McMurr and Sheill
[2014] FamCA 327
FAMILY COURT OF AUSTRALIA
| MCMURR & SHEILL | [2014] FamCA 327 |
| FAMILY LAW – CHILDREN – Interlocutory issue as to child’s schooling - Where the father seeks that the child participate in a special education placement – Where the mother failed to file a response to the father’s application despite the Court’s directions to do so and where the mother absented herself at the time the matter was heard - Where the Court has previously considered the background of the matter including parental responsibility, the child’s attendance upon a number of professionals in respect of his developmental needs and each parent’s attitude in respect of the child’s development – Application granted. |
Family Law Act 1975 (Cth) ss 60CC
| Marvel & Marvel (No. 2) [2010] FamCAFC 101 |
| APPLICANT: | Mr McMurr |
| RESPONDENT: | Ms Sheill |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Hafey |
| FILE NUMBER: | SYC | 5250 | of | 2007 |
| DATE DELIVERED: | 14 April 2014 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 14 April 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Schroder |
| SOLICITOR FOR THE APPLICANT: | Watts McCray Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Battley |
| SOLICITOR FOR THE RESPONDENT: | Wilshire Webb Staunton Beattie Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Legal Aid NSW Parramatta |
Orders
The Applicant Father is authorised to sign the offer of special placement education to the exclusion of the Respondent Mother so as to enable the child D McMurr born … 2005 to attend the autism intervention program at X Public School.
The Applicant Father’s costs of the application made today are reserved.
Liberty is granted to the Independent Children’s Lawyer to re-list the matter on short notice by application to the Court in Chambers in appropriate circumstances.
it is noted that
(A)At the commencement of the proceedings today there was no appearance by the Mother although her counsel Mr Battley who appeared on her behalf on 11 April 2014 sought leave to withdraw on the basis of no further instructions and that leave was granted.
IT IS NOTED that publication of this judgment by this Court under the pseudonym McMurr & Sheill 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 PARRAMATTA |
FILE NUMBER: SYC 5250 of 2007
| Mr McMurr |
Applicant
And
| Ms Sheill |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
These are interim parenting proceedings commenced by the Applicant father by Application in a Case filed on 10 April 2014. Relevantly, the Applicant father seeks the following order:
That the Applicant Father is authorised to sign the Offer of Special Education Placement, to the exclusion of the Respondent Mother, to enable [the child D] to attend the Autism Intervention Program at [X] Public School.
On 11 April 2014 the father’s Application in a Case was listed on short notice. The mother was represented by Mr Battley of counsel and the mother was present in person. The mother sought time to file a response and an affidavit to be relied on by her in respect to the discrete issue for determination.
With the consent of the mother’s counsel it was ordered that the mother file a response and any affidavit sought to be relied on by her by 9.30 am on 14 April 2014.
The mother informed the Court that she was to be absent on holidays with the child on 14 April 2014 and she was informed that, provided she gave appropriate instructions and was represented, the application could be dealt with on the papers.
At the commencement of the proceedings on 14 April 2014 there was no appearance by the mother, although her counsel who appeared before this Court on 11 April 2014, Mr Battley, sought leave to withdraw on the basis of no further instruction had been received from the mother and that, in default of the Court’s directions, no documents had been filed by her in response to the application. That leave was granted.
The father’s application proceeded to determination in her absence.
The child, the subject of these proceedings, is D McMurr (“the child”), born in 2005.
Previous interim Orders were made on 4 September 2013 by Johnston J as follows:
Pending further order:
(1) The parents shall have equal shared parental responsibility for the child [D McMurr] (“[the child]”) born … 2005.
(2) [The child] continue his schooling at [N] Public School or such other school as the parties agree in writing from time to time.
(3) The parties be restrained from withdrawing [the child] from a school or changing his school without the written consent of the other party.
(4) The parties do all things and sign all documents necessary to:
(a) follow the recommendations by [the child’s] school in relation to the implementation of any Individual Education Plan for [the child] proposed by [the child’s] school, if any; and
(b) enable [the child’s] school to access funding available to assist the school in [the child’s] education, including but not limited to, the provision of a special needs teacher, if same was to be recommended and sought by the school.
(5) The parties shall do all things and sign all documents necessary to enable both the Father and the Mother to communicate with [the child’s] school and obtain all information and copies of documents from the school as he/she may request in relation to [the child]. Such information and copies of documents shall include but not be limited to all school reports, school photographs, school counsellor’s notes, memos, school newsletters.
