LAWSON & HILL

[2015] FamCA 710

FAMILY COURT OF AUSTRALIA

LAWSON & HILL [2015] FamCA 710

FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – Where the father seeks contact with the child before and after surgery – Where the mother seeks the father be restrained from attending the hospital altogether – Assessment of risk – Where there is high conflict between the parents – Where the father is undergoing treatment for a psychiatric condition – Where no professional contact service is available to supervise the father’s contact with the child in circumstances where three centres have ceased to provide their services due to the father’s behaviour– Application dismissed.

Family Law Act 1975 (Cth) ss 60CA, 60CC,

Deiter & Deiter[2011] FamCAFC 82
Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Lawson

RESPONDENT: Ms Hill

INDEPENDENT CHILDREN’S LAWYER: Mr Christaki

FILE NUMBER: SYC 1626 of 2012

DATE DELIVERED: 24 August 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 24 August 2015

REPRESENTATION

FOR THE APPLICANT: Mr Lawson appeared for and on his own behalf

SOLICITOR FOR THE RESPONDENT: Ms Nessworthy of Hamish Cumming Family Lawyers

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Legal Aid NSW Sydney Central Family Law

The Court orders that:

1. The father’s Application in a Case filed on 28 July 2015 is dismissed.

2. The listing date on 25 September 2015 be vacated.

3. The father is hereby restrained from attending B Hospital on 31 August 2015 and on 1 September 2015.

4. Each party is to pay their own costs.

The Court notes that:

1. The mother has provided an offer to the father, which still remains open:

   (a)That the father is able to contact and speak to C the day prior to surgery provided he gives an undertaking that, if that telephone call occurs, that it is not cover the surgery so as to not stress the child or make him fearful of the surgery;

   (b)That the mother will text the father once the child is taken into the theatre and, if that is not possible, she will seek the assistance of the nursing staff to do so;

   (c)That the mother will text the father when the child is out of surgery and is in recovery;

   (d)On the recommendation of the doctor as to when the child is ready, the mother will facilitate a telephone call between the child and the father and that it will be at the sole discretion of the doctor as to when the child is able to speak with the father; and

   (e)That the mother will facilitate a telephone call with the father upon the child’s return home and when he is sufficiently recovered.

2. The Independent Children’s Lawyer requests that, in any telephone call which may occur, the father respects the need to ensure that those phone calls are not distressful to the child in terms of their length or content.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lawson & Hill has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1626 of 2012

Mr Lawson

Applicant

And

Ms Hill

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter concerns an Application in a Case filed by the father, Mr Lawson, on 28 July 2015.  In that Application, the father seeks to spend some time with his four year old son, C, who is to undergo surgery at the B Hospital next Monday, 31 August 2015.  The surgery is in the nature of what is described as an adenotonsillectomy. This includes having C’s tonsils removed and also having grommets inserted into his ears. 

2. All parties recognise the father sincerely loves C.  He cares for him, and he wants what is best for C and he wants to be there next Monday to indicate his love, support and encouragement for C.  Surgery is distressing for any young child and it is obviously of concern to his parents.

3. Dr D has provided a report dated 7 August 2014 indicating the need for the surgery. In that report he also describes some potential risks and potential consequences of surgery, particularly on a minor.  In summary, it will be quite a stressful situation for all concerned and that is understandable. 

4. All parenting proceedings are to be determined in accordance with Part VII of the Family Law Act 1975 (Cth) (“the Act”). Parenting orders are defined in section 64B of the Act, and they may deal with matters concerning the care for a child such as where the child is to live, who is to spend time with the child, and how that time is spent. The overarching principle for parenting orders is found in section 60CA of the Act, which states that:

   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

5. That is very much the focus of the Court.  While there were submissions presented from the father that may or may not have some merit, they need to be determined by the Court on another date.  I indicated to the father that the Court’s concern is not in respect of his rights, nor in respect of the rights of the mother, the concern of the Court in this decision is what is in the best interests of C.

6. In interim proceedings, there are difficulties in evaluating evidence when witnesses are not the subject of cross-examination. This difficulty has been considered in a number of cases which are drawn together in the decision of the Full Court in Goode & Goode (2006) FLC 93-286. Essentially, there is a limit to the extent to which the Court can have regard to evidence in circumstances where there is substantial controversy. In these situations, the Court will be guided by evidence that is agreed or admitted or can be objectively verified. In that respect, I have had particular regard to the reports of Dr E, who has been engaged as a single expert in respect to parenting matters.

7. But even despite those evidentiary challenges, the Full Court has made it clear in Deiter & Deiter[2011] FamCAFC 82, that even in interim proceedings, the Court has the task of evaluating the risk to a child who is the subject of the proceedings. In evaluating the risk, the Court is required to consider firstly the possibility of that risk and secondly the consequences should that event occur; in other words, the risk materialises into an actual event. 

8. Taking that approach, I find that there is a risk in the father’s attendance on Monday. That is not to suggest that in any way, shape or form that the evidence is a one way street.  It was acknowledged on behalf of the mother, for instance, that the relationship between the parents is one that has been volatile, that it has been marked by disagreement, it has been marked by conflict and there is every possibility that conflict may manifest itself on Monday.  That risk of conflict between the parties is the first risk identified. 

