Knill and Beckett (No 2)

[2019] FamCA 620

FAMILY COURT OF AUSTRALIA

KNILL & BECKETT (NO. 2) [2019] FamCA 620

FAMILY LAW – CHILDREN – medical treatment – interlocutory mechanisms for treatment where parties cannot agree on other parties’ involvement.

Family Law Act 1975 (Cth) ss 60CC and 64B
APPLICANT:	Ms Beckett

RESPONDENT: Mr Knill

INDEPENDENT CHILDREN’S LAWYER: Mills Oakley

FILE NUMBER: CAC 712 of 2016

DATE DELIVERED: 3 September 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 22 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Haddock

SOLICITOR FOR THE APPLICANT: Phelps Reid

COUNSEL FOR THE RESPONDENT: Mr Howard

SOLICITOR FOR THE RESPONDENT: Neilan Stramandinoli Family Law

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mrs Evans

Orders

Until further order:

1. Order 1 of the Orders of 21 December 2016 is subject to the following orders:

   (a)B, born … 2015, be caused by the Mother to attend upon an ear nose and throat specialist (the specialist) selected by B’s general practice;

   (b)That the Mother is authorised and permitted to cause B to undergo treatment, including surgery, as recommended by the specialist in the order of priority outlined by the specialist;

   (c)The Father’s permission is not required to authorise treatment of B that is performed in accordance with these orders;

   (d)The Mother is required to provide these orders and the annexed Exhibit Chambers 1 to the specialist;

   (e)The specialist is requested to note:

   (i)that Exhibit Chambers 1 represents the information the Father of B asserts is important for the specialist to take into account in formulating treatment for B;

   (ii)that the specialist is not required to respond to the Father’s requests for contact or discussion with the specialist;

   (iii)That the Father is restrained by injunction from contacting the specialist.

2. That pursuant to s 68B of the Family Law Act 1975 Mr Knill is restrained:

   (a)       from contacting by any means;

   (b)       from attending upon; and

   (c)       from attending the practice of;

   the specialist.

3. That pursuant to s 68B of the Family Law Act 1975 Mr Knill is restrained from attending upon B while she is hospitalised for treatment recommended by the specialist.

4. Exhibit Chambers 1 is to be attached to these orders.

Exhibit Chambers 1
Matters Relevant to Treatment of B, aged 4-1/2 years
Thank you for taking the time to examine my daughter, B, aged 4-1/2 years.
Since Sep 2016 B has spent 2-3 days per week in my care, including at least one overnight stay each week. My elderly mother, older sister and 5-year-old nephew also live with me and provide additional, loving family support to B when I am at work (with J Organisation).
B's Overall Health and Previous Medical Conditions
B is currently in good health. Indeed, she has enjoyed very good health throughout her life, with very few childhood illnesses. Her only ENT-related illnesses during her life have been:

• a single documented instance of croup and tonsillitis in February 2018;

• several middle ear infections (Otitis Media Effusion) over 4 years (see below); and

• food protein-induced allergic proctocolitis (resolved 2016);

B's Sleep
While in my care B invariably sleeps soundly and peacefully right through the night, from 7.30pm to 6.30-7:00am. She does not display any signs of sleep apnoea. She does not snore or snort, pause breathing or gasp for air. Occasionally she wakes briefly in the middle of the night to ask for a drink of water or a cuddle, after which she quickly settles back to sleep.
On the occasions that B has had a cold, with a blocked or snotty nose, her breathing becomes laboured overnight, but those symptoms generally disappear quickly with the end of the cold. Even on those occasions, however, she has slept soundly through the night, without waking.
B ordinarily wakes up happy and bubbly, ready to start the day. She rarely yawns, nor is she tired during the day. B has never complained to me of headaches.
B's School Performance and Physical Activities
B is attentive and well behaved at school and has had glowing reports. She enjoys learning, is developing well physically (upper 85% growth percentile) and intellectually, she has an impressive vocabulary for her age. She attends Italian language classes on weekends and is progressing well.
B is an active and social little girl. She is learning to swim, has done soccer joeys and relishes learning team sports. She delights in play dates with her friends at playgrounds and pools around Canberra. She has no problems hearing her teachers and sports coaches and follows directions very well.
B has missed only 2 and a half school days this year due to illness. Two consecutive days due to an ear infection, the other half day was not related to an ENT related illness.
Potential Allergies and Other Respiratory Diseases
B has a pet cat and cockatoo at my house, but she does not display any signs of allergies (or food intolerances) while in my care. B has never had asthma, bronchitis or any other paediatric Chronic Obstructive Pulmonary Disease.
Treatments for Otitis Media with Effusion (OME}
As previously stated, B has had several middle ear infections over the years and a ruptured ear drum. My research suggests that the insertion of grommets may assist, by allowing fluid to drain from her ears and ensure that pressure doesn't build up. I would also be interested to explore any non-surgical therapeutic options to assist with this and would appreciate your views about this.
Medical Risks of Tonsillectomy and Adenoidectomy
While B has enlarged tonsils, they have rarely been infected in her life and she sleeps well in my care.
In any case, research indicates that a child's tonsils begin to shrink from around the age of 5. I would appreciate your views about this.
As a scientist, I am aware of the current research concerning the very significant, long-term health risks following surgical removal of tonsils and adenoids as a child (e.g. global research led by Melbourne University, published June 2018*). I would therefore seek to review non-surgical therapeutic options for any diagnosed condition, prior to the consideration of tonsillectomy, adenoidectomy or adenotonsillectmy.
Mr Knill – J Organisation, Canberra

