Knill and Beckett

[2016] FamCA 1172

FAMILY COURT OF AUSTRALIA

KNILL & BECKETT [2016] FamCA 1172

FAMILY LAW – Interim Proceedings – Where allegations of family violence have been made – Where time spent with child and the child’s attendance upon medical practitioners are key issues

Family Law Act 1975 (Cth)

APPLICANT: Mr Knill

RESPONDENT: Ms Beckett

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Evans Family Lawyers

FILE NUMBER: CAC 712 of 2016

DATE DELIVERED: 21 December 2016

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 21 December 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Howard

SOLICITOR FOR THE APPLICANT:	Farrar Gesini Dunn Family & Collaborative Law
SOLICITOR FOR THE RESPONDENT:	Ms Johnson

SOLICITOR FOR THE INDEPENDENT
CHILDREN’S LAWYER: Mrs Evans

ORDERS

Order 2 of the Orders made by Judge Neville on 30 September 2016 is amended so as to be as follows:

1. The parties are to have equal shared parental responsibility for the child B, born … 2015, subject to the following:

   a.Absent agreement between the parties, the mother is to make the final determination with regards to matters regarding the child’s health only.

   b.In relation to attending upon a General Practitioner, the child is to attend upon the Suburb C Family Practice and no other practice save in case of an emergency, and in relation to attendance upon a paediatrician, is to attend upon Dr D.

   c.Each party will authorise each treating medical practitioner to release information regarding the child to the other parent and to record information given by the other parent regarding the child onto the child’s medical records.

   d.Prior to attendance upon a medical practitioner for the child each parent is to advise the other in writing:

   i.The identity of the medical practitioner;

   ii.The time and place of the appointments; and

   iii.The reason for the consultation.

   e.These orders do not permit or authorise the parents to attend upon a treating doctor for the child together.

   IT IS NOTED THAT

   f.The terms of the Domestic Violence Order in force at the time of the making of these orders preclude joint attendance upon a medical practitioner in the absence of an authorising order.  This is not an authorising order.

IT IS FURTHER ORDERED THAT
Order 4 of the Orders made by Judge Neville on 30 September 2016 is amended so as to be as follows:

1. Absent agreement in writing, the child will spend time with her father as follows:

   a.In week one:

   i.On Monday from 12pm until 4pm;

   ii.On Wednesday from 12pm until 4pm; and

   iii.On Thursday from 5pm until 1pm on Friday.

   b.In week two:

   i.On Monday from 12pm until 4pm;

   ii.On Wednesday from 12pm until 4pm;

   iii.On Friday from 5pm until 1pm on Saturday; and

   iv.On Sunday from 12pm until 4pm.

Order 5 of the Orders made by Judge Neville on 30 September 2016 is varied so as to be as follows:

1. The father is not to attend at changeover, and all changeovers on his behalf must be conducted by a third party with no more than two people on behalf of the father and if the mother choses to use third parties no more than two people on her behalf are to attend changeover.

Order 6 of the Orders made by Judge Neville on 30 September 2016 is varied so as to be as follows:

1. All changeovers are to be in a public place, as agreed in writing between the parties and the Independent Children’s Lawyer and failing agreement, changeover is to be at the ACT Police Station in Suburb E.

2. Nothing in the above order is to be taken to be an authorisation that allows the father to approach within 100 metres of the mother as set out in the Domestic Violence Order in force at the time of the making of these orders. 

IT IS NOTED THAT

1. The father is on notice that to facilitate changeover the mother parks in the Magistrates Court car park.  In the event that the father remains within 100 metres of either the City Police Station or of the Magistrates Court car park he is at risk of being found to be in breach of the Domestic Violence Orders in force at the time of the making of these orders.

