L and B
[2004] FMCAfam 312
•25 June 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| L & B | [2004] FMCAfam 312 |
| FAMILY LAW – Mother’s application for child to receive a cochlear implant– father objects to operation based on ‘deaf culture’ (both parents are deaf) – post-operation therapy would reduce contact opportunities for the father – whether operation is in the best interests of the child – whether more conservative, less interventionist approach should be taken until the child can make an informed decision – earlier operation likely to be more successful – father unlikely to be supportive of post-operation therapy and rehabilitation – type of early education for the child – shared care and contact. |
Family Law Act 1975
Family Law Rules 2004
HG v R (1999) 197 CLR 414
Makita (Australia) Pty Ltd v Sprowles 52 NSWLR 70
| Applicant: | L |
| Respondent: | B |
| File No: | BRM 4617 of 2003 |
| Delivered on: | 25 June 2004 |
| Delivered at: | Brisbane |
| Hearing dates: | 16 & 17 June 2004 |
| Judgment of: | Baumann FM |
REPRESENTATION
| Counsel for the Applicant: | Ms Hogan |
| Solicitors for the Applicant: | Legal Aid Queensland |
| Counsel for the Respondent: | Mr Fleetwood |
| Solicitors for the Respondent: | Whitehead Payne Lawyers |
| Counsel for the Child Representative: | Mr Westbrook |
| Solicitors for the Child Representative: | Grant &Associates |
ORDERS
That the child D born 18 December 2002 reside with the mother.
That the child D receive a cochlear implant as soon as practicable.
That in the event the father’s permission or consent is required fir any treatment, therapies or rehabilitation associated with the cochlear implant, the Registrar of the Federal Magistrates Court of Australia at Brisbane be authorised to sign such consent or document in place of the father.
The mother have sole responsibility for all decisions relating to the receipt by D of a cochlear implant and the associated treatment, therapies, or rehabilitation including, but not limited to:-
(a)The identity of the medical practitioner who is to perform the operation;
(b)The members of the surgical team to be involved in the operation during which D will receive the implant; and
(c)The institution or organisation from which D will receive post-implant therapy and treatment up to the commencement of Grade 1 in the Queensland education system.
That each parent be responsible for D’s day to day care, welfare and development whilst he is in that parent’s care.
Save as ordered in paragraph (4) above, the parents be jointly responsible for D’s long term care, welfare and development.
That the father refrain from using illegal drugs and consuming alcohol to excess whilst D is in his care.
Any school which the child attends is hereby authorised to provide to both parents any information in respect of the child’s attendance, health, progress and performance, behaviour and any issues whatsoever, including but not limited to school reports, notification of school events and the availability of school photographs.
Both parents keep the other informed of the name and contact details of any general medical practitioner or medical specialist upon whom the child attends.
Any general medical practitioner or medical specialist upon whom the child attends is hereby authorised to provide to both parents details of the child’s attendance upon that person, including but not limited to details of proposed treatment and treatment options.
Both parents keep the other informed of any medical emergency, accident or serious illness suffered by the child whilst he is residing with that parent and keep the other informed of any associated medical treatment.
Each party, within seven (7) days of any change to the same, keep the other informed as to any change in address or telephone number.
Each party have liberty to apply in respect of the orders for contact at the expiration of no less than 12 months from the date of making these orders.
THE COURT ORDERS on an interim basis pending further order:
D have contact to the father as agreed between the parties, but failing agreement, as follows:-
(a)From 9.00am to 4.00pm each Saturday;
(b)From 9.00am to 4.00pm on Father’s Day of each year;
(c)From 9.00am to 4.00pm on Christmas Day in 2005 and each alternate year thereafter; and
(d)From 12.00 noon to 4.00pm on D’s birthday in 2004.
The father shall collect D from the mother’s residence at the commencement of contact and return him to the mother’s residence at the conclusion of contact.
The matter be adjourned for further mention to consider any further expansion of the father’s contact at 9.30am on 6 June 2004 at the Federal Magistrates Court of Australia at Brisbane.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRM 4671 of 2003
| L |
Applicant
And
| B |
Respondent
REASONS FOR JUDGMENT
Introduction
D is the only child of a short relationship between the applicant mother L and the respondent father B.