* Byars SG, et al, Association of Long-Term Risk of Respiratory, Allergic, and Infectious Diseases With Removal of Adenoids and Tonsils in Childhood, JAMA Otolaryngol Head Neck Surg. 2018 Jul 1;144(7):594-603. doi: 10.1001/jamaoto.2018.0614.

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

Ms Beckett

Applicant

And

Mr Knill

Respondent

REASONS FOR JUDGMENT

1. This is an interim dispute about mechanisms to provide for medical treatment for B who is four years old.  The interlocutory application about treatment comes in the context of there being current orders which set out mechanisms for treatment and in the context of the parties awaiting delivery of judgment following a final hearing which completed in December 2018. 

2. The dispute comes in the context of B having recently attended upon an Ear, Nose and Throat Specialist who recommended surgery in relation to B’s tonsils, adenoids and for grommets to be inserted.  That surgery has not taken place. 

3. Each now seeks orders to set out a regime for treatment either taking or not taking place.

4. The key head of power for the orders that was identified by the parties is s 64B of the Family Law Act 1975 (‘the Act’) which deals with the scope of parenting orders, and in particular, s 64B(2)(i) which says:

   any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

5. The parties implicitly say that orders for a regime for treatment fall within this description.

6. The dispute between the parties as to the treatment regime now appears to be reasonably narrow. 

7. They both agree that B should attend upon a specialist. While the Father asserted this should be a Dr M, he did not disagree with the Mother’s mechanism that the specialist should be on the referral of B's general practitioner.

8. They both agree that B should receive treatment in accordance with the recommendations of the Ear, Nose and Throat Specialist.  Although they expressed this in different ways in their Application and Response, the Mother accepted that the Father’s formulation (which had greater clarity) followed her suggested approach. The Father's expression was for the following of recommendations in the order of priority as identified by the specialist. 

9. The disagreement between the parties relates to the level of involvement of each of the parents.  The Father says they should both be involved in providing information to and attending upon that Ear, Nose and Throat Specialist.  The Mother says the Father should not be involved in this process.  The Independent Children's Lawyer says that the Father should be restrained from being involved in this process.

10. It should be observed that engagement with health experts has been a long-standing issue between the parties.  It featured as part of the final hearing.  In general terms, the Father alleges that the Mother provides wrong information and is aggressive to treating persons, while the Mother alleges that the Father is overbearing and aggressive in dealing with treaters.  That alleged dynamic has continued into the current dispute which involves whether or not B should undergo an operation to remove her tonsils, her adenoids and have grommets inserted into her ears.

11. The Orders of 21 December 2016 have current application.  They provide in relation to medical treatment 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 B’s health only.

    (b)In relation to attending upon a General Practitioner, B 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 B to the other parent and to record information given by the other parent regarding B onto B’s medical records.

    (d)Prior to attendance upon a medical practitioner for B 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 B together.

12. It may be observed that these Orders imply the need for the parties to consult with each other before a decision is taken.  There are obligations to pre-advise of attendances on medical practitioners.  The Mother has the final say in the event that an agreement is unable to be reached.

13. In this matter the Mother attended upon B’s general practitioner.  It does not appear that the Father was notified in advance of this attendance.  From there she received a referral to an Ear, Nose and Throat Specialist.  She advised the Father of that referral and her intention to make an appointment subject to him raising a reasonable objection.  He subsequently responded to the Mother in what could be reasonably taken to be aggressive terms opposing the taking of B for the consultation with the Ear, Nose and Throat Specialist.  The Mother took B in any event.

14. The Ear, Nose and Throat Specialist recommended that B undergo an operation which the Mother booked without consulting first with the Father.  In the Ear, Nose and Throat Specialist’s reporting letter to the general practitioner he made a number of factual assertions which were disputed by the Father.  The first is that B suffers from asthma.  The parties are in a common position that B does not suffer from asthma.  The Father appeared to attribute this to information that the Mother must have given to the Ear, Nose and Throat Specialist, an allegation that the Mother denied.  The Specialist also noted recurrent tonsillitis and difficulties in B's sleep.  These appear to be matters which were disputed by the Father despite there being records from B's general practitioner indicating that B had suffered from multiple occasions of tonsillitis and recording the Father as reporting some sleep disturbance on B's part to the general practitioner.

