McMurr and Sheill
[2013] FamCA 821
FAMILY COURT OF AUSTRALIA
| MCMURR & SHEILL | [2013] FamCA 821 |
| FAMILY LAW – CHILDREN – Parental responsibility – Where the parties have joint parental responsibility – Where each party seeks to now have the sole parental responsibility about education and medical issues only – Where by consent the child lives with the mother and spends time with the father – Where the child has been seen by numerous medical practitioners – Where it is recommended that the parents implement an Individual Education Plan for the child to provide appropriate funding for a special needs teacher for the child. |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr McMurr |
| RESPONDENT: | Ms Sheill |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid New South Wales |
| FILE NUMBER: | SYC | 5250 | of | 2007 |
| DATE DELIVERED: | 4 September 2013 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Johnston J |
| HEARING DATE: | 6 August 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Schroder |
| SOLICITOR FOR THE APPLICANT: | Watts McCray Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Mr Viney, solicitor of Wilshire Webb Staunton Beattie Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Hafey of Legal Aid New South Wales |
Orders
Pending further order:
The parents shall have equal shared parental responsibility for the child D McMurr (“the child”) born … 2005.
The child continue his schooling at N Public School or such other school as the parties agree in writing from time to time.
The parties be restrained from withdrawing the child from a school or changing his school without the written consent of the other party.
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.
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.
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.
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.
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
REASONS FOR JUDGMENT
Mr McMurr and Ms Sheill are the parents of the child D (“the child”) who was born in 2005. For convenience I shall refer to them as “the father” and “the mother”.
As a matter of law they have joint parental responsibility in relation to their son. The parents are in dispute about the continuation of this responsibility. Each of them asks the Court to make orders that they have the responsibility for making decisions about the child’s education and medical issues. They agree that apart from these matters the Court should make an order for shared parental responsibility for the child.
The father has a belief based on opinion by a number of qualified medical practitioners and others that the child manifests characteristics which would enable placement of him on the Autism Spectrum. On the other hand the mother, whom I understand is a qualified mental health professional, holds a very strong view that this is not the case.
Applications
The father seeks orders to the following effect:
·That the parents have equal shared parental responsibility for the child excluding the responsibility in relation to decisions about his education and medical issues in respect of which the father is to have sole parental responsibility;
·Alternatively that the parents have equal shared parental responsibility for the child;
·That the child continue his enrolment at N Public School or such other school as the parties agree in writing;
·That the parents be restrained from withdrawing the child from his school, or changing his school without the written consent of the other parent;
·That the parents follow recommendations by the school for implementation of any Individual Education Plan for the child proposed by his school;
·That the parents act in a way to enable the child’s school to access funding available to assist the school in his education, including but not limited to, the provision of a special needs teacher if recommended and sought by the school;
·Various orders in respect of his schooling, medical issues, identification of a general practitioner doctor for him and related matters.
On the other hand the mother seeks orders to the following effect:
·That she have the sole parental responsibility relating to the child’s education and health, but that otherwise the parents have equal shared parental responsibility; and
·That she provide to the father copies of all school reports and related material, all medical reports, as well as providing the father with notice of all medical appointments, recommendations and referrals.
Each of the parents sought orders in relation to the child’s residence with his mother and time to be spent by him with his father. To the parties’ credit, they were able to resolve these latter issues and on 6 August 2013 I made consent orders to provide for the residence and time spent as well as certain specific issues orders.
Background
The brief background matters are as follows. 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.
At the time of their separation the child was approximately 13 months old.
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.
In late 2008 the mother made an appointment to see a Dr G.
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.
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.
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.
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.
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.
Each of the parents took the recommendation for speech therapy seriously. Unfortunately each of them arranged for a different speech therapist for the child.
In March 2009 the child commenced at SS Pre-School / Kindergarten.
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.
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.
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 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 not evidence of congestive heart failure.
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.
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.
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.
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.
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.
In November 2011 the child had his tonsils removed.
In February 2012 the child commenced at the N Public School.
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.
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.
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.
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 parents’ disagreements appeared to be causing a considerable level of stress for the child whom Dr T said has general developmental problems.
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.
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.
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.
On 4 September 2013 these interim proceedings were re-listed 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.
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.
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.
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.
The father’s case
It is submitted on behalf of the father that over almost the entirety of the child’s life he has endeavoured to engage appropriate professional assistance for the child. It is said that his efforts, particularly through his solicitors, to arrange appropriate behavioural supports for the child as recommended by various of the professionals who have been involved with the child, have met with opposition from the mother.
It is submitted that the mother has failed to co-operate with the authorities at the R School in respect of the Individual Educational Plan with the ultimate consequence that the school declined to continue the child’s enrolment at the school. There have been further serious difficulties for the child during the 2012 year at N Public School. Because of the mother’s refusal to accept that the child manifests features of autism and refuses to co-operate with the school authorities presenting such a description for the child in support of their applications for funding to provide specific teacher support, the child has missed out on such support. In all the circumstances it would be in the child’s interests for his father to have the sole parental responsibility for decisions about the child’s education and medical treatment.
The mother’s case
On the other hand there was a strong submission on behalf of the mother that she is in the best position to make decisions about the child’s education and medical treatment. She has been the person who has always taken the child to his medical appointments and made appropriate decisions about medical diagnosis and treatment of the child.
It is clear that the parents have a poor relationship, poor communication and have been unable generally to co-operate in making decisions about the medical management of the child and appropriate supports and interventions in his schooling. In all the circumstances, the mother having been the person who has been most involved in his medical care, she should have sole responsibility for such decisions. The alternative would be simply a continuation of the stress and disruptive and inadequate management of the child’s condition, whatever it might be.
The independent child lawyer (“ICL”)
Ms Christine Hafey submitted that the best outcome for the child is likely to be support of him within the public school system. One of the benefits of him being able to continue in the public school system would be that the school officials would provide an ongoing check of his condition and his needs in circumstances where it is likely that each of the parents will continue to disagree about what his needs are and about appropriate interventions to support him. The ICL would not support either of the parents having sole parental responsibility for medical and educational decisions about the child. To provide one or other with this would give them an inappropriate level of power.
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
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 other parental point of view.
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.
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.
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
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.
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.
On the other hand in my view this Court could have reservations about the mother being the repository of the 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.
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.
I propose to put in place orders generally in accordance with the alternate proposal of the father.
General medical practitioner
Part of the father’s proposal was that the parties retain Dr H as the child’s sole treating medical practitioner. The mother opposed such an order. As indicated above, she has been taking the child to Dr J since August 2011.
It is clear that Dr H has been the child’s general medical practitioner over most years of the child’s life. The mother said that in engaging Dr J she did not really intend to displace assistance from Dr H. The father is opposed to Dr J being substituted for Dr H.
In my view the mother has not made out a case for involving Dr J with the child. In my view the appropriate course is to put in place the order sought by the father with Dr H continuing to be the child’s sole treating general practitioner doctor.
This child has had more than sufficient number of medical professionals. In my view it cannot be in his interests for such a considerable range of professionals to continue to be involved. In an endeavour to have this matter addressed the father has asked the Court for an order that the parties be restrained from engaging a further specialist for the child without either the prior written consent of either party or the written recommendations of Dr H. With a view to endeavouring to contain the number of professionals with whom the child has to engage, I propose to put in place such an order.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 4 September 2013.
Associate:
Date: 25 October 2013
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