Lardon and Cool - [2009] FamCA 73

FAMILY COURT OF AUSTRALIA

LARDON & COOL

[2009] FamCA 73

FAMILY LAW – CHILDREN – Interim orders suspended – With whom the Child lives after release from hospital –Adherence of parents to daily treatment and care – Wishes of the 15 year old Child

APPLICANT:

Ms Lardon

RESPONDENT:

Mr Cool

FILE NUMBER:

BRF

10334

2000

DATE DELIVERED:

23 January 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Barry J

HEARING DATE:

20 January 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr S Page, solicitor from Harrington Family Lawyers appeared for the Applicant Mother

COUNSEL FOR THE RESPONDENT:

Mr Burridge of Counsel appeared for the Respondent Father

SOLICITORS FOR THE RESPONDENT:

John Hawes & Associates Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Terrance, solicitor of Legal Aid appeared as the Independent Children’s Lawyer

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

The child, … born … October 1994 to live with the Mother during the period of rehabilitation until his treating doctors at the Royal Children’s Hospital give directions/instruction for the construction of a prosthetic.
During the period provided for in paragraph 1 the Father is to spend time with the child from 9.00 am to 5.00 pm each Saturday and Sunday in the Brisbane area.
Changeover for times in paragraph 2 is to be at the entrance to the Royal Children’s Hospital or such other venue as the parties may agree in writing.
From the time directions/instruction given in accordance with paragraph 1 hereof the child is to spend two (2) weeks with his Father in the T area. The Father is to be responsible for collecting the child from Brisbane and returning the child to Brisbane. The period of time the Father has is to cease two (2) weeks after the child is collected and taken to T.
At the expiration of two (2) weeks the child is to be returned to the Mother’s care until the child’s treating medical practitioners certify he is comfortable using the interim prosethic.
During the period referred to in paragraph 5 hereof the Father is to spend time with the child from 9.00 am to 5.00 pm on Saturday and 9.00 am to 5.00 pm on Sunday.
The Father to have telephone, email and Skype/webcam communication (if available) with the child at all reasonable times the child is in the care of the Mother.
The Mother is to have telephone, email and Skype/webcam communication (if available) with the child at all reasonable times the child is in the care of the Father.
The Family Consultant is requested to explain to the child the effect of the Orders made this day and the reasons for such Orders.
Pursuant to Section 65L of the Family Law Act compliance with these interim parenting Orders is to be supervised by the Family Consultant.
The Family Consultant and the Independent Children’s Lawyer be at liberty to seek and receive progress reports from the relevant health and allied heath practitioners treating the child with the Independent Children’s Lawyer to distribute copies of these reports to the parties’ legal representatives.
Should any information from such reports suggest that the child’s progress is being compromised in any fashion all parties have leave to re-list this matter on

twenty-four (24) hours notice to the other parties.
The Independent Children’s Lawyer is at liberty to approach Senior Registrar Turner for the purpose of allocating a further interim hearing and/or final hearing dates when the Independent Children’s Lawyer is of the view the matter is ready to proceed to such further interim or final hearing.
Both parties to have joint parental responsibility.

IT IS ORDERED BY CONSENT THAT:

Paragraphs 3, 4, 5, 7 and 8 of the consent interim parenting Orders made on

5 March 2008
be discharged.

IT IS ORDERED THAT:

The matter is adjourned for review of the progress of this matter and any necessary directions before the Honourable Justice O’Reilly at 10.00 am on 24 February 2009 in the Brisbane Registry of the Family Court of Australia.
Pursuant to s 62B and s 65DA(2), 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 Lardon & Cool is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 10334 of 2000