IT IS FURTHER ORDERED THAT

1. The mother is at liberty to travel with the child to Tasmania for the period 2 January 2017 to 10 January 2017 inclusive with the child to have makeup time with the father as agreed, or failing agreement as follows:

   a.From 12pm on 25 December 2016 until 4pm on 26 December 2016;

   b.From 12pm on 27 December 2016 until 4pm on 27 December 2016; and

   c.From 12pm on 31 December 2016 until 4pm on 31 December 2016.

2. The Application in a Case filed by the mother on 1 December 2016 and the response to an Application in a Case filed by the father on 9 December 2016 are otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 712 of 2016

Mr Knill

Applicant

And

Ms Beckett

Respondent

REASONS FOR JUDGMENT

1. This is a case concerning arrangements for the care of and medical arrangements for the child in the context of serious conflict between the parents and accusations of serious family violence.  A number of medical and timing issues have recently been dealt with by the Federal Circuit Court.  The structure of those required a degree of agreement that has not been forthcoming between the parties.  There are further issues concerning the workability of handovers.  The first issue involves the general practitioner.  The order as made in the Circuit Court allows attendance on one general practitioner and one paediatrician. 

2. The parties have been able to agree upon the paediatrician but not upon the general practitioner.  The father seeks, in his response, that the general practitioner be the Suburb C Family Practice.  The mother, orally, sought that Dr F of the Suburb G Medical Practice be the single general practitioner.  The evidence as to these matters occurred in the father’s affidavit between paragraphs 10 and 12 and the mother’s at paragraph 11.  Relevantly, aside from the proposed general practitioners who have seen the child, there are another nine general practitioners that appear to have seen the child.  The proposal from the mother seeks another. 

3. It is on the basis that that person would be independent, although the mother appeared to concede before me that she had attended that practice previously.  There is no other evidence led about that particular practice.  Given the previous association between the child and the Suburb C Family Practice and the fact that she has seen so many other general practitioners, I will order that that practice will be the single practitioner.  The second and related matter related to attendance at medical appointments.  The current orders provide for both parties to attend at each consultation.  The issues in relation to that, for the mother, were an asserted history of intimidation, family violence and the presence of a domestic violence order. 

4. For the father, the issues were the necessity to give an appropriate history to the medical treaters, and his assertion that it was unlikely that that would occur if there was only one parent in attendance.  The context of this particular matter is that one of the agreed issues in dispute for the final hearing relates to what appropriate medical treatment should occur for the child.  The mother’s evidence appears from paragraphs 7 to 10.  The father asserted that he apparently had a recording of an interaction that had occurred with one specialist.  He was refused leave to rely upon multiple affidavits at the interim hearing.

5. However, it may be accepted that there is some level of dispute about what occurred with Dr H.  The issue is in the further context of being related to another agreed issue, that is, an agreed issue of whether or not there has been family violence in the relationship, including a sexual assault or sexual assaults upon the mother.  If it’s true that there have been sexual assaults perpetrated upon the mother by the father, these mark a circumstance where it is likely to conflict with the best interests of the child to compel the parents to together discuss and to together attend upon appointments.

6. If the contrary position is right and the allegations are not true, then precisely the same observations may be made in that they would mark a circumstance where the likely conflict that would occur from bringing the parents into close contact with each other is not in the child’s interest, particularly when it may be the case that the child will be required to attend on some of these medical attendances.  I propose to discharge order 2(C) of the orders made by Judge Neville, but in order to best preserve the opportunity to provide for balanced information to be provided to the treaters, I will make orders which compel the parties to authorise the medical practitioners to speak to the other party and authorise the medical practitioner to record on the child’s medical records the assertions made by the other party.

7. I will also make orders which will provide for notice to be given of every attendance, whom the attendance is upon, when it is to occur, and the reasons for the attendance.  However, this order will not be made in a fashion to interfere with the operation of the domestic violence order, which will mean that the parties will be unable to be within 100 metres of each other at the time of the attendance.  This will preclude them from attending together.  The third issue was - a limited issue as the nature of the time that the father would spend with the child.  Much of the father’s initial proposed phase of time was accepted by the mother, save for one particular matter and that was the handover time following overnight time with the child.