(6) Each party keep the other party informed of any medical issues involving [the child], particularly of any medical attention or treatment. The parties will do all things necessary to retain Dr [H] as [the child’s] sole treating GP. In the event Dr [H] is not available to see [the child], the parties will do all things necessary to have [the child] attended to by another doctor at Dr [H’s] surgery. In relation to specialist treatment for [the child], the parties shall not engage a further specialist for [the child] without either the prior written consent of either party or upon the written recommendations of Dr [H]. The Independent Children’s Lawyer be at liberty to provide Dr [H] with a copy of the Report by Dr [T].
(7) Each party provide to the other party copies of all medical reports already received and in relation to future reports as soon as they have been received.
Background circumstances in relation to these proceedings generally are more fully set out in the reasons for Judgment delivered by Johnston J on 4 September 2013 (McMurr & Sheill [2013] FamCA 821). Relevantly, they are set out below as follows (commencing at [7] of his Honour’s Judgment):
Background
7.The father, 33 years, and the mother, 41 years, commenced cohabiting in January 2002. They married [in] May 2005 and separated on 29 September 2006. They were divorced on 7 October 2009.
8.At the time of their separation, [the child] was approximately 13 months old.
9.The father said that since the parties separated the mother has made most of the important decisions, particularly concerning [the child’s] medical treatment and his education, unilaterally. I must say, at least at this interim stage, there would appear to be some force in this assertion.
10.In late 2008 the mother made an appointment to see a Dr [G].
11.In January 2009 [the child] was admitted to hospital for a bronchial infection and was treated by a Dr [GG] who noticed what he thought were development delays and referred the child to a Mr [L], developmental psychologist.
12.In February 2009 the father arranged an appointment for [the child] with a Dr [W], paediatrician. Dr [W] said that in her opinion [the child] had decreased language skills for his age, that he used a large amount of unintelligible jargon and that he emitted high pitched shrieks of protest. She had the opinion that [the child] had a significant global developmental delay in the lower moderate range. There was some suggestion that he might have characteristics consistent with autistic spectrum disorder.
13.Dr [W] said that [the child’s] highest priority was speech therapy and that he should be regarded as a special needs child for the purposes of pre-school. Dr [W] recommended that the family contact Autism Spectrum Australia for consideration of the home-based Building Blocks Program in 2010. Dr [W] recommended further assessment of [the child] in 2010.
14.Apparently the mother was disinclined to accept this opinion. The mother asserted that Mr [L] concluded that [the child] did not meet the criteria to place him on the broad spectrum of autistic disorders but there were a number of behavioural concerns, including mild developmental delay at global level, his speech and social/emotional development were immature and he had a tendency towards oppositional and defiant behaviour.
15.In March 2009 a Ms [C], senior speech and language pathologist, reported severe receptive and expressive language delay and disorder, inappropriate verbal and non-verbal behaviours accompanied by a lot of oppositional anger, no indication of autism spectrum disorder but a recommendation that pre-school apply for funding to provide classroom support.
16.Each of the parents took the recommendation for speech therapy seriously. Unfortunately each of them arranged for a different speech therapist for [the child].
17.In March 2009 [the child] commenced at [SS] Pre-School/ Kindergarten.
18.In May 2009 Dr [GG], paediatrician, had the view that there were not sufficient behavioural criteria for a diagnosis of autism. In March 2010 [the child] was referred by Dr [GG] to the child development unit at the Children’s Hospital... That unit expressed the view that the child’s qualitative impairment in communication, socialisation and behaviour was consistent with a DSM-IV diagnosis of autistic disorder. The unit recommended the parents contact an autism adviser, that the child would benefit from integration support within his pre-school and ongoing speech therapy. The unit also reported that the child would require significant integration support if he was to be placed in a mainstream kindergarten class in 2011.
19.The mother did not accept this diagnosis and sought psychometric testing for the child from clinical psychologist Dr [B]. In May 2010 Ms [B] opined that the child’s general intellectual ability was in the average range, that he required intensive and ongoing speech therapy, that he would benefit from occupational therapy and that he would benefit from attendance at a child psychologist who assists in management of aggression and frustration.