MS LARDON

Applicant Mother

And

MR COOL

Respondent Father

REASONS FOR JUDGMENT

This matter has had a lengthy and unfortunate litigation history. The child, a son, the subject of the proceedings, has in recent times suffered catastrophic injuries and still his parents cannot agree as to what the arrangements should be for his post-hospitalisation care.
The matter came before O'Reilly J in March of last year. As I understand the position at that time, consent orders were made for the child to live with his father. In October last year there was the incident to which I have made reference where the child suffered serious injury. He has been hospitalised at the Royal Brisbane Hospital since that time. He is due for release in the near future. On 21 October, for the reasons she gave at the time, her Honour suspended the operative parenting orders which had been made on 5 March 2008. I am now asked to determine what arrangements should be made for the child for the immediate future.
The interim orders sought by the mother are to be found in paragraph 3 of an affidavit sworn by her on 19 January. Her preferred position, on an interim basis, is that the child live with her and that he spend time with his father from 9.00 am until 500 pm each Saturday and Sunday in the Brisbane area with changeover to occur at such place as the father resides whilst in Brisbane.
Her alternate position is that if the child is to live with the father then during the initial rehabilitation he live with her. After that period of rehabilitation he returns briefly to live with the father. In the process of the fitting of the prosthetic, again back with her, with the father seeing the child 9.00 am until 5.00 pm Saturday, Sunday. While the child is staying with the father she have 9.00 am until 5.00 pm on the Saturday and Sunday in the T region.
The father's position is set out in an amended response document dated 20 January 2009. He seeks that on the initial release from the Royal Children's Hospital, the child live with the mother during the week, the father shall spend time and communicate with the child for four hours on a Saturday and Sunday, that handover be at a place agreed by the parents or as ordered by the Court and the child be at liberty to telephone the father at any reasonable time. Once the child is measured for a prosthetic limb and following referral from the Royal Children's Hospital to G Hospital, then the child shall live with the father, that the mother shall spend time with and communicate with the child each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday. He also proposes telephone, email and webcam communication, first half of school holidays other than for Easter and Christmas, first half of the gazetted Christmas school holidays, handovers to be at McDonald's at N.
He seeks by way of order 3 that in the event the child is required to receive further treatment from the Royal Children's Hospital that would require the child to be in Brisbane for a week or longer then the child shall live with the mother and the child shall spend time with and communicate with the father from 10.00 am on a Saturday until 4.00 pm on a Sunday.
The child was interviewed by myself at the Royal Brisbane Hospital. I was accompanied by the Independent Children's Lawyer, Ms Terrance. Details of that interview have been prepared by Ms Terrance and constitute exhibit 5 in these proceedings. Exhibit 5 consists of two separate documents. One is the short form of the child's wishes, a one-page document. The other is an extremely detailed record of exactly what transpired, both in my presence and otherwise. In the shorter document setting out the summary of the child’s wishes, prepared by the Independent Children's Lawyer (paragraph 3) is in the following terms:
a)“that upon his release from the Royal Children's Hospital that he stay with his mother in Brisbane the approximate two to four week period that he will require stump bandaging of his right leg;
b)that after he is measured for his prosthetic that he stay with his father in [T] for the approximate two weeks that it will take to construct the prosthetic;
c)that when he is required to attend approximately three weeks of daily rehabilitation in Brisbane to learn how to use the prosthetic that he stay with his mother in Brisbane; and
d)that he live with his father in [T] on an interim permanent basis after the approximate nine weeks of rehabilitation period outlined above.”
I accept that they were the wishes expressed by the child to me when I visited the hospital.
Ms B is the Family Consultant who prepared the report in March last year. I requested the parties to attend on Ms B. I did not need her to ascertain the wishes of the child. She had not been available on the Friday morning when I had gone to the hospital and undertaken that aspect myself. Ms B prepared a report at short notice having seen the parties on the Monday after the hearing in this matter.
At page 7 of that report under the heading "Recommendations" she notes:
“22. It is respectfully recommended that [the child] live with the mother in the Brisbane area during phases 2 and 4 of his immediate discharge from hospital.
23.It is also recommended that [the child] live with his father at [T] for a maximum of 2 weeks after he has been fitted for his prosthetic leg and the leg is being constructed. If the construction period takes longer, [the child] is to return to his mother's care in Brisbane.
24.It is further recommended that while [the child] lives in the Brisbane area with his mother, that he enjoy liberal unimpeded telephone contact with his father and that he spend time with his father as often as [the father] can arrange to travel to Brisbane and arrange suitable accommodation.”
She then recommends further supervision by the family consultant pursuant to s 65L and that the Independent Children's Lawyer have leave to return the matter to Court in the event that the child’s progress is being compromised by something that a parent or parents are doing or not doing.
The stance taken by the Independent Children's Lawyer is to adopt the recommendations made by Ms B.
The mother resides in the Brisbane area with her 18-year-old daughter, S. S has been the subject of proceedings in the past. The father resides in the T area where he operates a professional practice. As I have noted, the mother's preferred position is the child should not spend any time with the father save for weekend day visits for the two weeks after the child is discharged from hospital. In particular, she is opposed to the child having two weeks up in T while the prosthetic is being constructed. Her concern is the father would not be sufficiently diligent in attending to the child's post-hospitalisation care.
The mother's concerns are reflected to some extent in paragraph 13 of the family report. Ms B notes in that paragraph:
“[The father] indicated that he understood the necessity of [the child] keeping up with the application of his moisturising cream and the wearing of his body suit. [The father] commented, however, that he felt he could only encourage [the child] to comply and tell him that he should wear the body suit, but in the end it was up to [the child] as to whether he did. I indicated to [the father] that in situations like that, it was incumbent on the parent to make a difficult decision and force the child to comply for his own good. I further indicated that at times this would be very difficult, as a parent, and that there may be times that [the child] would hate him for his hard position, but in the long term [the child] would thank him. [The father] did not react or respond to my comments.”
