L and L - [2007] FMCAfam 434

FEDERAL MAGISTRATES COURT OF AUSTRALIA

L & L

[2007] FMCAfam 434

FAMILY LAW – Parenting – child with special needs – equal shared parental responsibility – interim orders.

Family Law Act 1975 (Cth), ss.60CC, 61DA,65DAA

Goode & Goode [2006] FamCA1346
R & R [2007] FMCAfam 29

Applicant:

Respondent:

File Number:

SYC 3103 of 2007

Judgment of:

Pascoe CFM

Hearing date:

20 June 2007

Date of Last Submission:

20 June 2007

Delivered at:

Sydney (in chambers)

Delivered on:

3 July 2007

REPRESENTATION

Counsel for the Applicant:

Ms Harris

Solicitors for the Applicant:

Willis & Bowring

Counsel for the Respondent:

Mr Coates

Solicitors for the Respondent:

Watkins Tapsell

THE COURT ORDERS PENDING FURTHER ORDER THAT:

The children, C, born 2002 and J born 2003 live with the mother.
The parties have equal shared parental responsibility for the children.
The father spend time with the children as follows:
(a)From 14 July 2007 for a period of two months, the children spend time with the father as follows:
(i)Each Wednesday from 1.00pm until 5.00pm, the father to collect and drop the children at the mother’s house.
(ii)Every alternative Saturday beginning 14 July 2007 from 10.00am to 5.00pm, the father to collect and drop the children at the mother’s house.
(iii)By telephone as agreed between the parties, or otherwise each Tuesday and Thursday night between 5.00pm and 6.00pm, with the father to initiate the call.
(b)That at the conclusion of the two month period, and until
1 February 2008, the father to spend time with the children as follows:
(i)Each Wednesday from 1pm until 6.00pm, the father to collect and drop the children off at the mother’s house.
(ii)Each alternative weekend from 4.00pm Friday afternoon until 5.00pm Sunday, the father to collect and drop the children off at the mother’s house.
(iii)By telephone as agreed between the parties, or otherwise each Tuesday and Thursday night between 5.00pm and 6.00pm, with the father to initiate the call.
(iv)On Father’s Day, if the children are not otherwise spending time with their father, from 9.00am until 7.00pm, with the father to collect and drop the children off at the mother’s house.
(v)At Christmas from 3.00pm Christmas Day until 3.00pm Boxing Day with the father to collect and drop the children off at the mother’s house.
(vi)From 2.00pm until 6.00pm on either child’s birthday, if the children are not otherwise spending time with their father, the father to collect and drop the children off at the mother’s house.
(vii)From 9.00am until 7.00pm on the father’s birthday, if it falls on a day when the children are not spending time with him, the father to collect and drop the children off at the mother’s house.
(c)From 1 February 2008, the father to spend time with the children as follows:
(i)Each Wednesday afternoon from after school until before school Thursday morning, the father to collect and drop C off at school and to collect and drop J from pre-school, or failing that the mother’s house.
(ii)Each alternative weekend from after school Friday until before school Monday, the father to collect and drop C off at school, and to collect and drop J from pre-school, or failing that the mother’s house.
(iii)By telephone as agreed between the parties, or otherwise each Tuesday and Thursday night between 5.00pm and 6.00pm, with the father to initiate the call.
(iv)Half of the school holiday period. The father to have the children for the first half of the school holidays in even years, and the second half in odd numbered years.
(v)At Christmas from 3.00pm Christmas Day until 3.00pm Boxing Day with the father to collect and drop the children off at the mother’s house.
(vi)From 2.00pm until 6.00pm on either child’s birthday, if the children are not otherwise spending time with their father, the father to collect and drop the children off at the mother’s house.
(vii)From 9.00am until 7.00pm on the father’s birthday, if it falls on a day when the children are not spending time with him, the father to collect and drop the children off at the mother’s house.
(viii)From 10.00am Good Friday until 10.00am Easter Sunday in years ending with odd numbers, and from 10.00am Easter Sunday until 7.00pm Easter Monday in years ending with even numbers.
That the children spend the following additional time with the mother:
(a)On Mother’s Day, if they are not otherwise with their mother on that day from 9.00am until 7.00pm.
(b)On the children’s birthdays, if they are not otherwise spending time with her for a period of three hours as agreed between the parties, or otherwise between 9.00am and 12.00pm.
(c)On the mother’s birthday, if they are not otherwise spending time with the mother from 9.00am until 7.00pm.
Each party to notify each other of any medical issues in relation to either child and of any medical appointments that the children are required to attend. Both parties are free to attend such medical appointments. The parents shall advise each other of such appointments within 24 hours of such appointment being made.
In the event of a medical emergency involving either child, the parent with whom the child is spending time must immediately seek medical attention for the child, and as soon is practical contact the other parent to advise him/her of the full details of the medical emergency.
Each party has a right to view any pre-school or school reports relating to the children, and to attend any pre-school or school activities and interviews.
Neither party is to denigrate the other or to discuss these proceedings in the presence or hearing of the children.
That pursuant to s.62G(2) of the Family Law Act1975 the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of this Court on a date and at times to be advised for the purposes of the preparation of a Family Report addressing the issues identified in s.60CC of the Act. The parties are to send copies of all of their court documents to the family report writer within 3 days of being requested to do so by the family report writer.
Pursuant to s.68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed and the Legal Aid Commission of NSW is requested to provide such representation. The parties are to provide to the Legal Aid Commission, of NSW, PO Box K847 HAYMARKET forthwith all documents thus far filed in these proceedings by the party together with all existing orders and copies of any relevant reports.
The matter be adjourned to 27 September 2007 at 9.30am for mention.
That pursuant to s.65DA(2) of the Family Law Act1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 3103 of 2007

