KNOWLES & GREEN

[2011] FamCA 265

FAMILY COURT OF AUSTRALIA

KNOWLES & GREEN [2011] FamCA 265

FAMILY LAW - CHILDREN - Best interests – suspension of order for the child to spend time with the father – health concern of the child

Family Law Act 1975 (Cth)

APPLICANT: Ms Knowles

RESPONDENT: Mr Green

FILE NUMBER: MLC 1172 of 2007

DATE DELIVERED: 14 April 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 14 April 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: Not Applicable

COUNSEL FOR THE RESPONDENT: Ex parte

SOLICITOR FOR THE RESPONDENT: Not Applicable

IT IS ORDERED THAT

1. Until further order and to give full force and effect to the applicant’s duty and responsibility to make all decisions with respect to the health of the child X born … June 2000 pursuant to paragraph 1 (b) of the order made on 15 April 2009, all orders pursuant to which the respondent spends time and communicates with the said child be and are hereby suspended.

2. The applicant personally serve a sealed copy of this order, together with sealed copies of her application and affidavit in support both filed this day, on the respondent personally as soon as practicable.

3. Forthwith upon service in accordance with paragraph 2 hereof the respondent deliver the said child into the care of the applicant and thereafter not seek to spend any time or communicate with the child without the written consent of the applicant first had and obtained or order of the Court.

4. The said application be otherwise adjourned for further hearing before Justice Mushin in the Melbourne Registry of the Court at 10:00 on Monday 18^th April 2011.

5. Both parties attend the said adjourned hearing either with or without legal representation.

6. The engrossment of this order be expedited forthwith by the Court.

7. General liberty be reserved to both parties to apply on short notice.

8. All questions of costs be reserved.

9. Pursuant to s 62B and s 65DA of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled ‘Parenting orders – obligations, consequences and who can help’ a copy of which is annexed to these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1172 of 2007

Ms Knowles

Applicant

And

Mr Green

Respondent

REASONS FOR JUDGMENT

1. On 15 April 2009, I delivered reasons for judgment and made orders as a result of a defended hearing between the parties which took 16 Court days.  One of the fundamental issues which was raised during those proceedings was the question of the health of the older child, X, who was born on 14 June 2000 and is presently aged 10 years.  The orders included the granting of the sole duty and responsibility to the present applicant, that is X’s mother, to make all decisions with respect to choice of medical and other like practitioners and treatment and therapy.

2. I also ordered that the present respondent, that is X’s father, have substantial and significant time with him which included periods of one-half of the first and third term school holidays to be agreed between the parties and failing agreement, the first half.  Pursuant to that later order, X, together with his sister, Y, born in July 2003, are presently spending time with their father.

3. By application made today, the mother, to whom I will refer as “the applicant”, seeks orders for the suspension of the relevant paragraph of the orders for X to spend time with his father, such suspension to be on a temporary basis, for the purpose of allowing the applicant to attend with X upon any hospital emergency department or, alternatively, for the purpose of any medical appointment or hospital admission for X.  For that purpose the applicant seeks an authorisation of the Court to collect X from the respondent.

4. By affidavit sworn today, which is evidence before me, I am satisfied that an issue with regard to X’s health has arisen within the contemplation of the orders pursuant to which the applicant has the sole duty and responsibility of making all decisions. The affidavit has exhibited to it by annexure B a letter from the specialist referred to in my reasons for judgment, Dr S, with regard to an EEG administered to X on Friday, 8 April “because of concerns that he was very confused at school, making silly mistakes, not as organised and coherent”.

5. Dr S expressed the view that the result of that EEG was “very concerning”.  He rang the applicant that afternoon and noted that, I think while X was at Hospital 1, he had another seizure.  Dr S was, and clearly has been, most concerned about X’s health and his relationship with the respondent was a major issue in the proceedings.  In particular, I found that the relationship between the respondent and Dr S had broken down as a result of the respondent’s actions.  That was part of the basis on which I gave the applicant the sole duty and responsibility with regard to decisions concerning X’s health.

6. The applicant’s affidavit also satisfies me that the respondent has raised the issue of what dosage of the relevant drug should be administered to X.  The respondent has no right pursuant to the order of the Court to make such decision.  That is the sole duty and responsibility of the applicant.  The affidavit also details and annexes significant correspondence by way of email between the parties, pursuant to which the respondent at least minimises the significance of X’s health issues as they are immediately manifested, and refuses, at least notionally, to accord to the applicant her rights and responsibilities which the Court granted her in the orders to which I have referred.

7. At about 3.15 pm yesterday, the applicant spoke to Dr H, a paediatric neurologist at Hospital 2 and reported to him that X had had a seizure earlier in the day and that she had been informed by the respondent that X “was having hallucinations”.  Understandably, Dr H said that he was not able to provide advice with regard to any potential cause, either as to dosage, medication or like matter, without consulting with X and examining him.  There was a possibility that X would have to be admitted to hospital as an inpatient.

8. As a result, the applicant secured an appointment for X to see Dr H at 4 pm today.  I am satisfied on all of the evidence that the respondent is refusing to cooperate with the applicant in that appointment.  By sworn evidence given in Court a short while ago, the applicant has satisfied me that the respondent is aware that she is making this application.  While he does not appear to have specifically refused to cooperate with the Court, he certainly has not indicated his preparedness to cooperate.  He has not appeared today, and in light of the urgency of this matter, and particularly the appointment for 4 pm today, and the potential for X to be admitted as an inpatient to hospital, I regard the matter as sufficiently urgent to proceed on the basis which I have done.

9. To the extent that the applicant’s duties and responsibility with respect to decisions for X’s health might conflict with the order entitling the respondent to spend time with X at this time, I find that it is in the best interests of X that the order whereby he spend time with his father be suspended.  That is not just in respect of the present holiday time but will be all orders with respect to spending time.  The matter can then return to Court and I will hear any evidence and submission to be advanced by or on behalf of either party to further consider X’s best interests.  I express my great concern at the attitude taken by the respondent and in particular his attitude towards X’s best interests.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin delivered on 14 April 2011.

Associate: 

Date:  15 April 2011