D is 18 months old and profoundly deaf. He suffers from Waardenburg’s Syndrome. He has lived with his mother predominantly since separation in May 2003, with the father exercising contact in accordance with the orders of this Court, now being 3 days a week between 9.00am and 4.00pm.
Apart from the natural tensions which co-parenting a young child creates, including the father’s desire for a “week about” shared parenting regime (or at least overnight contact), the parents have been polarised by a dispute as to whether D should receive a cochlear implant. This issue shapes a number of other parenting issues before me.
I should at this point acknowledge the assistance I have received in this difficult matter from the experienced Counsel who appeared before me, Ms Hogan for the mother, Mr Fleetwood for the father and Mr Westbrook for the child representative Mr Grant.
They dealt sensitively with the parents in cross examination, made a little more difficult, but expertly managed by the 4 sign interpreters who assisted the Court and the parties. I also had the benefit of written submissions prepared urgently by all Counsel. I have given them all serious consideration.
These reasons are not as extensive as they might otherwise have been because of the asserted importance for D of having an implant urgently. A decision will, if favourable to the mother’s case, be the catalyst for surgery almost immediately.
Principles
The orders I am asked to make are a mixture of residence, contact and specific issues orders – all parenting orders under the Family Law Act 1975 in which my discretion is shaped by the objects set out in section 60B and the need to ensure that the best interests of D is the paramount consideration. In determining the best interests of the child the relevant factors set out in section 68F(2) must also be considered.
Counsel for the Child Representative, in his submissions says that this application is not a medical procedure which falls within that special category contemplated by Division 4.2.3 of the Family Law Rules 2004. That division is to be applied in this Court as a a result of Schedule 3 Part 1 of the Federal Magistrates Court Rules 2001 (as amended).
A medical procedure application is defined in the Family Law Rules as:-
“…an application for final orders (Form 1) seeking an order authorising a major medical procedure for a child that is not for the purpose of treating a bodily malfunction or disease.”
I have formed the view that the application by the mother for the surgical implant of a cochlear device for D whilst a “major medical procedure” is designed to treat a “bodily malfunction” – namely the child’s deafness.
By finding this to be the legal effect of the words, I do not seek to offend the strongly held view of the father that D has no “malfunction” requiring treatment.
As a result, Rule 4.10 which requires service upon the prescribed child welfare authority, does not apply. I am in any event satisfied that the required evidence under Rule 4.09 has been offered to the Court.
The mother’s circumstances and proposals
The mother says she has been profoundly deaf since birth and with her hearing aids she has 10% hearing. She says:-
“I have experienced first hand the difficulties and frustrations of being deaf in a hearing community. I have difficulty communicating with hearing people, difficulty making myself understood at times even though in the deaf community I am considered to have a high level of speech. I am fully aware of the fact that D will always have to move in both deaf and hearing communities as both his father and myself are deaf. I would wish for D to also be able to move freely in the hearing community and be able to experience the opportunities I have not have (sic)for learning and communication. I feel that it is in D’s best interest to have the surgery now and should he as an adult choose not to use the implant he can at least make an informed choice of what he wants to do.”
The mother resides with her parents, both of whom are not deaf. Her father is employed full time and her mother is generally available all day to provide emotional and physical support.
I am satisfied the mother understands that it is imperative that D also learn to sign. I noticed in Court that although it appeared the mother could effectively lip read, she relied substantially on the sign interpreters provided to the Court. The mother says that 90% of her friends are deaf and she communicates with them by signing.
Consistent with the mother’s desire since D’s birth for him to have a cochlear implant, she has made appropriate inquiries in respect to both the surgery and the audio-verbal education/therapy that is required to support D after surgery. The mother proposes herself to have a cochlear implant this year.
D is familiar with the people, particularly Ms W (a teacher at the educational facility proposed by the mother), at the educational facility proposed by the mother (hereafter referred to as “the School”). This centre specialises in providing auditory-verbal early intervention for hearing impaired children. D has been attending there weekly since April 2003.
The mother has complied with all orders of the court which provide for contact 3 days a week. She says she understands the benefits to D of maintaining a strong bond with the father and she says she encourages it and promotes it.