Applicant

And

Respondent

REASONS FOR JUDGMENT

This is an application for interim parenting orders. Before me are two competing parenting arrangements for C, born 2002 and J, born 2003 (“the children”).
The parties commenced cohabitation in 1996 and were married in October 1999. The parties separated in early February 2007, and since this time the children have lived with the mother. The mother’s affidavit dated 6 June 2007 also refers to a period of separation of approximately four months between April 2005 and July 2005. This separation is said to have been as a result of a violent incident between the parties.
The Applicant father, in his amended application filed 24 May 2007, sought orders that the children live with the mother, and that the parents have equal shared responsibility in relation to the children. In addition, the father sought time with the children as follows:
(a)Each alternative weekend from after pre-school on Thursday until Monday morning at 9am.
(b)Each other Wednesday from 3.30pm until Friday morning whereby the father will drop the children at Kindergarten.
The father also sought additional contact with the children on special occasions; namely, the children’s birthdays, Father’s Day, the Father’s Birthday, Christmas, Easter, along with telephone contact with the children from 6.00pm and 7.00pm each day.
The Respondent mother, in her Response to the father’s application, filed 8 June 2007, sought orders that the children live with the mother, and that the father and the mother have joint equal shared parental responsibility in consultation with each other for the making of decisions about the long term care, welfare and development of the children. She sought for the father and the mother to have sole responsibility for making decisions about the day to day care, welfare and development of the children during periods when the children are in their respective care.
The mother sought for the children to spend time with their father in incremental stages (stages one to six). Stage one would start off with the children spending time with their father over a period of 6 weeks each Wednesday from 1pm to 5pm and by telephone each day between 5.00pm and 6.00pm. Stage six, the final stage, would see the children seeing their father each Wednesday from after school until before school on Thursday; and each alternative weekend from after school Friday until before school Monday, along with additional contact during school holidays and special occasions.
The progression from one stage to the next would be conditional on the mother being satisfied that the father had fully met the special needs of the children.

The children’s health

C is a 5 year old boy who at birth was diagnosed with X’s Disease. This necessitated an operation in which half of his bowel was removed and resulted in C developing a neurogenic bladder. He is considered to have “failure to develop normal nerve control and function to the bladder.” Initially his mother was required to intermittently catheterise him. He has continued to have ongoing problems with bladder infection and bladder control. C can also lose control of his bowel movements and suffer regular rashes, which can develop into ulceration. C has special dietary needs, which can be quite onerous. The mother submits that owing to all of the above C requires a “sophisticated, vigilant and consistent approach” to the management of his condition.
J is a 3 year old boy. There was little information about J’s health put to me at the hearing. What can be discerned from the mother’s affidavit and the information provided by Ms Harris is that J suffers from Eczema and Asthma. From the age of about 18 months old he has also had recurring bouts of Croup.

The issues in dispute

The key issue in dispute in this case is whether the father has the capacity to deal with the medical needs of the children, especially C. It is the mother’s submission that during the marriage the father was involved to only a limited extent in the children’s day to day medical needs and care.
The father, by contrast, submits that he has always been heavily involved in the children’s lives, and has paid attention to their medical needs. He contends that he is more than capable of managing J and C’s conditions and that the mother is using C’s condition as a reason not to make the children available to him.

The evidence

Counsel for the Mother, Mr Coates focussed on the physical risks to the children of being in the father’s care. He submitted that C in particular requires comprehensive, daily management, and that there is a risk to the child if this regime is not strictly adhered to. Mr Coates placed heavy emphasis on the extent to which both parties had met this need in the past. Mr Coates stated that the mother has been solely responsible for the management of C’s condition since he was an infant, and that she has put in place a comprehensive regime. He submitted that the mother has been extremely dedicated in carrying out her responsibilities in relation to C, and has done so proficiently. This accords with correspondence from Dr Farnsworth dated 28 May 2007, where he states: “in my opinion [C’s] mother has carried out his care in an extremely responsible and competent manner, particularly when challenged by the need to intermittently catheterise C.”
Counsel for the mother did not wish to suggest that the father was not a good father, but rather that the father cannot meet the special needs of C. Mr Coates submitted that to achieve the level of management that C requires, the provider of the care must be highly skilled.
He relied on photographs annexed to the Mother’s affidavit, which showed the physical effects on C; namely the extent to which the child suffers, if his bowl movements are not managed quickly and appropriately.
Counsel for the father, Ms Harris, submitted that the father is more than capable of meeting the needs of his children. She submitted that when one compares the detailed information (and scheme for C) that the mother has provided the father, with the less detailed information that the mother has provided C’s Kindergarten, one can see a significant gap in the level of detail. She also submitted that there was no evidence in the mother’s affidavit that the workers at the Kindergarten were highly skilled in managing C’s particular condition or that the mother had deliberately sought out a Kindergarten that would meet the needs of C.
In relation to the mother’s submission that the father had not played much of a role in the children’s upbringing and medical care, Ms Harris cast doubt on the credibility of the information provided by
Dr Farnsworth by pointing to inconsistencies in his statements. She refers to the report of Dr Farnsworth of 28 May 2007. Here the mother focuses on the fact that the doctor has no definite recollections of meeting C’s father, which is at odds with other correspondence from Dr Farnsworth, where he indicated that he had reviewed C with his parents.
In relation to evidence attached to the mother’s affidavit from
Dr Dilley, C’s consultant paediatric surgeon, which stated that C’s condition had in the last few months appeared to backtrack,
Ms Harris stated that this could be for other reasons, namely the fact that C has been affected by the separation of two significant people in his life. Ms Harris noted that it is not unusual for some form of regression to occur in children of parents undergoing relationship difficulties.

The law

Parenting orders are governed by Part VII of the Family Law Act1975 (“the Act”). One of the objects of the Act, as it applies to parenting arrangements for children, is to ensure that the best interests of children are met by “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child.”
Section 61DA of the Act states that the Court must apply an assumption that it is in the best interests of children for their parents to have equal shared parental responsibility.
This is an interim hearing. The Full Court in Goode & Goode [2006] FamCA 1346 conveniently set out a pathway for the conduct of interim hearings, which was summarised by Brown FM in R & R [2007] FMCAfam 29.
In Goode & Goode the Full Court directed that in determining interim parenting order applications, after identifying the competing proposals of the parties; the issue in dispute; and any other agreed issues; the Court should:
·Consider the s.60CC matters relevant and, if possible make any relevant findings of fact;
·Decide whether the presumption in s 61DA should be applied or it is rebutted because:
ØThere are reasonable grounds to believe child abuse or family violence has occurred; or
ØIn interim proceedings only, it would not be appropriate to apply the presumption;
· If the presumption does apply, decide whether it should be rebutted because it would not be in the child’s best interests;
· if the presumption applies, consider first making an order that the children spend equal time with each parent, then if not an order for equal time, an order that the child spend substantial and significant time with each parent, unless it is contrary to the children’s best interests as a result of a consideration of any relevant s.60CC matter or is impracticable in the terms of s.65DAA(5);
· if neither equal time or substantial time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child, when considering applicable matters in s.60CC;
· if the presumption is rebutted or found not to apply then make the orders considered to be in the best interests of the child, again as a result of applying the relevant s.60CC matters; and
· Even in this latter situation is open to the Court to make an order for equal time or substantial and significant time, if the Court considers it to be in the best interests of the child concerned.

Consideration

I now turn to the relevant matters under s.60CC.
Section 60CC(3)(a): Wishes of the children. There was no evidence before me in this regard. In any event, any weight to be accorded to this consideration would be minimal as both children are very young.
Section 60CC(3)(b): The nature of the relationship of the child with each of the child’s parents. There was no evidence before me to suggest that the children have anything but a good relationship with both of their parents. The relationship that the children have with their mother may be stronger because she has been the primary carer of the children, particularly since the parent’s separation earlier this year, but this is not to suggest that the children cannot develop an equally as strong relationship with their father. Indeed, it is in their best interests that they do.
Section 60CC(3)(c): The willingness and ability of each of the child’s parents to facilitate and encourage, a close and continuing relationship between the child and the other parent. There are two barriers to the willingness and ability of the parties to facilitate and encourage the relationship. Firstly, the family consultant, Ms Fisher in her oral evidence at hearing, stated that the hostility between the parties is very evident. I note that separation is still recent, having occurred in early February this year. Their relationship is still very much affected by the emotion surrounding their separation. In time the parents will be in a better position to put their feelings in relation to each other aside in order to concentrate on facilitating and encouraging a good relationship between their children and the other parent. I have no doubt that both parents love and care deeply for the boys.
The second barrier to the willingness and ability of the parents to facilitate and encourage the relationship is the mother’s fear that the physical safety of the children will be compromised in their father’s care. The mother’s concern seems to relate particularly to fears that C’s condition will deteriorate when he is with his father. This concern is understandable given her considerable personal commitment to ensuring the best outcome, especially for C. Whilst her concern is understandable, I think it is overstated. This was certainly the view of the Family Consultant, Ms Fisher, who gave evidence that the mother is over anxious, which she acknowledged was common amongst parents who have children with special needs.
Section 60CC(3)(d): The likely effect of any changes in the child’s circumstances including the likely effect on the child of separation from their parents. As the mother has been the primary carer and because of the rigorous regime that she has set for the children, it may take some time before the children fully adjust to being in their father’s care. However, the benefit to the children of developing a meaningful relationship with their father outweighs any adjustment problems that may arise, at least initially.

