McGlennan and Don

[2010] FamCA 333

FAMILY COURT OF AUSTRALIA

MCGLENNAN & DON [2010] FamCA 333

FAMILY LAW – CHILDREN – variation of interim orders pending delivery of judgment – application by father to introduce fresh evidence – child suffers from autism – deterioration in child’s behaviour since interim orders for time with the mother – best interests – orders made reducing mother’s time with the child pending further evidence

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

APPLICANT: Mr McGlennan

RESPONDENT: Ms Don

INDEPENDENT CHILDREN’S LAWYER: Northern Territory Legal Aid Commission

FILE NUMBER: DNC 148 of 2009

DATE DELIVERED: 13 APRIL 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: BURR J

HEARING DATE: 13 APRIL 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:	FATHER APPEARING IN PERSON
SOLICITOR FOR THE APPLICANT:	NOT RELEVANT

COUNSEL FOR THE RESPONDENT:	MS A McLAREN
SOLICITOR FOR THE RESPONDENT:	ASHA McLAREN

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	MS ELLIOTT
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	NT LEGAL AID COMMISSION

Orders

1. Further consideration of the father’s Application in a Case filed herein on 29 March 2010 be adjourned to 10.30 am on Monday 17 May 2010 by video link between the Darwin and Adelaide Registries of this Court (2 ½ hours allowed).

2. Leave is granted to the Independent Children’s Lawyer to relist the matter on an urgent basis on the giving of seven [7] days notice to the other parties in the event that matters emerge prior to the adjourned date which require the Court’s earlier attention.

3. Paragraph 4 of the orders made herein on 18 February 2010 be varied to record that the mother is to spend time with the child M born … September 2000 each alternate Saturday from 10.00 am until 5.00 pm commencing on Saturday 24 April 2010 UPON NOTING that:-

   (a)such time shall include a visit to the C swimming pool;

   (b)the collection and return of the child shall occur at the main entrance of the S Shopping Centre;

   (c)such time shall include time spent at the mother’s residence;

   (d)the mother will arrange lunch for the child which includes Red Rooster chips.

4. Paragraph 7 of the orders made herein on 18 February 2010 be varied to record that the father do undergo random supervised drug and alcohol testing pursuant to the chain of custody protocol and to include blood, urine or liver function testing or a combination of same as requested and identified as necessary by the Independent Children’s Lawyer, with such requests by the Independent Children’s Lawyer for testing to be at a frequency of no less than every two [2] weeks UPON NOTING that such drug and alcohol testing is to be conducted by the Royal Darwin Hospital or the Darwin Private Hospital.

5. Leave is granted to the Independent Children’s Lawyer to issue and serve a subpoena directed to Ms H, both to produce documents and to give evidence in these proceedings.

6. Upon the filing and service of the subpoena to be issued by the Independent Children’s Lawyer pursuant to paragraph 5 hereof, the Independent Children’s Lawyer do secure, file and serve an Affidavit of evidence in chief of Ms H in relation to events which have occurred since the conclusion of evidence during the trial of these proceedings.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: DNC 148 of 2009

MR MCGLENNAN

Applicant

And

MS DON

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. I have before me today for my determination the father’s Application in a Case filed on 29 March 2010.   In it, he has sought some changes to the blood testing procedures ordered by me on 18 February 2010 and sought to introduce fresh evidence relevant to the best interests of the child M born in September 2000.  The matter initially came before me for hearing on 9 April 2010 when I made a number of orders which were to the effect of bringing further information before the Court in order to try and make interim orders that might suit the child’s best interests.  Some of that additional information has now been provided being two affidavits filed by the father in these proceedings on 12 April 2010 and an affidavit of the mother also filed on 12 April 2010.  Because of the delay in reaching an end point in today’s proceedings, I have had the opportunity to read all of the materials that have been provided by the parties.

2. The parties are presently awaiting the delivery of my reasons by way of final Judgment in these proceedings which flowed from a trial over many days listed over a sitting time of between 3 and 4 weeks in aggregate.

3. As is the case with that final determination I am to make, any determination of interim proceedings in relation to parenting issues must be guided by the provisions of Section 60CA of the Act which oblige me to treat the child’s best interests as the paramount consideration. In making that determination I am then guided to Section 60CC which is divided into “primary” and “additional” considerations.

4. Given the material that has been provided to the Court to date and the information I have received from the bar table today, it is not necessary for me to deal with each of the individual sub-sections indicated in Section 60CC.  The principal issue for my determination is whether or not the Orders I made on 18 February 2010 that the mother spend time with the child each Saturday remain appropriate pending further evidence and further information being placed before the Court and pending the delivery of my Reasons on the final determination of the proceedings. 

5. The reason why that query arises is because of allegations made by the father that the child’s behaviour has deteriorated alarmingly since I made those Orders.   The father, not surprisingly, attributes this deterioration in the child’s relationship to the disruption of his routine by being obliged to spend time with his mother each Saturday.   It is his allegation that the child has not adjusted to that routine compounded by the fact, on his allegation, that the mother is not abiding by routines that have been set in place for the child on a Saturday.  A summary of the mother’s position would be that the father is the one at fault here.  He, and I acknowledge this, is in a position to manipulate the situation such that the child responds in a way which he thinks will advantage his case before this Court, him believing that it would demonstrate that a break in his present routine is the cause of all of the problems. 