15. Interaction between the parties and the Ear, Nose and Throat Specialist ensued.  Each reports the Ear, Nose and Throat Specialist reporting to that party that the other party had behaved in an aggressive fashion towards the Ear, Nose and Throat Specialist.  Exhibit ICL1 at tab 1.4 contains correspondence sent by the Father to the Ear, Nose and Throat Specialist.  The first page and a half of that correspondence, in general terms, involved criticisms of the Mother, while almost two pages were, again in general terms, devoted to questions directed to the Ear, Nose and Throat Specialist, some of them repetitive and a number directed to the conduct of the Mother towards the Ear, Nose and Throat Specialist.  Shortly after this, it appears that the Ear, Nose and Throat Specialist terminated the treating relationship between himself and B.  It is less than clear why this was done, given the competing and currently unresolvable allegations between the parties as to each being aggressive towards the Ear, Nose and Throat Specialist.  The operation for B was cancelled.  The letter from the Father gives some cause to think that may have been a factor, but it is perhaps safer to conclude that the parental conflict was a likely cause of the Ear, Nose and Throat Specialist withdrawing.

16. I am, in the light of this history, now asked then to resolve what mechanisms should surround B receiving treatment from an Ear, Nose and Throat Specialist.  This is a matter to be determined within the particular restrictions of interim proceedings which preclude fact-finding in controversial matters, but require some assessment of risk in any event.  It is also to be determined on what is in B's best interests. 

17. B’s best interests are to be determined on application of the considerations contained at s 60CC of the Act. For the Mother the consideration that she submitted should bear the most weight is that contained at s 60CC(2)(b), being the need to protect B from neglect. That is a neglect in respect of receiving appropriate medical treatment caused by the conflict between the parties and the involvement of the Father in the process.

18. Although not identified explicitly, by implication the Father seeks that I take into account the issue of parental capacity as contained at s 60CC(3)(f) being the implication that the Mother lacks the capacity to provide accurate information to the Ear, Nose and Throat Specialist in the absence of involvement by the Father.

19. In the context of major agreement as to B receiving treatment as recommended by an Ear, Nose and Throat Specialist I am confronted with determining whether one or both parents will be involved in that process.  Given the history of the parties’ conflict, I accept the Independent Children’s Lawyer’s prediction that involvement of the Father as well as the Mother is likely to derail interactions with an Ear, Nose and Throat Specialist as has previously occurred.  Despite agreement to follow recommendations, the nature of the interactions that are likely to take place with that Ear, Nose and Throat Specialist are likely to involve an Ear, Nose and Throat Specialist being exposed to the conflict between the parties and undermine the giving of advice and treatment for B.  However, to only involve one parent deprives B of the checks and balances that each brings by bringing information regarding B to an Ear, Nose and Throat Specialist.

20. In an attempt to resolve, or rather to potentially resolve this, on the Father's indication that he could provide such information in a one-page document I invited him to prepare such a document and to circulate it to the parties.  I invited the parties to advise the Registrar of the Court whether objection was taken to the contents of such a document.  Such a document was provided, with the indication that the Mother and the Independent Children’s Lawyer did not object to it being forwarded to an Ear, Nose and Throat specialist tasked with treating B.  It was marked as Exhibit Chambers 1.

21. Given that the parties have agreed on a mechanism in the sense that they agree on following specialist advice, that there is a likelihood of the Ear, Nose and Throat Specialist’s processes being undermined by parental conflict if both are involved, and on the basis that the information provided by the Father provides a sufficient safeguard to any deficiency of information that might be provided by the Mother (without finding that she is likely to be deficient in the information that she provides), I propose to follow the general mandatory scheme that has been proposed by each of the parents, albeit without the Father's involvement.

22. This approach answers the Father's queries about parental capacity (by the Father authoring information that will be provided to the specialist) but more importantly answers the risk of neglect that was posed by the impasse created by the parental conflict.

23. This will enable the Mother to interact with, and arrange treatment for B in relation to her ear, nose and throat issues, without the Father.  However, authorising the Mother to obtain treatment in the manner generally agreed by the parties does not, by itself, remove the risk of the derailing of that process by involvement by the Father.  To achieve that end, injunctive relief, in general terms as sought by the Independent Children’s Lawyer, is an appropriate buttress to these Orders in ensuring that the Ear, Nose and Throat Specialist is not exposed to parental conflict.  I propose to make such injunctive orders.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 3 September 2019.

Associate: 

Date:  3 September 2019