The mother gave evidence and demonstrated her capacity to lip read, sign and speak.
The father’s circumstances and proposals
The father has been profoundly deaf since birth, and he also suffers from Waardenburg’s Syndrome, as do a number of his siblings. Although he has emotional and physical support from his father and step-mother, he resides independently on the Gold Coast. The contact he currently exercises to D requires the father to travel to and from Brisbane up to three days a week. He has recently decided to move into new accommodation in the Gold Coast area and has, it seems, no present intention of moving closer to where D currently lives.
The father said he contemplated an implant for himself many years ago, but decided not to proceed with the surgery. Although he did consent to an order in September 2003 which permitted the surgery, his position at the hearing is best summarised by paragraph 16 of his affidavit filed on 11 March 2004, which says:-
“16.Some of the factors that I have considered and been made aware of since the Orders made in September 2003 and resulting from my attending all meetings in Brisbane with the surgeon, the speech therapist and associated audiology meetings plus a presentation on Cochlear Implants at the Deaf Society Discovery Club are as follows:
(a)Firstly I believe the Cochlear Implants are still an immature technology about which the public generally has unrealistic expectations. It is as if hearing people believe that the procedure will allow a deaf person to hear again. In fact this is not necessarily the case. The results are variable and the baby has to have many years of intensive therapies following the operation with no guarantee as to the outcomes. In addition the child would have to hear clear concise speech in order to learn to speak and I note in this regard that both of D’s parents are deaf and while his mother can speak her speech is not clear and concise.
(b)There is also the issue of complications arising from an operation.
(c)The Mater Hospital in Brisbane has never fitted Cochlear Implants to a child both of whose parents are deaf.
(d)As I said in my first affidavit sworn 8 September 2003, I am a deaf person who does not see deafness as a disability. I am part of a deaf culture which does not accept that there is a disability which has to be fixed by operation and it is for this reason that I am opposed to the procedure. I believe that my son can grow into a happy and independent adult through learning sign and other means of progressing in his world that deaf culture will make available to him.
(e)The operation will have the effect of limiting D’s contact with both his parents as he will need to be at the Hospital nearly every day or at speech therapy classes for many years to come.”
The father says that his parents have recently provided him with new hearing aids (worth some $8,000), which have significantly improved his aural awareness. He says he is amazed how effective these state of the art devices are – he can now hear D laugh, dogs barking and trucks approaching. In his affidavit, the father says that with these hearing aids, he no longer needs to rely “on external aids such as flashing lights to alert me” to D’s whereabouts and needs. When asked in cross-examination how he would be aware if he was sleeping, that D needed him – he said he relied on “flashing” alarms he has in his home. I deal with this concern of the mother later in these reasons.
The father relied upon the support of witness RW, a full time community worker for the Queensland Deaf Society. Mr RW, who was not required for cross-examination, strongly believes in deaf persons identifying with the “deaf culture”, and suggests that after being fitted with hearing aids or cochlear implant hearing-impaired children “often do not receive enough support and information to cope with their deafness”, and he supports the view where “culturally deaf children (children who identify with the deaf community) are automatically placed in schools that have deaf units where all their needs are usually met”.
The father denies that he drinks to excess or still uses marijuana. He denies he is aggressive towards the mother.
He seeks a shared care arrangement (week about) which he believes should be graduated to enable D the best opportunity to share in the father’s unique skills and attributes.
It seems the father has always been actively involved in sports, including rugby, cricket, soccer, motor bikes and water skiing. It is clear that one of the father’s concerns about D having a cochlear implant, is the accepted restrictions which flow in contact sports and other pursuits similar to those which have been enjoyed by the father.
Overall, however, I formed the clear view from the evidence and how the cases were presented, that the parents’ different views about how D should be raised as a deaf child in a hearing world, lies at the heart of this dispute.
Medical evidence
The medical evidence offered to the Court was unchallenged and of high quality. The father did not call any medical evidence, other than that of the Speech Therapist Audiologist Mr Ronald Morris and Audiologist Sharon Ewing. I shall deal with their evidence later in these reasons.
The medical specialists all rely on the results of testing conducted by audiologists and speech pathologists. The evidence of the results of testing by speech pathologist Sue Hodgman and Paediatric Audiologist Karen McGhie was not challenged.