6. I have done my best with the material that I have been provided to date.  That material specifically is a number of observations contained in the child’s 2010 exercise book, those observations being recorded by date.  The father alleges that much of the problems emerge on a Monday following the child’s time spent with the mother but in any event, as a general observation, as a consequence of the Orders that he now spend time with his mother each weekend.

7. I have reviewed the materials in that exercise book and it is true to say that on a number of Mondays following the mother spending time with the child there have been a number of alarming incidents of disturbing behaviour by the child and I am able to draw from those materials specifically some very concerning events that occurred on Monday 15 February, Monday 22 February, Monday 1 March, Monday 8 March, Monday 15 March and Monday 22 March 2010.  As Ms McLaren for the mother points out, those same disturbing behaviours though emerged on Monday 29 March 2010 and yet that was a Monday following a time when the mother spent no time with the child at all as it was denied her by the father.

8. It is not possible for me to apply any definitive interpretation to these disturbing behaviours exhibited by the child but I think it would be safe to say that since the evidence received by me earlier in these proceedings, the child’s conduct, general presentation and health have deteriorated.

9. As I said, there are a number of possible explanations.  Those explanations could include me being entitled to attribute all of the blame for the child’s presentation of late to the father or attributing all of his presentation of late to the mother.  It could also be a combination of circumstances that is potentially beyond the control of both parents.  However, I am reluctant to accept that as an explanation and in my view the intensely toxic relationship between the mother and the father in these proceedings is particularly counter productive to the child’s health and best interests. 

10. I am going to change the Orders that I made on 18 February 2010 to reduce the mother’s time to one Saturday each fortnight.  I do that with a great deal of reluctance because it may well be, as I said, that it is not through the mother’s fault that any of this has occurred.   However, even if it is not her fault and it is simply a matter of the child being unable to adjust to a relatively new regime, in my view the evidence at this stage indicates that I must make a change to see if I can relieve the stresses upon the child.  I do so also in a sense supported by the report of Dr B, the Director of Paediatrics at the Royal Darwin Hospital.   He provided a report dated 12 April 2010 which is annexed to the father’s affidavit.  He in fact saw the child on that same day.  He makes a number of observations about the child since he last saw him and particularly makes reference to some disturbing observations indicating a decline in the child’s wellbeing since he last saw him and I quote the last two paragraphs of that report in toto:-

    “The marks from [sic] his hands from recent bites is worse than i [sic] have seen for some time and the problems with the finger and toenails was quite marked with errothema on virually [sic] all nail beds.

    I hope this helps, I have one [sic] again asked to view [the child] in the near future.  It seems to me that there will continue to be ongoing behavoiur [sic] difficulties early in the week, unless the structured environment that is present for most of the week is continied [sic] over the weekend.”

11. Dr B of course received his information to prepare that report only from the father and so it is not surprising that the report would appear slanted in the father’s favour in that regard.  However, I must treat it at face value which is that Dr B has significant concerns for the child’s wellbeing and presently takes the view, without any other evidence being available to him, that some attempt to return to the previously structured routine is appropriate.

12. Ms Elliott did not take a definitive stand in relation to the application of the father.  I think she quite rightly takes the view that there is insufficient material before the Court presently to be definitive about it but if I was inclined to reduce the mother’s time to one day per fortnight she would not speak against it presently.

13. What is now to happen though is that there is to be a conference between the parents conducted at the child’s school.  The aim and the intention of that conference, among other aims and intentions, no doubt is to endeavour to improve the child’s lot and find some common ground that may assist the child to return to the state of showing regular improvement in his schooling which was the evidence provided to me at trial.  I have very little confidence that the parties will be able to work together in order to do the right thing by the child.  However, I believe that I need make that attempt and offer the parties this one last opportunity to demonstrate that they can put aside their own personal differences and extreme distaste for one another and focus on what are the child’s needs as distinct from their own. 

14. The family conference, as I understand it from Ms Elliott, can be conducted quite promptly. I will therefore provide an adjournment date but also afford liberty to the Independent Children’s Lawyer to apply in the event that additional material for the Court’s consideration becomes available earlier.  That additional information, I understand it, will also include further evidence from Ms H.

15. There is also an application by the father that any blood testing requested of him by the Independent Children’s Lawyer pursuant to my Orders made on 18 February 2010 be conducted at the Royal Darwin Hospital or the Darwin Private Hospital.  He has annexed to the second of his Affidavits filed on 12 April 2010 some notes from the hospital’s Emergency Department dated 21 November 2002 and 9 April 2003 indicating that he suffers needle phobia.  I therefore accept that the safest avenue for him to provide blood for testing as directed by the Independent Children’s Lawyer would be at the Royal Darwin Hospital or the Darwin Private Hospital.

I certify that the preceding fifteen (15) paragraphs are a true copy of the Ex tempore reasons of the Honourable Justice Burr

Associate: 

Date: