Lyon and Lyon - [2009] FMCAfam 315

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LYON & LYON

[2009] FMCAfam 315

FAMILY LAW – Children – interim application seeking residence and sole responsibility for making decisions in relation to medical treatment – seeking permission to residence in South Australia until final orders made – best interests of the child.

Family Law Act 1975 (Cth) ss.60CC(4), 65DAA(3)

Applicant:

MS LYON

Respondent:

MR LYON

File Number:

BRC 11115 of 2008

Judgment of:

Burnett FM

Hearing date:

23 February 2009

Date of Last Submission:

23 February 2009

Delivered at:

Brisbane

Delivered on:

23 February 2009

REPRESENTATION

Counsel for the Applicant:

Ms Hogan

Solicitors for the Applicant:

Carter Naughton Rice

Solicitors for the Respondent:

Madden Solicitors

ORDERS

That the parties submit a draft minute of order giving effect to this judgment within fourteen (14) days.

IT IS NOTED that publication of this judgment under the pseudonym Lyon & Lyon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRC 11115 of 2008

MS LYON

Applicant

And

MR LYON

Respondent

REASONS FOR JUDGMENT

This is an interim application brought by the mother formally seeking orders that a child, [X], born in 2001 reside with her, that she essentially have sole responsibility for making decisions in relation to medical treatment subject to various conditions and that she be permitted to live, until final orders, at a South Australia address which is identified in the affidavit material.
The father consents to orders being made that the child live with the mother, however, in broad terms opposes an order that the mother be permitted to relocate to Adelaide and also opposes orders that the mother be solely responsible for making decisions in relation to the care of the child, [X].
Upon examination – there are of course other orders where the parties, at least in terms of their application and response differ. They are mechanical in nature and will be resolved, I expect, following the determination for two headline issues which I have just outlined otherwise the matter can come back before me later in the week and I will resolve any detailed points that require a resolution in terms of mechanical matters but, as I say, I expect the parties to resolve the mechanical issues once I have determined the headline issues.
As with all interim applications, these applications can only be determined by reference to the facts that are not in contest. Neither party, of course, can claim the status quo. The object of the legislation is to examine each application at each stage on a de novo basis and I adopt that approach. I have already outlined the competing proposals advanced by each of the parties.
In the context of this application, of course, it has to be resolved as always by reference to the principles provided for in Part VII of the Act and, in particular, the object of principles which are specified in s.60B sub-ss.1 and 2 which, at least so far as they are particularly relevant to this case, involve the object of ensuring the best interests of the child are met by ensuring that he has the benefit of both his parents having a meaningful involvement in his life to the maximum extent consistent with the best interests of the child and ensuring the child is protected from physical harm or being subject to neglect.
The principles underlying the objects are that the child has a right to know and be cared for by both of his parents and, of course, the child has a right to spend time on a regular basis and communicate on a regular basis with both his parents. Also the parents should jointly share duties and responsibilities concerning the care, welfare and development of the child as well as agree about the future parenting of the child.
One starts, of course, in this instance upon the premise provided for in s.60DA that when making a parenting order in relation to a child, the Court must presume and apply the presumption that it is in the best interests of the child for a child's parents to have equal shared parental responsibility. There are no disqualifying instance or no disqualifying allegations in this case that would suggest the presumption of the Court not to apply and those even having regard to the fact that this is an interim application which brings that presumption into play.
Accepting that as that presumption applies, the Court is then required to consider the question of equal and substantial and significant time which is provided for in s.65DAA. Before expanding upon that consideration or that issue, it first needs to be noted that before the mother recently relocated from Brisbane to Adelaide, she was resident in Brisbane and the father was resident in Rockhampton. This has been the position since the parties separated when they did on or about 9 September 2005.
I should indicate that the parties are 44 and 46 respectively. They married in December 1997. The child, [X], was born in 2001 so he is now about 7 almost 8. There have been various, at least one separation – trial separation, prior to the final separation which occurred on

9 September and following that time, the father continued to reside in Rockhampton where his employment is and the mother returned to Brisbane where they had originally commenced their relationship.
During the period between September 2005 and present time, the evidence appears to be that there were no formal Court orders in relation to time and that the child usually had contact with the father every one-half of the school holiday periods. Also, the father and the mother communicated with each other as to when contact would occur and when the father could accommodate time to spend with the child, [X].
It is acknowledged that when the father was in Brisbane outside of school holiday periods, noted to be usually for sailing regattas, the mother would try and make the child available to him in the event that the father wished to see the child. The evidence about the time spent during that period is otherwise fairly scant, that material having largely come from the mother's affidavit, but is not denied or challenged or rejoined in the father's affidavit.
Now, it follows that irrespective of the mother's present relocation from Brisbane that the real position here has to be assessed, in my view, from the premise that if in fact the father was successful in the application today the position has to be assessed from the perspective of the father living in Rockhampton and the mother continuing to reside in Brisbane. The mother's proposed relocation can be superimposed upon that background.
Accepting that to be the case, without descending into significant detail, it is obvious that there could not be an equal time order in the present context and that likewise there could not be a substantial and significant time order in the present context.
In making that statement one must have regard to the definition of substantial and significant time provided for in s.65DAA(3). It is quite apparent that in the context of the relationship that exists at the moment there is little prospect that the child could be said to have spent substantial and significant time with a period by spending time that fell on the weekends and holidays and days that do not fall on weekends and holidays regularly, and likewise that the time that the father could spend with the child would permit him to become involved in the child's daily routine or occasions and events that were of particular significance to the child. It is obvious when the father is only spending holiday time and irregular outside holiday time that that situation cannot ensure.
It follows that from a very quick analysis of s.65DAA that despite the Court being required to consider whether there ought be an order for equal time or substantial and significant time is quite plain that it is not reasonably practicable in these circumstances for that to occur and accordingly one must simply assess the position by reference to the questions of paramountcy provided for in s.60CA which calls upon the considerations provided for in s.60CC.
By that I mean it is important in this instance to determine this application by reference to what might be regarded as the child's best interests as being the paramount consideration. In determining what are the child's best interests one has regard to the s.60CC factors and in particular the primary and additional considerations. So far as the primary considerations are concerned there is the question of the benefit to the child of having a meaningful relationship with both the child's parents.
If one comes back to the two applications per se and looks broadly at the two proposals it can be seen that save for the caveat provided for in para.10 of the response, which is that the mother will not relocate to outside south east Queensland, the father's proposal in these terms broadly provides for the child to spend time and communicate for one weekend per month from after school Friday to 7 pm Sunday with the father to provide seven days' notice of his intention to exercise such time, alternate Easter school holidays – it does not matter who starts this year – one week in June, the whole of the September holidays, half the Christmas holidays, and then reasonable telephone contact. So it seems that aside from the elective week available to the father once a month what the father broadly proposes is alternate holiday time.
The mother's proposal, curiously enough, is not significantly different except perhaps expressed a little differently but in broad terms provides that the child should live with and communicate with the father for one-half of each of the South Australian Gazetted school holidays and for one weekend in every three months provided in the event the father is desirous of spending additional time the father gives notice in writing to the mother.
Without descending into the details of the two proposals it can be seen that both proposals seem to contemplate broadly holiday time with one weekend, one might say, a mid-holiday weekend with the father. Both proposals of course in that context can be seen to be entirely appropriate and one could not be preferred to the other.
The only caveat that I only note was at para.10 which is of course relevant to the issue of relocation outside Queensland; however it would seem that given that the mother's proposal involves time outside Queensland it could not be seen that the mother's proposal is any less advantageous subject to matters that I will debate in a moment about cost.
I suppose one further matter that needs to be noted in the context of the application is the father does make proviso for if the father resides within 140 kilometres of the child, and of course there is no evidence at this moment to suggest that is a realistic possibility. The father works in Rockhampton, there is no suggestion the mother wishes to relocate to within 140 miles of Rockhampton, and accordingly that particular proposal does not warrant any weighty consideration. It follows in any event that in terms of the two proposals advanced neither could be said to be preferable one to the other.
Next is the need to protect the child from physical or psychological harm. Again, there is no suggestion in either case that the child here will be subject to any physical or psychological harm, although one matter which perhaps is not in dispute which is of course the child should live with the mother does have some peripheral bearing upon that matter.
The child in this instance was born with a congenital defect. He suffers from a condition which is described as hydronephrosis which is a blockage of both kidneys. It results in incontinence, both renal and rectal, and there are attendant social, emotional, and developmental difficulties. This is perhaps most evident or demonstrated by the effects of some recent treatment upon the child. Prior to surgery on 4 July 2008 he weighed 24 kilos which put him within the normal healthy weight range for a 7 year old. Now he has a weight of 18.3 kilos some seven months later. Quite clearly he has not recovered well from his surgery and he suffers by reason of that.
Furthermore, it can be seen by reference to the material that there are attendant difficulties, social difficulties as well as technical and medical difficulties related to his condition, and to that end it seems that of course it is important that the Court weigh in its deliberations the need to ensure that the child is afforded medical treatment to address those matters, but I will speak more of them in a short time.
Putting that matter aside, it seems again that having regard to the two proposals neither proposal can be advanced as being one preferable to the other, and on that basis I will move forward to the next considerations.
In terms of additional considerations, first the views of the child; none are expressed in this instance so that matter does not assist the Court in any regard.
Next is the nature of the child – or the relationship the child has with each of the child's parents and any other persons. Again, the evidence demonstrates the child has a good relationship with both parents and also there are indicated in the material relationships with extended family although it is not detailed or suggested in any detail that such relationships are more than one would normally expect in this situation. Again, so far as that consideration is concerned it does not necessarily favour either proposal.
Next is the question of the willingness and the ability of each of the child's parents to facilitate and encourage a close and continuing relationship between the child and the other parent. That requires the Court to consider the matters provided for in s.60CC(4) which requires the Court to consider the extent to which each of the child's parents have fulfilled or failed to fulfil his or her responsibilities as a parent and in particular the extent to which each of the child's parents have taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend with the child, and to communicate with the child, and have facilitated or failed to facilitate the other parent to do likewise.
In this instance there is no question that both parents have certainly sought to spend time with the child and communicate with the child and have facilitated that process, and by and large it seems there is no question that both parents have also sought to involve themselves in making decisions about major long-term issues in relation to the child although there is some debate about those matters on the periphery.
As I have earlier noted, it is not the function and the role of the Court to involve itself in determining factual disputes at an interim hearing. The Court proceeds on the premise of disposing of the application only on the basis of the uncontested facts. However, putting aside the contest between the parties about the extent to which the father – as it is alleged by the mother –has engaged in or involved himself in the medical treatment of the child and the father's complaints that he has sought to engage and he has been excluded, the fact remains that this child does require a considerable amount of ongoing medical attention. Although it is said on behalf of the father that there is concern by the father of smothering of the child – to quote the father's solicitor – it does not surprise me to read what I read in the affidavit material having regard to the nature of these complaints. No doubt it is very uncomfortable for a child at school or of school-age to have to attend school in a nappy.
I note the father's challenge to those matters in his own affidavit, but also note of course that the father does not have the child during school-time, and accordingly probably does not have the same experience the mother has had of having to send the child off for six or seven hours of a day without the capacity to intervene to assist in his condition. Without being critical of the father, lack of insight or appreciation of that matter by the father may demonstrate on his part some lack of insight into the major issue in relation to the child.
The mother of course has that advantage, whether it is simply because of the fact that she has to live with the child or otherwise is not material. She does have that advantage, and it does seem to me that the father's somewhat – I will not say callous – but certainly the father's attitude perhaps demonstrates some little lack of insight and perhaps a failing on his part to really consider the long-term issues.
I should say, however, and I do not mean to be critical of the father in making the observations. In fairness to him he complains that he has been excluded by the mother from consulting medical practitioners. That matter is not conceded and of course it is difficult then in that context to assess whether or not there is something in the father's complaints in that regard, but in any event it seems having regard to that particular consideration that matter does not necessarily assist me in determining which of the two proposals is to be preferred.
Next is the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents. This is perhaps one of the more significant considerations in the context of this application.
The child has lived with his mother since birth, or at least since separation I should say, and during that time the child has enjoyed an extended or a long-distance relationship with his father. It would seem that a relocation extending the distance of the child from the father is not one that is going to create a significant change in circumstances in the current context.
It follows that even though the father might be now more geographically remote than he was when the child was in Brisbane it would seem to me that the proposal advanced by the mother for relocation, at least on a temporary basis until matters can be resolved, is not likely to have any significant adverse impact upon the child. It is certainly not going to – provided appropriate arrangements are in place – it is not going to impact on the child in any adverse sense at all. Indeed, it might actually have a positive outcome in that it might bring the parties to value the time and use the time that they have together more constructively.
In any event it seems to me that there is not likely to be any adverse impact in the child's circumstances if the child was to relocate in accordance with the mother's wish. Of course from the converse perspective what is likely to happen if the mother is not permitted to relocate? Well, there are of course other effects. The mother has a new relationship she has embarked upon. She has worked her way into a family in the new situation, and it is of course likely that the mother will respond negatively to not being able to pursue these matters and no doubt whether the outcome be intentional or otherwise it is likely that the child will obviously be affected by the mother's mood and other factors that are relevant to that matter.
That of course would not be such an issue if the father resided in a geographically proximate situation so that when the mother suffered in response to her inability to progress her life the father was available to assist the child during that time; but in this instance the father is in Rockhampton and he is remote from the child and of course he will not be in a position to assist the child in the event that there is a negative response upon the mother's mood and feeling as a result of that matter, and so it follows, in my view, that given that matter there is likely to be, first, no negative effect upon the relationship of the child with his father but the possible negative effect of a relationship between the child and his mother which will not be compensated for by the father in the event that the father's proposal is preferred, and so on that basis I think the mother's proposal is to be preferred having regard to that consideration.

Next is the question of practical difficulty and expense of the child spending time with and communicating with the parent. In this instance the mother contends that the arrangements can be accommodated within their financial circumstances and subject to that matter there is, in my view, no reason why – provided the father of course is not adversely affected by these matters – no reason why an arrangement cannot be put in place. It is at the end of the day merely a matter of expense and if the mother is prepared to meet that expense until the matter is resolved by final hearing, well, then in the absence of prejudice to the father I see no reason why that issue should stand in the way of an order in terms of those sought by the mother, and so again it seems that that issue is no impediment to the proposal advanced by the mother.
Next is the question of the capacity of each of the child's parents to provide for the needs of the child, including emotional and intellectual needs. The father in his affidavit says in the last paragraph of his affidavit if the mother wants to live in Adelaide then he would seek that [X] reside with him. That is in his affidavit but it is not supported in his application, and indeed when I asked the parties at the commencement of the application I was informed that no order was sought in those terms today, not to say that the father may not, on reflection, decide to prosecute an order in those terms but his response document does not seek an order in those terms and nor was an argument advanced today that the father would seek an order in those terms. It is simply, I think, a throwaway line in an affidavit.
So it follows, in my view, that having regard to that matter it is somewhat artificial to consider this issue of the capacity of the child's parents to provide for the needs of the child in the context of an application where the mother wants to relocate and the father opposes relocation but the father does not necessarily want to himself assume the burden and responsibility of being the resident parent.
There is no question in this case that each of the parties have the capacity and no question that they can provide for the needs of the child, including emotional and intellectual needs. The real question is really who wants to do it?
The mother wants to do it and the father, as I say, by the way in which he has conducted the application does not necessarily express an unequivocal interest in doing it, and accordingly it seems to me it would be not in the best interests of the child to restrain the mother from adjusting her life because the father may or may not at some later stage decide to change his mind and more vigorously prosecute an application for the child to live with him. So despite that particular consideration being a little equivocal the mother’s proposal, in my view, is the most favourable.
Next are questions of the maturity, sex, lifestyle, and background of the child and of the parents. There are no particular matters beyond the medical matters I have earlier identified which, I think, are relevant to this application. They have been canvassed but they do tend to favour the proposal advanced by the mother on the basis that the mother more so than the doctors has had the day-to-day involvement in the child's condition, and although the condition requires medical intervention no doubt the mother who has provided that day-to-day nursing care and involvement in the condition is as critical to the care of the child and his ongoing health as any other aspect of the medical treatment that is provided by the professionals. So that end, again it favours the mother's proposal that she relocate with the child to Adelaide.
So far as the attitude to the child and responsibilities of parenthood as demonstrated by each of the child's parents again requires me to consider the s.60CC(4) matters. I have earlier touched upon them and cannot expand upon them any further.
The only other matter which I need to address is any fact or circumstance that the Court thinks is relevant. I think it is important in this instance to highlight a little bit about the medical history of this child. He has had this condition since birth. He has been under medical attention since birth.
Despite me calling upon the father's solicitor to identify great involvement by the father in the medical treatment of the child the best she could do was refer me to paras.4J and 4R of the father's affidavit. 4J deals with his involvement with a couple of appointments with Dr C who was providing in utero medical advice to the parties. Since then the only other involvement could be noted to be that spelt at 4R of the father's affidavit which in itself does not speak significant involvement by the father. It is more in the nature of a complaint about the failure by the mother to provide information, which is a matter which I will deal with, but by and large does not nearly address the matters that are identified in the mother's affidavit at paras.12 through to 66 in terms of pure medical concerns together through to 76 in terms of day-to-day needs which are matters I will not restate for the record but which highlight significant amount of care the child requires.
While I understand the father's concerns that it may look somewhat cynical that the mother has changed or suddenly finds another specialist – and I certainly agree that it is more likely than not that the medical treatment in Brisbane is no better than the medical treatment in Adelaide – the fact remains that the mother has been intrinsically involved in the provision of medical care and is, I think, just as important a part of the doctor/client relationship as the relationship between the child and the doctor himself and that, I think, is an important factor in the overall context of the application.
It follows from my view of the facts when one considers all the s.60CC considerations discretely and considers them collectively that it is indeed in the best interests of the child that the child reside with the mother in South Australia, at least until we have a trial and we can work out what should happen in the longer term. That is subject to there being put in place an adequate arrangement in relation to time. As I say, the broad bones of the orders are provided for in the mother's application and in the father's application in para.4 and para.14 respectively.
What I will do is direct that insofar as any medical procedure involving surgery is concerned the mother – unless it is urgent surgery and it is deemed to be urgent by the medical practitioner involved – the mother is to afford the father seven days' notice so that if the father wants to come to Court and argue against surgery for some particular reason he can bring an application on and we can see if we can dispose of it before surgery.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Burnett FM

Associate: Beverley Schmidt

Date: 15 April 2009