L and B - [2004] FMCAfam 312

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:

Respondent:

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading L and B

Details

AGLC: L and B [2004] FMCAfam 312
Case: [2004] FMCAfam 312
Decision Date: 25 June 2004

CaseChat Overview and Summary

L and B involved a dispute between the parents of a child born in 2002, concerning the child's residence, medical treatment, and contact arrangements. The matter was heard in the Federal Magistrates Court of Australia at Brisbane. The primary legal issues before the court were the determination of the child's residence, the necessity for the child to receive a cochlear implant, and the allocation of parental responsibilities concerning the child's medical care and contact with the non-residential parent.

The court deliberated on the best interests of the child, considering the mother's recommendation for the child to receive a cochlear implant and the father's concerns about the potential impact of the implant on the child's life. The court concluded that the cochlear implant was in the child's best interest and ordered its immediate implementation. The court also determined that the mother should have sole responsibility for decisions related to the implant, including the choice of medical practitioners and institutions for post-implant therapy. The court further outlined joint parental responsibilities for the child's overall care and development, while assigning specific duties to each parent. The court emphasised the importance of both parents refraining from activities that could negatively affect the child's welfare.

The court issued several orders to facilitate the child's welfare and maintain communication between the parents. The child was to reside with the mother, and the father was granted specific contact times. The court also authorised the Registrar to provide consent for the cochlear implant if the father's permission was not forthcoming. Additionally, the court mandated that both parents keep each other informed of any changes in contact details, medical appointments, and emergencies involving the child. The matter was adjourned to allow for further consideration of the father's contact arrangements at a later date.

Orders

Orders of the court

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.

10.

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.

11.

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.

12.

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.

13.

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:

14.

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;

(d) From 12.00 noon to 4.00pm on D’s birthday in 2004.

15.

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.

16.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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