20.In February 2011 [the child] commenced school at the [R] School. There were a number of behavioural difficulties including a considerable number of outbursts of aggression and distress by [the child]. Unfortunately in March 2011 [the child] was hospitalised with tonsillitis and a high fever. Ultimately the child was referred to a paediatrician, Dr [U] who said that [the child] was CMV positive and had systolic heart murmur but there was no evidence of congestive heart failure.
21.In early May 2011 the school prepared an Individual Educational Plan for [the child]. This specified various difficulties which the teachers had encountered, recommended regular occupational therapy to assist with his pencil grip and hand-writing, speech therapy as well as the need for the parents to confirm their support for the plan.
22.The mother did not support the plan. She said that it took place without her knowledge or permission and made no reference to the child suffering from anxiety which she thought directly impacted upon the assessment. In June the mother responded to an invitation from the school to attend to discuss an issue with the teaching staff. It was her understanding that a new individual Educational Plan would be prepared including the involvement of [the child’s] treating medical professionals. A revised individual Educational Plan was prepared in late July 2011.
23.In August 2011 the mother took it upon herself to decide that she would add Dr [J] to the already considerable number of professionals involved in the care of [the child]. She consulted Dr [U] about this. He indicated that Dr [J] was a paediatrician specialising as a paediatric general medical practitioner. Without consulting the father, the mother made an appointment for [the child] with Dr [J] for the end of August 2011.
24.In September 2011 the school had decided to discontinue [the child’s] enrolment there. The Principal made it clear to the parents that they had arrived at this position for the following reasons:
·The school still did not have a copy of the Individual Educational Plan signed by the mother;
·The school was unable to meet [the child’s] educational needs without such a Plan being in place and supported by both of his parents;
·Difficulties in achieving cooperative outcomes; and
·Breakdown of the mutual trust and confidence expected between the parent and the school.
25.This followed the mother’s attendance at a meeting at the school accompanied by [the child’s] speech pathologist who asserted that the Individual Educational Plan was not appropriate for the child.
26.In November 2011 [the child] had his tonsils removed.
27.In February 2012 [the child] commenced at the [N] Public School.
28.On 3 May 2012 the parents consented to the making of an order that Dr [T] of the Children’s Hospital be appointed as Chapter 15 Expert to conduct a full paediatric assessment of [the child]. Dr [T] interviewed the parents in October 2012, met the staff at the child’s school including class teacher, the school principal and the school counsellor. Amongst other matters, Dr [T] observed that it was clear from the start of [the child’s] attendance at [N] Public School that there were major concerns by the school officials about his ability to integrate into the main stream school environment. He was very distressed and highly anxious and was not coping with the school curriculum. He was not interacting with his peer group and he usually played on his own. He was observed to have severe language and communication difficulties. He was hard to understand. He found it hard to play interactively. He did not know the other children’s names. Most of the time he had been in his own world. He had very limited ability to read or to interpret other people’s facial expressions.
29.Dr [T] observed that as recently as the week before his school visit, [the child] had three major outbursts of screaming. There had been a significant incident in June where he was aggressive towards another child. As a result of the school counsellor’s intervention further funding was applied for in order to provide [the child] with better support. The mother disagreed with the report and refused to allow the application for the funding.
30.There was another aggressive incident in August resulting in a three day suspension. Apparently the Principal considered that because [the child] was not classified as a child with any special needs, even though it was clear at school that he was not coping, there was no alternative to the suspension even though the school recognised this was not the best way to manage [the child’s] behaviour. The clear view of the school was that [the child] would need ongoing active support to enable him to remain integrated into the mainstream school environment. The school said he was unable to cope in the playground and appeared to be more distressed with time.
31.Dr [T] said that the school was clearly distressed about [the child’s] emotional well-being. He gained the distinct impression that they were frustrated at not being able to meet his needs because of major disagreements between [the child’s] parents and the teachers’ frustration was quite genuine. The parent’s disagreements appeared to be causing a considerable level of stress for [the child], whom Dr [T] said has general developmental problems.
32.Dr [T] said that [the child] has a significant speech and language communication disorder. Since starting school, he has had great difficulties integrating successfully and has remained socially isolated and distressed. Dr [T] said that [the child] has displayed a number of autistic mannerisms over the years and that these persist. He said that [the child] presents as a very distressed boy emotionally, with high levels of anxiety which Dr [T] thinks is the product of the complex and long-standing level of stress and family dysfunction coupled with his significant communication difficulties, his social awkwardness and learning problems.
33.Dr [T] said that, in the light of considerable clinical evidence, he was surprised by the level of the mother’s apparent denial of the degree of concern reported by a range of health clinicians and staff within the education system. Dr [T] said it is likely that the mother does recognise these problems because [the child] is receiving speech therapy, but that she has reframed the interpretation of the symptoms [the child] demonstrates.
34.Dr [T] said in his opinion [the child] sits on the spectrum of autism but in some respects the diagnosis of autism is a moot point. He said that the fact that [the child’s] parents have adopted almost diametrically opposite views of [the child’s] problem places enormous pressure on him emotionally. He said as a consequence, [the child] is suffering significantly at the hands of the parental intransigence.
35.On 4 September 2013 these interim proceedings were relisted by the father, who sought leave to re-open his case. Leave was not opposed, and in the circumstances, I accepted into the evidence an affidavit by the father sworn on 21 August 2013 and an affidavit by the mother sworn on 3 September 2013.
36.The mother indicated that she had taken [the child] to Dr [U], paediatrician, on 29 July 2013 for a check-up. The mother informed Dr [U] that Dr [T] had not diagnosed [the child] as having autism and they had some discussion about the Diagnostic and Statistical Manual 5.
37.The father annexed Dr [U’s] report dated 1 August 2013 to his affidavit. The report referred to the mother having informed Dr [U] that Dr [T] had not made a conclusive finding regarding autism spectrum disorder.
38.Dr [U] also noted that [the child] was no longer seeing a psychologist or speech therapist. Dr [U] also noted that [the child] had been progressing well with no significant medical problems over the previous six months. He said that [the child] would continue to need learning support as indicated in his recent school report.
…
44.The appropriate course would be to endeavour to put in place as much of the recommendation by Dr [T] as would be possible. This would best be reflected in the alternate proposal in the minutes of orders sought by the father filed in Court on 6 August 2013, with modification at paragraph 4.1. This is in general terms that [the child] would continue his schooling at [N] Public School and that the parents would be required to follow the recommendations of the school in relation to implementation of any Individual Education Plan for [the child] proposed by the school. It would be critical for the parents to support whatever action needed to be taken by the school to obtain appropriate funding to assist the school in [the child’s] education, particularly in relation to provision of a special needs teacher.
Dr [T’s] recommendation
45.Dr [T] said that ideally there should be a meeting of all professionals involved in [the child’s] ongoing care to highlight his current problems and map out an ongoing management plan. The meeting would identify key professionals who would remain involved in his care and with whom information would be shared openly and consistently. He said that as a minimum there should be a paediatrician, a speech pathologist, a psychologist and relevant members of the education system who can work professionally and openly with the parents and who are not unwittingly colluding with one or the other parental point of view.
46.Dr [T] recommended the family work with an independent psychologist including an attempt to clarify the incongruities in perception about [the child’s] developmental problems and the mother’s apparent reluctance to acknowledge the reality of his difficulties.
47.Dr [T] said that the term autism can evoke highly emotive reactions. He said that he personally would tend to avoid the term autism but use the construct of autism as a framework in which to formulate intervention as it allows a range of intervention strategies to be used with confidence and with validity.
48.Dr [T] said that he was impressed with the staff at [N] Public School and the level of concern and interest about meeting [the child’s] needs. He said that in his view the public school system has a lot to offer for children with special needs and more resources than most private school systems. He said that all school systems require diagnostic labels to attract appropriate funding.
Conclusion
49.In conclusion I accept the general thrust of the recommendation by Dr [T] and regard the alternative proposal put by the father in his minute of orders filed in Court at the hearing as being the proposal most likely to meet the child’s needs.
50.Clearly the father has been a very concerned parent and most anxious to endeavour to support the child with the best professional assistance that can be provided. If the child was living primarily with his father there would be something to be said for the father’s application that he enjoy sole parental responsibility for the child’s education and medical decisions. But this is clearly not the case and the father and child have limited time together. The reality is that the mother is the child’s primary parent and she is responsible for taking the child to and from school each day. It would be completely impracticable to have a situation where in circumstances where the mother was doing this, sole responsibility for schooling decisions would be made by the absent father.
51.On the other hand in my view this Court could have reservations about the mother being the repository of sole parental responsibility for decisions about education and medical matters. She appears to have a fixation against [the child] being labelled in a manner which she apparently considers might have some negative connotations for him. She annexed to her affidavit numerous references to literature which suggested that there is generally an over-diagnosis by medical professionals of children suffering autism. Despite the child having been recommended various supports now for some years he has not been provided with the full range of supports which various professionals have recommended would be relevant and of assistance to him. The mother has clearly been unable to co-operate with the authorities at the [R] School to the point where the authorities clearly thought their educational management of [the child] was compromised and that they could not continue to offer him enrolment. Unfortunately to some extent a pattern of similar behaviour by the mother appears to have been experienced by the officials at the [N] Public School. This was evident from Dr [T’s] report that the mother disagreed with the school’s report which had been prepared in the school’s endeavour to obtain funding for teacher support for [the child].
52.In my view, clearly the Court could not have confidence in the mother in all these circumstances as being a person who would be able to co-operate with the authorities at the school at a level which would justify her having sole parental responsibility for these matters. In my view, in all these circumstances, it would be counterproductive and inconsistent with the best interests of [the child] for the mother to have sole parental responsibility for these matters. …
The present application
In support of the application before the Court, the Applicant father relies upon his affidavit filed on 10 April 2014 and his further affidavit filed on 11 April 2014.
The subject child has significant health and developmental issues and the nature and extent of those disabilities have been a robust dispute between the parties. The nature of that dispute is referred to in the reasons for Judgment of Johnston J delivered on 4 September 2013.
The child has been offered the opportunity to take up a place at X Public School, which has a specialist autism and developmental needs placement section for children.
The father was previously authorised by Orders made by Johnston J to do all things necessary and sign all necessary documents on behalf of the mother to enable the child’s school to access funding available to assist the school in the child’s education, including but not limited to the provision of a special needs teacher if same is recommended and sought by the school.
As a consequence of an application made by the school on 17 March 2014 the New South Wales Department of Education has now offered the child a special placement at X Public School (Exhibit A). That placement would see the child continue, in part, his attendance at his present school (N Public School) and on some days of the week attend the special unit at X Public School. The placement required acceptance with seven days of the offer. The father has had the period of acceptance extended to 14 April 2014 to facilitate the Court’s consideration on 14 April 2014.
The nature of interim proceedings has been referred to by the Full Court in Marvel & Marvel (No. 2) [2010] FamCAFC 101.
The relevant principles in relation to parenting and interim parenting proceedings are well settled (Goode& Goode (2006) FamCA 1346).
Issues in relation to parental responsibility and each party’s time with the child had been resolved by reason of Orders made by Johnston J on 4 September 2013, as subsequently varied under the Slip Rule.
The application before the Court is determined by reference to the best interest provisions of the Family Law Act 1975 (Cth) (“the Act”) set out in section 60CC.
The primary considerations are of no utility in regard to the present application.
The Court has had regard to each of the relevant additional considerations in section 60CC(3), in particular:
a)the question of the mother’s capacity to address the child’s emotional and intellectual needs, where her child has been properly assessed by the Department and the father seeks to take up an appropriate placement for the child (s 60CC(3)(f));
b)the child’s particular mental health characteristics referred to above (s 60CC(3)(g)) as they touch upon this child’s particular difficulties, intellectually and developmentally, and the need for appropriate arrangements in terms of education and training; and
c)the mother’s attitude to her responsibilities of parenthood in regard to the child, who has significant issues (s 60CC(3)(i)) where she has absented herself from hearing of an application that requires urgent determination, with the strong inference that she seeks to frustrate the child’s placement.
The father was informed by the child’s school principal that the child had met disability criteria of the Department for autism so as to receive appropriate assistance and that a request for that assistance was made by the school.
The father requested integrated funding to try and keep the child full time at his current school but he was informed that most likely the child would be offered an autism specific class at X Public School, a class of seven students and two specialist staff, for four days per week, with the child to maintain his enrolment in his current school. The child’s current school was refused integrated funding.
The mother was informed of the pending Departmental assessment by letter of 17 March 2014. The same day the child’s school requested same. In response the mother again sought to raise the child’s diagnosis, notwithstanding the matters canvassed by Johnston J in his Judgment delivered in September 2013.
In all of the circumstances, the Court is satisfied that it is in the best interests of the child for the child to be able to take up the offer of placement at X Public School and orders will be made accordingly.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 14 April 2014.
Legal Associate:
Date: 20 May 2014
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