Section 60CC(3)(e): The practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis. No practical difficulty or expense arises from the present facts. The parents live within close proximity to each other.
Section 60CC(3)(f): The capacity of each of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs. The mother is clearly a responsible parent. She is to be commended in the circumstances. Her level of care to both her children can only be described as exceptionally dedicated. In communications between herself and Dr Farnsworth, which were tendered at hearing, it is clear that she has made every effort to do the best that she can for her son C.
The mother submits that the father lacks insight into the needs of both children, especially C. However, in her oral evidence the Family Consultant, Ms Fisher stated that at interview the father demonstrated a sound understanding of the needs of C. She stated that while it may be that the mother has greater knowledge than the father, the father did show “quite considerable knowledge of what the child’s needs are” and was able to explain this in detail. Ms Fisher felt quite confident that the father would manage both boys appropriately.
This would seem to complement the father’s affidavit material, and is ground for concluding that the father is capable of dealing with C’s daily needs.
Section 60CC(3)(j). Any family violence involving the child or a member of the child’s family. I do note that in her affidavit dated 6 June 2007 the mother adverts to incidences of violence, namely verbal abuse, that have occurred between herself and the father, which, on occasion, the children have either overheard or witnessed. This issue did not specifically arise at trial and therefore there is not enough evidence before me to give this consideration weight. I am, however, of the view that if there is any violence involving the children it arises from the animosity that exists between their parents and is not directed at them. Therefore provided the parents communicate outside their children’s presence and hearing, any risk to the children will accordingly be averted.
Section 60CC(4): Fulfilment of or failure to fulfil the obligations of parental responsibility: To the extent that I have not previously dealt with this consideration, there is nothing before me to suggest that either parent has failed to fulfil the obligations of parental responsibility. The mother in particular has shown great care, patience, skill and dedication to achieving the best outcome for C.

Equal shared parental responsibility

Neither party is seeking that the children spend equal time with each parent. I must therefore consider whether an Order that each child spend substantial and significant time with each parent is in the children’s best interests. What is paramount is the best interests of the children. Having considered all of the factors, I am of the view that it is important that the children do eventually spend substantial and significant time with both their parents. In view of the fact that they have had little contact with the father for the past six months, I favour a gradual approach, but without the complexity proposed by the mother and over a shorter period, as this would allow a smoother transition and minimize disruption to the children’s lives, whilst also allowing an opportunity for the children to develop a meaningful relationship with their father.
The father seeks quite considerable telephone communication with both children. I feel that daily telephone contact may be unduly disruptive to all concerned. There may be occasions, for example, when the mother may wish to go out with the children or where the children may wish to go to a friend’s house. I would not wish to impose a situation where either the mother or the children may be limited in their movements, even if only for an hour each night. In stating this, some telephone contact between the father and the children is in the children’s interests, as it will certainly facilitate the development of a meaningful relationship between the father and the children.

Conclusion

Children, to borrow the words of the Act, have “a right to know and be cared for by both parents”. Indeed, one of the key considerations under the amendments to the Family Law Act, which took place last year, was the need for children to develop meaningful relationships with both their parents. The best interests of the child is the paramount consideration.
This case is unique in the sense that not only do both children have medical issues that both parents must deal with, but one child has medical needs which are quite severe, and which requires daily treatment. I am satisfied that the father can deal with these needs. The father does not demonstrate an inept understanding of the children’s needs, which would lead me to the conclusion that the children’s medical issues are such that substantial and significant time with their parents would not be in their best interests.
Separation has been painful for both parents and it is clear that it still remains a factor in their relationship. This is indeed unfortunate. Cooperative parenting is beneficial to all children, but more so to children with special medical needs. I am confident that the mother and the father will find strategies to communicate with each other as parents of children with such needs.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Pascoe CFM

Associate: M. Azzopardi

Date: 3 July 2007