9. The second risk that I identify is the presence of the father in the context where the medical evidence of Dr E refers to a mental health condition, for which the father is receiving treatment, that can result in him engaging in inappropriate behaviour. The father has also tendered two medical reports.  One is a brief report of the father’s treating psychiatrist, Dr F, dated 21 August 2015, and the other is a report of Dr G, dated 23 August 2015. 

10. Dr G, in his report, indicates that the father is undergoing counselling and treatment by a psychiatrist, and commends the father for doing that. Indeed, Dr G has indicated that, as a result of the attention the father is giving to his medical treatment for his mental health condition, that he would be prepared to give up his own time and accompany the father next Monday for a period of fifteen minutes before C goes to the surgery, and fifteen minutes after C comes out of surgery. 

11. Nonetheless, the facts of the matter are, and it is acknowledged in medical evidence, that the father does have a mental health condition for which he is being treated, and indeed for which he is being counselled.  The evidence about the seriousness of that condition is not as clear as it could be for the Court positively find, as a matter of probability, that the father will engage in inappropriate conduct. The Court’s task, however, is not to form a view that the father will, as a matter of probability, engage in such conduct. 

12. What the Court is required to do is to determine whether there is a risk that the father will engage in inappropriate conduct on the day, and that is in terms of his manner of communication, his demeanour, and his interaction with others.  I find that there is such a risk and that may cause distress to C and result in C being exposed to a stressful environment which is contrary to his best interests.  That is the second risk identified.

13. The third risk identified is that, to offset that second risk would require the presence of a professional to supervise the contact.  There has been, tendered on behalf of the mother, evidence from three subpoenas addressed to three different contact services that have each experienced difficulties in respect to their dealings with the father.  The father has taken issue with the reports from those centres, claiming that he had been misunderstood or the events have been misreported in those reports. Accordingly, I have not had regard to the contents of the reports from those centres. 

14. I do, however, rely on those reports to establish that there is currently no professional contact service engaged on behalf of the father or the family, let alone one that has had experience with the family or who is aware of the various medical conditions of the father, and which can provide services that would be sufficiently equipped to deal with an issue that may arise as a result of inappropriate communication or conduct that the father may engage in next Monday.  That is the third risk that has been identified.

15. In identifying those risks, I have considered to what extent those risks can be offset. In that context, as noted, I have read the report of the father’s treating psychiatrist, Dr F, which is a relatively brief report and I have also read the report of Dr G dated 23 August 2015.  I note that neither of those medical practitioners had access to the documents which have been produced under subpoena in terms of the father’s engagement with the contact centres nor have they had the opportunity to obtain the father’s response to that material. 

16. I note, however, by way of mitigation of risk, that Dr G has generously offered his time to attend the hospital with the father fifteen minutes before C goes in for surgery and fifteen minutes after C comes out of surgery.  While that is a generous offer, I think it is impractical.  There is no guarantee as to what time C will undergo surgery, how long that surgery would be, and in other words, what times the fifteen minutes before and fifteen minutes afterwards will be. I therefore consider that offer, with the greatest respect and appreciation, to be inadequate to offset the risks that I have identified.

17. In returning to the legal obligations of the Court, the Court in determining what is in the best interests of the child under section 60CA, to which I have referred, needs to be guided by the legislative pathway set out in section 60CC of the Act.

18. Section 60CC(2) relevantly provides that the primary considerations are firstly “the benefit of the child of having a meaningful relationship with both of the child’s parents.” In that respect, the Court readily accepts that, in normal circumstances, it would be the child’s interests to have the presence of his father at the hospital.

19. However, the second primary consideration in subsection 60CC(2) is “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”.

20. As was submitted by one of the parties, the Court’s task is to balance that benefit, the potential benefit of the father being there, as against that risk, the detriment, or potential detriment, presented by that risk. How is that achieved? How is that balance made? Well, that is set out clearly in section 60CC(2A), which says:

    In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph 2(b). 

21. That is the legislative prescription telling the Court that, in making the decision today, I have to give greater weight to the element of risk. 

22. I have also had regard more generally to the issues set out in the additional considerations in section 60CC(3) which, on the whole have relevance to a broader consideration of the ongoing interaction with the child. This includes with the father and other relatives, including the relationship the father’s parents and family, have with the child.

23. I should indicate that in this decision I am not in any way suggesting that the father is an inappropriate father or unworthy father, or that his time in the future should be limited in any way.  These are matters that must clearly be considered by the Court with the benefit of additional medical evidence, including an updated report from Dr E, who is seeing the father shortly.

24. The mere fact that he has brought the Application is an indication of the passion the father feels and the degree of his desire to spend time with his son.  It is a genuine reflection of his concern. However, given my legislative responsibility to prioritise those elements of risk to which I have referred, I must, unfortunately, dismiss the father’s Application. 

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 24 August 2015.

Associate:

Date:  26.08.2015