The Court has been assisted by a series of reports from the Royal Brisbane Hospital, in particular a report from Dr M, the child’s treating paediatric surgeon. The report was co-authored by Ms C, the social worker involved in this case. There was a further report from the occupational therapist involved.
The prognosis for the child has to be uncertain at this point in time. He may have a speedy recovery and that is to be devoutly wished. He may not, he may have setbacks: further infections, other conditions which may supervene. It is impossible to say at this point in time. Dr M at page 2 of his report, under the heading "Future treatment" sub-heading "Daily Care and Equipment" lists a series of five dot points:
·“Upon return home [the child] will become fatigued easily as he has been confined to bed for much of his hospitalisation. Therefore [the child] will need a great deal of rest time and assistance gaining independence with activities of daily living.
·[The child] may need equipment in the home environment, for example, shower chair, to maximise his safety and level of functional independence.
·[The child] will probably use a wheelchair some of the time in the short term and also crutches when he is not wearing his prosthetic.
·[The child] will be required to wear pressure garments 23 hours a day. Therefore he will need to take his garments on and off for bathing. He also needs to apply silicone for scar management. In the short term he will require assistance with this, however, long term it is anticipated that he should be capable of completing these tasks independently.
·[The child] will need to moisturise his fragile skin at least twice per day. [The child] will need to remove his garments to do this.”
He then sets out the rehabilitation profile which has been summarised earlier.
The Independent Children's Lawyer has canvassed the possibility of an early trial date. As the Regional Co-ordinating Judge I have indicated that sympathetic consideration will be given to that. It is possible the child's wishes may change, depending on changed circumstances. Evidence may be elicited as to the ability of the parents to provide proper care for the child's ongoing treatment. The matter is in O'Reilly J's docket. I am conscious of not wanting to bring the matter on too early so that the child is given a reasonable opportunity to go through the rehabilitation process and as far as possible return to a normal life of secondary schooling and other activities. At some point in time the matter can be listed for trial and I propose to put in place orders that that is to take place when the Independent Children's Lawyer indicates to the Court that the matter should be so listed.
I have had the opportunity to re-read all of the material and to reconsider the submissions that have been made. One constant theme repeated by the medical practitioners, the family consultant, Ms B, the Independent Children's Lawyer and myself, is how essential it is for the parties to co-operate in ensuring the child receives optimal care whilst at the same time having the opportunity to maintain a relationship with each of his parents.
I have considered the orders sought by the parents. I propose to adopt the recommendations of the family consultant, supported as they are by the Independent Children's Lawyer. The mother does not agree with the child having two weeks with the father. The child has expressed a wish in those terms. The family consultant has adverted to it and the Independent Children's Lawyer has considered it, as have I, and the view that I have taken is it is appropriate to accede to the child's wishes at this point in time. It is important for the child's wishes to be respected at this difficult time in his life. I am not saying that for the future that whatever the child says is the end of the matter. At times a Judge may find it appropriate to override what children want, but for present purposes it coincides with reasonable arrangements for his future care.
I propose to leave for determination by O'Reilly J where the child should reside on an interim basis after phase three of his rehabilitation has been completed - that is, he is certified as being proficient in the use of the interim prosthetic.
In brief, my reasons for acceding to the recommendations of the Independent Children's Lawyer are as follows:
a)The mother has permanent accommodation in Brisbane. The father's accommodation will be perhaps at Ronald McDonald House, but it is not clear to what extent that accommodation is available once the child is an outpatient;
b)The mother has the support of the child’s sister, S, who would be able to assist her with his care, be able to assist her at times she needs to be absent from the house, shopping or attending to other duties. S has been devoted to her brother during the period of his hospitalisation and, once again, I commend her for that.
c)During the period of rehabilitation it is preferable, in my view, for the child to be in the Brisbane area. I am not being egocentric about the preferability of the capital city over regional areas. I am conscious of the statements made by the medical practitioners that the level of care in provincial areas is of the same standard as that available in Brisbane. For present purposes I accept that. However, the child would not be subjected to nearly as much travel if he is in Brisbane as if he was in T and having to attend the G Hospital. The child is familiar with the staff and the hospital setting in Brisbane. To have the child attending G involves daily trips of quite a long distance; familiarising himself with a new hospital, new staff, new regime, all of which to my view is already provided at a very high standard at the Royal Brisbane Hospital.
d)I am conscious of the mother's concerns that the father would not be sufficiently disciplined to ensure the child complies with the medical regime stipulated by the treating practitioners. She is similarly concerned the father would not be diligent in attending to the boy's treatment in an appropriate manner involving the application of creams several times a day and things of that nature. I have taken her concerns into account but am of the view the father would be able to adequately attend to his son’s ongoing care.
One aspect that was not adverted to by any of the medical practitioners or in any of the submissions is that the child's treatment, in all likelihood, would involve considerable ongoing pain. It may well be that instead of viewing the parent caring for him as promoting his best interests, he may associate that parent with ongoing discomfort and serious pain. I accept that is speculation on my part but I am of the view that it is reasonable speculation. However, the parents have both volunteered to be involved in his care and to my mind it is a further reason that the task be shared so the child appreciates that whoever is administering to his needs, there is no discrimination in that regard.
So for the above reasons I will make the following orders. These are draft orders, I will hear submissions on their terms.
ORDERS DELIVERED
RECORDED : NOT TRANSCRIBED

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate:

Date: 23 January 2009