (hereafter "the child") shall spend time with the father a minimum of once per month on the following basis:

   1.1Such time shall take place under the supervision of either:

   1.1.1A contact centre as agreed between the parents, or

   1.1.2A professional supervision agency, or

   1.1.3Any other person agreed between the parties;

   1.2The costs of supervision shall be shared equally between the parties;

   1.3All other costs associated with such contact (including his travel to Sydney) shall be borne by the father;

   1.4The first visit shall be for one hour, the second visit for two hours and thereafter visits shall be up to four hours, subject to the availability of a supervisor pursuant to order 1.1 herein;

   1.5Such time shall commence during the school holidays at the conclusion of Term 1, 2013, subject to the availability of a supervisor;

   1.6Such time is conditional upon, and shall commence after, the father's engagement in:

   1.6.1An education session with [X]'s treating medical team coordinated by [omitted] Hospital Brain Injury Rehabilitation Program as to the nature of [X]'s cognitive deficits resulting from his brain injury and the way in which these impact on his behaviour and emotional functioning,

   1.6.2all face-to-face training sessions recommended by [X]'s treating medical team as coordinated by [omitted] Hospital Brain Injury Rehabilitation Program, regarding management of [X].

2. For the purposes of order 1.1:

   2.1the parents shall each within seven days of these orders exchange proposals as to the identity of supervisor or centre, and in the absence of agreement shall follow the recommendations of the Independent Children’s Lawyer.

   2.2Within a further seven days thereafter, each party shall do all things necessary to register with the relevant supervisor/centre/agency and shall thereafter follow all recommendations of the supervisor.

3. Commencing after the father's first face to face time with the child, the father shall thereafter have telephone communication with the child every alternate Sunday, with the father to telephone the child at 6pm, AND for the purposes of this order the mother shall provide the father in writing with a telephone number on which the child can be reached.

4. The parties are restrained from discussing with [X] the allegations made against each party in these proceedings, including any allegations of domestic violence.

5. Each parent is restrained from denigrating the other parent, or members of their household, in the presence or hearing of the child.

6. The mother will before the conclusion of Term 1, 2013, attend upon [X]'s treating professionals to receive advice concerning 'life story work' to be done for [X], and shall ensure that before the conclusion of Term 1, 2013 she commences implementing such advice and recommendations.

7. That the matter be transferred to the Family Court of Australia and listed on 11 March 2013 at 10:00am before a Registrar.

THE COURT NOTES THAT:

A:Further to Order 4, it is noted that [X]'s medical team has recommended 'life story work' be done with [X] to help him understand his father's place in his life, and both parents will each follow and comply with the recommendations of [X]'s treating medical team in this respect including providing and compiling photographs of significant events and people in [X]'s life and assisting [X] to understand their different roles.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA
AT SYDNEY

BRC 11846 of 2009

MR KLOMP

Applicant

And

MS WATSON

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. This case relates to a child, [X], born [in] 2007. [X] is five years old. His father is the applicant. He is 47 years old, lives in Queensland, and describes himself as a [occupation omitted]. [X]’s mother is the respondent. She lives in New South Wales, is 44 years old, and describes herself as a [occupation omitted].

2. The parents cohabited in Queensland in 2006, but separated a short time thereafter. [X] was born after the date of separation, and the mother subsequently relocated to Canberra and then to Sydney. 

3. Litigation commenced in the Federal Magistrates Court, Brisbane, in 2009, and a number of interim orders were made, the last and most relevant of which is dated 14 April 2011.  These orders were made by the late Federal Magistrate Slack.  In effect, these orders provided for supervised contact, followed by unsupervised contact.

4. Tragically, in August 2011, the mother and [X] were involved in a serious car accident, in which both suffered serious injuries.  The father visited [X] in hospital in September 2011, and that is the last time that he has seen him.

5. The impact of the motor vehicle accident on [X] is the real issue in this case.  For all practical purposes, [X]’s life changed after the accident.  He suffered traumatic brain injury, amongst a number of other physical problems.  The issue is the extent to which the residual impacts on [X] of his injuries impact on the most appropriate parenting order to be made in relation to his time with his father.

6. The father’s proposal is set out in an annexure entitled Draft Orders dated 7 November 2012, being an annexure to the father’s affidavit of 4 December. 

7. The mother’s proposal and the Independent Children’s Lawyer’s proposal were closely aligned by the time that submissions started before me yesterday.  The differences will be commented on below.

8. The father relied on his written submissions and his five affidavits filed 30 January 2013, 7 December 2013, 19 September 2012, 5 April 2012 and 27 March 2012.  The mother relied on her solicitor’s case outline and her affidavits of 4 May 2010, 5 April 2011 and 7 December 2012.  There are a number of relevant exhibits and evidence of a medical nature, to which I will make reference.

9. The applicable law governing these applications is contained in Part VII of the Family Law Act, and the Full Court’s decision in Goode & Goode contains a useful template for dealing with these applications, as well as a discussion of the relevant law, and I will incorporate into these oral reasons a number of the relevant paragraphs from the Full Court’s decision.

10. There appear to be a number of uncontested facts on the evidence before me.  The father’s contact with [X] seems to have been limited even before the accident in August 2011.  The reasons for this are in contention, but for present purposes are irrelevant. 

11. Another uncontested fact seems to be that the mother and father cannot communicate and do not trust each other.  I think the medical evidence adduced by the Independent Children’s Lawyer and the mother constitutes, at least in part, another uncontested fact, and that suggests that [X] is a vulnerable little boy who, whilst having recovered from his physical injuries quite satisfactorily, has been left with serious residual behavioural problems, and these are summarised firstly in

    
    

    Dr E’s letter to Dr H, dated 16 August 2012, and secondly in Dr E’s and Ms P’s letter to the Independent Children’s Lawyer dated

    
    

    4 December 2012.

12. These documents are part of the affidavits and the evidence before me, and are quite critical to the decision I make today.  As they are long, all I can do is to incorporate the relevant parts of those reports into these, my oral reasons.

13. A further uncontested fact is that the father has not seen [X] or experienced [X]’s behaviour since his tragic motor vehicle accident. 

14. I record here a number of relevant impressions that have formed from the evidence.  These are only impressions, not findings, but they of necessity inform the exercise of discretion at an interim level in this case.

15. The impressions form that the father does not unequivocally accept the medical reports in relation to [X].  The impression is that the father does not unequivocally accept the mother and the Independent Children’s Lawyer’s interpretation of this evidence in terms, especially as to how it’s reflected in the proposal to re-introduced the father into [X]’s life.

16. A further impression formed from the evidence is that the father has limited insight into the enormous problems that [X] confronts in his day-to-day life.  This is not a critical observation of the father.  He has not seen [X] since the motor vehicle accident.  Unlike the mother, he has no real lived experienced of [X]’s behaviour, the evidence of which is found in the mother’s affidavit, and which is almost impossible to contest given that it is so consistent with the medical evidence about [X].

17. A further impression is that the father is convinced that the mother’s behaviour in resisting contact after the accident is no different to what he perceived to be her resistance before the accident.  Indeed, there is almost an implied theme in the father’s case that the mother has opportunistically used the accident as a way of further distancing [X] from the father.

18. The significance of all of these issues becomes apparent when one focuses on the differences between the father’s proposal on the one hand, and the mother and independent children’s proposals on the other. For example, a clear recommendation from the medical evidence is that the father needs to be educated about [X]’s cognitive deficits and their impacts on his behaviour and functioning. The father believes that his can be done as a one-off event, and does not even need to be done in person. The mother and Independent Children’s Lawyer contend that the father should do all things necessary to comply with requests by [X]’s medical treatment team. When one regards the medical evidence available, the impression is that the father’s approach to this very first, but important, stage is somewhat minimalist, and fails to recognise the gravity, indeed the importance, of the issue.

19. The father proposes that, if there is to be supervision, it is to be a very short period only, whereas the mother and Independent Children’s Lawyer content that it should be supervised, at least on an ongoing basis for the time being.

20. Again, when one has regard to the evidence, especially the medical evidence, the impression formed is that the father is again minimalising and understating the significance of that supervision in the context of the restoration of his relationship with [X]. He has not spent any meaningful time with his son for a long time. Since then, his son has suffered a traumatic injury. For all practical purposes, tragic as it is indeed, the father is a relatively unknown figure in [X]’s life, at least for the time being. [X] is an exceedingly vulnerable little boy from so many different perspectives. When one understands this context, supervision is necessary. It is a fundamental part of the restoration of the father’s relationship with [X], and it is not something that can be done on an ad hoc or short-term basis.

21. The father proposes contact increasing to seven hours per day, twice a weekend, within a relatively short period of time, that is, a matter of months.  The mother and the Independent Children’s Lawyer propose that it be once per month for two hours, increasing to four hours.  Indeed, it is proposed that the first visit be for one hour.

22. Having regard to the concerns that I’ve expressed in the context of my earlier comments, I think it follows quite inevitably that the re-introduction of the father into [X]’s life needs to be done very slowly, very gradually and very sensitively.  The father’s proposal is too much, too quickly.

23. The father proposes contact to be in Queensland, in due course.  The mother and the Independent Children’s Lawyer oppose that.  Given the clearly evident vulnerability of [X]’s changes in his routine, imposing on him a plane trip is clearly an invitation to cause him distress.

24. The father proposes that the mother contribute to his travel costs.  The mother proposes that the costs of supervision be shared.  Given the very high needs that [X] has, which is clearly evident from the evidence, the cost of this must be significant.  In the circumstances, it would not be appropriate to impose on the mother any further financial obligation.

25. The father’s proposals are, with respect, plainly untenable, demonstrate a lack of child focus, and would expose a very vulnerable child to far too many changes in too short a period of time.

26. There is a further concern arising from what appears to be the father’s inability to listen to and accept medical advice about [X]. This is exemplified, for example, by his attempt to rely on a report by a Mr B, a clinical psychologist, dated 2 December 2012, a report, for example, which is so subjective as to have no forensic value at all.

27. I am satisfied that the orders proposed by the Independent Children’s Lawyer, largely agreed to by the mother, are in [X]’s best interests.  There are a number of minor differences.  At 1.4, the mother proposes the first visit be one hour, the second be for two hours. The Independent Children’s Lawyer does not demur from that, and I agree.

28. The mother wishes to emphasise that all contact is subject to the availability of a supervisor.  Having regard to my comments above, that is quite consistent with the court’s own view of the situation.

29. There is a minimal change to order 6, which is of little consequence.

30. I am going to make orders in terms of the Independent Children’s Lawyer’s minute of order, subject to the minor changes that I’ve referred to and that were discussed in court yesterday.  I’m going to ask the Independent Children’s Lawyer to provide a minute of order, in consultation with both the mother and mother’s solicitor and the father.

31. I foreshadowed with the parties yesterday the possibility of making an order transferring this matter to the Family Court of Australia.  There is no doubt in my mind that this is a complex case that needs to be dealt with sensitively and thoroughly, and that the medical evidence will play a significant role in any final decision.  The impression that I have formed is that the medical evidence is contentious.  There is a real risk that the hearing of this case would be extended beyond the norm for this case, but in any event I am satisfied that the level of complexity warrants a transfer to the Family Court of Australia, and I will do so.  The matter will be listed at a date to be advised before the Family Court of Australia at Sydney.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Altobelli FM

Associate: 

Date:  19 April 2013