8. The scope of the dispute was, on the mother’s part, the handover was to occur at 12 pm and on father’s part at 1 pm.  The father’s evidence about this occurred at paragraph 16, the mother’s at paragraph 5.  The father’s assertion is that it fits better with the child’s routine regarding a nap and eating and returning to her mother.  The mother asserts that the regime is exhausting for the child because of the absence of a nap.  There appears some benefit to the child to coordinate the handover in a manner that fits best with her routine.  Given the father’s explanation of the routine, I will make orders that will allow that handover to occur at 1 pm. 

9. In the second phase of his proposed time, the father sought significant change to occur from 1 April 2017, such as to include two overnights in a row.  The evidence is not sufficient, at this stage, to enable me to determine that such an arrangement will, at that point, fit the child.  I note that it is hoped that the single expert report will be available by that stage which might throw some light onto that issue.  The fifth issue concerns the arrangement for handovers.  The father sought a retention of the current arrangement which sees the parties handing over outside the city police station or in the alternate - that there be handovers at the war memorial or at day care.  He conceded that the mother may attend on her own behalf rather than be required to attend through a third party, which is the current arrangement.

10. The mother sought that handovers occur at Suburb I.  The father’s evidence about this appeared at paragraphs 18 to 22 of his affidavit.  He asserted Suburb I would be 20 to 40 minutes away in circumstances where he often has a visit that last for four hours.  The mother’s evidence at paragraph 16 indicated that she had difficulty obtaining third parties to attend on her behalf.  She also had difficulties because of the proximity of the father at the time of handovers and, due to what she sees as aggression occurring at the handovers, and, further, due to his refusal to agree to her attending rather than requiring her to attend via a third party;  each of those are difficult circumstances at face value.  However, it was pointed out by the father that there is no evidence as to the availability of the facilities at Suburb I. 

11. I will vary the orders to allow the mother to attend on her own behalf, should she choose to do so, at the city police station.  She is still enabled to attend via a third party if she is able to, or wishes to organise that.  However, I will also make it clear that the orders do not operate as an exception to the domestic violence order’s prohibition on approaching within 100 metres.  To that end, in the orders I will make a notation to place the father on notice that the mother parks in the Magistrates Court carpark and that if he remains within 100 metres of the city police station or 100 metres of the Magistrates Court carpark, he is at risk of criminal proceedings due to breach of the orders.

12. The sixth matter involved the father’s application to have the child enrolled at the J ORG day care.  He dealt with this at paragraphs 23 and 24 of his affidavit.  He proposes care arrangements to occur during the time that the child spends with her mother.  This is properly a matter for the mother to determine as an exercise of her parental responsibility.  Likewise, if the father wishes to place the child into day care because he thinks that is good for her socialisation during time that she is to spend with him, then as an exercise of his parental responsibility, he is at liberty to do so.  I decline to make those orders sought by the father to have the mother place the child into childcare during his time.  The evidence does not establish that it is in the child’s best interest to interfere with the mother’s exercised parental responsibility in this manner. 

13. The last matter related to make up time, as the mother is due to travel, shortly, to Tasmania for a period of time.  The parties had quite different proposals in relation to that time.  The father’s proposal marked a sharper change of arrangements for the child than the mother’s.  His sharper change involved two sets of two overnights for the child.  I place some importance on consistency and see that the mother’s proposal is closer, as it interacts with the other orders, to being consistent with the child’s current arrangements. 

14. That is, it is closer to mimicking the current pattern even though it will result in the child spending almost every day with her father for a period of time.  I will make one adjustment to the mother’s proposed orders, and that is on 26 December the hand back time will be 4 pm and not 9 am.  Accordingly, I publish my orders.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 21 December 2016.

Associate: 

Date:  27 March 2017