The medical evidence consisted of:-
(a)Dr Bruce Black, a Doctor since 1970 who is a specialist in diseases of the ear and associated Paediatric Otolaryngology, and holds the position of clinical Professor in Otolarynology at the University of Queensland. His CV reveals extensive writings in his area of speciality. His evidence made it clear, that he is a strong proponent of the use of cochlear implants and is a Director of the Hear & Say Centre for Deaf Children. He has performed approximately 200 cochlear implants, of which 70-80 were for children under 5.
(b)Dr Anthony Parker, a Doctor since 1984 and currently Chairman of the Mater Hospital Otolaryngology Head and Neck Surgery Unit and the Hospital’s Auditory Rehabilitation & Cochlear Implant Service, has examined D on a number of occasions. He has performed approximately 180 implants.
(c)Professor William Gibson, a Doctor for nearly 40 years, is a Director of the Cochlear Implant Centre of New South Wales and Professor of Otolaryngology at the University of Sydney. He is also the Head of Department of the Royal Prince Alfred Hospital and has written extensively on his speciality and lectured internationally.
The medical evidence is that D is a suitable recipient for a cochlear implant and that it should be performed before the child is 2 to 2½ years old – the earlier the better for him. Certainly, if as proposed by the mother the surgery occurs now, it presents D with the optimal opportunity to derive the maximum benefits from the surgery and resultant post surgery therapy.
There are identified risks associated with the surgery which are statistically speaking, minor. All the medical evidence supports a finding that, with appropriate therapy, the prospects of a successful outcome for D are excellent.
All three speech therapists conceded the circumstances of this case are unusual, with D having a profoundly deaf father (who only communicates by sign) and a deaf mother who uses a combination of techniques to communicate.
I agree with the submission of the mother that the effect of the medical evidence is that it is in D’s best interest that he receive an implant as soon as practicable so as to maximise his ability:-
(a)To be bilingual (using verbal as well as signing skills);
(b)To have a normal sounding voice and not a “deaf sounding” voice;
(c)To achieve educationally in the future; and
(d)To interact in the predominantly hearing world in which he lives.
Certainly Dr Parker and Professor Gibson happily conceded the importance for D to be able to sign. This is not only to ensure effective communication with his father, but also the wider deaf community, of which he is a member. Dr Gibson particularly in his Report speaks of the alienation cochlear implantees can suffer in some parts of the deaf community. I take these observations into account.
It was clear that Professor Black, as a Director of the Hear & Say Centre, supports the policy of discouraging the use of signing for children who have a cochlear implant. From the whole of Professor Black’s evidence, it is clear that he regards it as critical that the child’s audio-verbal skills be developed at a young age, if possible. I would, in this case, be concerned if the views of the probable surgeon for D was capable of excluding him being exposed to learning sign as part of his range of communication techniques. The evidence of Ms W and particularly the mother gave me some comfort that an exclusionary approach would not be adopted.
Evidence of the deaf culture
It was clear to me that the unusual circumstances of this case created a fertile environment for the advocates of what appears to be a live issue in the deaf community to have their say.
As Professor Gibson observed:-
“Deaf people have developed their own method of communicating using sign. To many deaf people, speech is unnecessary as they feel they can achieve everything they wish using sign. Sign has become a normal means of communication for them and they have developed their own deaf culture or society. Many deaf people feel that a cochlear implant is an attempt by hearing people to make deaf people into hearing people taking them away from their own deaf culture.”
The witnesses called by the father, Ms Ewing and Mr Morris and the witnesses called by the mother, Ms McGhie, Ms Hodgman and Mr Lassig, all have formal qualifications in either audiology and/or speech pathology. They all venture, in my view at times, into areas of expert opinion which are outside their areas of expertise.
In particular, where Ms Ewing asserts, contrary to the clear medical evidence, that D is not an appropriate candidate for a cochlear implant at this time. I prefer the evidence of the medical specialists. The balance of her report dated 15 June 2004 was objected to by Counsel for the mother, as being opinion and speculative.
To be fair, similar criticisms of much of the reports of Morris, Hodgman and Lassig could be raised.
All these witnesses, along with Ms Ewing, are clearly passionate about the area in which they work on a daily basis. They have strong views about the overall benefits of a “deaf culture” or not. Although reliance on research is identified by Ms Ewing, I have formed the view that I cannot attach any significant weight in this matter to the opinions of the expert Audiologists and Speech Pathologists where they chose to venture into the realm of the advantages and disadvantages of a bilingual – bicultural intervention approach for deaf children and their families. In my view the opinions expressed that are outside and not based on the specialist expert knowledge of these witnesses, could be characterised as Gleeson CJ did in HG v R (1999) 197 CLR 414 as:-
“a combination of speculation, inference, personal and second-hand views”.
(see also the remarks of Heydon J in Makita (Australia) Pty Ltd v Sprowles 52 NSWLR 705)
Family Report
A very extensive family report from Psychologist Denise Britton arising from interviews conducted on 26 May 2004 was in evidence. Ms Britton was not required for cross examination. I do not propose to incorporate significant portions of the 30 page report in these reasons other than to note, in summary form, Ms Britton says:-
(a)D is a delightful, contented and physically well nurtured little boy who is clearly attached to both parents.
(b)D should continue to reside with the mother. Shared care is definitely not an option in light of the complexities associated with D’s deafness and the distance between the parent’s residences.
(c)The level of contact to the father (which will also give him another environment to practise signing) must be maintained but will be shaped by his need for therapy and education, if the implant occurs.
(d)“My views of the father and his family is that they will not encourage talking since they are of the philosophical position that to do so is to be ashamed of D’s deafness (and implicitly the deafness of the father and his siblings) and to treat him as if he is defective or as if he is a robot of some sort.”
Importantly, Ms Britton had the opportunity to not only see D but also to discuss the issues with the paternal grandfather BF, and the paternal step-grandmother BL. The father chose not to adduce any evidence before me from these persons.
Schooling
As the child representative observed, it is unusual to be asked to address the topic of schooling in relation to an 18 month old child.
Although the father, in his case outline, sought a specific order that D attend the Yeerongpilly Special Education Development Unit, where, it is alleged, a more inclusive bilingual approach is adopted, the father chose not to offer any direct evidence from teachers at the school. His Counsel Mr Fleetwood tried creatively, through the cross examination of Dr Parker and Ms W to do so, but their knowledge of the program was limited.
The mother however offered through Ms W, evidence of the type of education support and therapy in the audio-vocal area which the School can provide to D. I regarded Ms W as an impressive witness, clearly devoted to her program, but well and sensitively aware of the need that D be able to sign effectively. Ms W is not herself an effective signer, but she demonstrated to me an understanding of the wider context of D’s personal needs. She has met the father and would encourage some appropriate involvement by him in D’s early education at the School. The evidence establishes that if D has the cochlear implant, he immediately needs to attend for “MAPping”. This was explained by Professor Black as the process by which the 24 electrodes, attached to the 8th nerve, are tuned and adjusted so that the ear can hear the low and high frequency sounds without discomfort to the patient.
In her report Ms W gave the following indicative regime, which may vary slightly from child to child:-
(a)Weekly visits for MAPping for the first few months, then fortnightly visits decreasing until children who are at school age are usually required for a MAPping appointment once every 6 months;
(b)An additional weekly visit for educational support lasting about 1½ hours, which continues until the child is 5 or 6;
(c)At 5 or 6, they would graduate from the program and move on to Year 1 of a “regular” school where hearing impaired children usually receive special support.
Ms W, as well as Dr Parker, made it clear that a commitment to the program is critical and this includes significant further “at home” support to emphasise what the child learns at school. Dr Parker said he would be disappointed if, long term, the child was unable to speak on the telephone with quite a “normal” sounding voice.
Discussion
In this discussion, I am mindful of the need to consider the relevant section 68F(2) factors. I chose to do so in a less sequential way than might often be my approach.
I am of the view, on the whole of the evidence, that it is in the best interests of D that he have the opportunity to receive the cochlear implant immediately. I do not accept as persuasive the contrary more conservative view expressed by Ms Ewing.
Whilst I acknowledge the father’s expressed views about D remaining “As he is – as God created him”, I am persuaded that the mother’s more inclusive approach should be preferred. Their seems to be a real risk that if the implant does not proceed then any later implant (subject of course to improvements and developments in technology) is unlikely to offer the same levels of successful hearing.
The implant offers D the best of the two worlds in which he is a happy member. The father and his family would not alienate him and would use their best endeavours to ensure alienation in the wider deaf community does not occur.
The final submissions of the mother seek orders which prevent the father’s opposition to the implant from gaining any practical effect. I support those orders. The father’s earlier consent (with the benefit of independent legal advice) to the implant was withdrawn, in my view, unreasonably. The father’s understanding of the issues of the maintenance of a deaf culture have not changed since September 2003. I find in fact, his failure to comply with the order stems from other issues, not associated with the best interests of the child. He referred to a change of view occurring after the domestic violence proceedings were commenced, for example.
Also the careful and thorough way in which the mother has investigated and activated surgical options and identified appropriate post implant therapy give me every confidence the mother is firmly entrenched in ensuring that D has the optimal opportunity for maximising the recognised benefits of the implant.
For these reasons, on the evidence, the mother should be permitted solely to decide both the surgeon and the child’s school/educational institutions to Year 1.
I agree with Ms Britton that shared care is not an option. I was concerned by the father’s evidence about whether he is prepared to support the post implant need for D to be stimulated by voices and sounds (either hearing or overhearing). His remarks that if D wishes not to use the implant he would allow that to occur, present as an obstacle to the full benefits of the audio-verbal program.
I find that it is in the best interests of the child to live with the mother.
I was a little mystified why the father chose to live independently at Nerang, for if he chose to live closer, in the Brisbane area, then opportunities for more frequent perhaps shorter contact could be considered, which would easily fit around the therapy needs for D.
Also the father’s capacity to attend the School and to perhaps even consider some more formal signing classes (as an adjunct to the primary audio-verbal program) would improve.
I am satisfied on the evidence that the current regime of contact, being 3 days a week, if it were to continue is likely to reduce the effectiveness of the required audio-verbal training for D, both at the School and, importantly, the supportive household of the mother. Clearly the mother, who herself will be having therapy post her cochlear implant, will draw on the assistance of her own parents with whom she lives.
I indicated at the closure of the evidence that this is a case where predicting the effect of longer term orders is particularly difficult. Much will depend on the surgery and the initial MAPping. Also the father’s attitude to and support for his son and the extent to shich he seeks to become involved in his audio-verbal development are all likely to shape the form of future care arrangements.
I express some concerns, in this regard, that the father expects the School to provide an interpreter for any visits he makes to the school. That is, in my view, an unreasonable demand where the institution provides its quality service free of charge and reflects a poor attitude of the father, in my view.
I am concerned that a reduction to weekly day contact could affect the important bond which has been established between the father and D. The father’s wider family also are important to D’s sense of identity and security. His psychological wellness is important.
On balance I am persuaded that a prescribed weekly day contact is appropriate for the next 12 months. I propose to make an interim order in that regard. My concerns about extending in the next 12 months to overnight contact arise from a combination of:-
(a)The need to maintain the intensity of the audio-verbal learning environment;
(b)Some doubts about whether the father would
–support the thrust of the post implant surgery; and
–has the capacity to be alert to risks to the child which might arise when he is sleeping.
In the absence of any evidence about a formal signing educational venue or program, it seems the child’s exposure to, and learning of, signing will arise in the father’s household and to a lesser extent in the mother’s household. D’s signing would improve if he had more time with the father, however I am prepared over the next 12 months for that development to be reduced for the greater benefits to D of using this critical time to develop his other skills.
Ultimately the best interests of the child are served by giving him the necessary foundations at this early developmental stage of his life, upon which he can build the skills, strengths and understanding to reach his potential as an adult.
I can not hope to fully understand, as a hearing person, all that the parties and D have to face every day from their perspective. The decision which I have made does not give validity, as a superior approach or view, to either of the sides in the “deaf culture” debate which engulfs that community. It is more basic than that issue.
The orders I pronounce (which are set out at the commencement of these reasons) represent what is in the best interests of the child, on the evidence at this time, and that is the paramount consideration.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate:
Date: