McQueen and Daube (No.2)

[2019] FCCA 2983

FEDERAL CIRCUIT COURT OF AUSTRALIA

McQUEEN & DAUBE (No.2) [2019] FCCA 2983

Catchwords:
FAMILY LAW – Application for legal representation under s.102NA – dismissed – interim application for father to have sole parental responsibility for medical decisions for X – comprehensive submissions and medical documents tendered – Independent Children’s Lawyer supports father’s application – application made.

Legislation:

Family Law Act 1975 (Cth) ss.11F, 102NA

Applicant: MR MCQUEEN

Respondent: MS DAUBE

File Number: DGC 1957 of 2007

Judgment of: Judge Harland

Hearing date: 20 September 2019

Date of Last Submission: 20 September 2019

Delivered at: Melbourne

Delivered on: 20 September 2019

REPRESENTATION

The Applicant appearing in person.

No appearance by the Respondent.

Solicitors for the Independent Children’s Lawyer: Ms Kourtis for McKean Park Lawyers

ORDERS

1. The father have sole parental responsibility for medical decisions relating to the child X born … 2007.

2. The application filed pursuant to s.102NA of the Family Law Act 1975 (Cth) be dismissed.

3. All outstanding interim applications be dismissed.

4. The family report interviews are to take place on Sunday 22 September 2019 when the children are in the mother’s care.

5. In the event the mother does not attend with the children to the family report interviews, the Independent Children’s Lawyer be granted liberty to apply to relist the matter to seek final orders be made on an undefended basis and to vacate the trial listed 24 and 25 February 2020.

IT IS NOTED that publication of this judgment under the pseudonym McQueen & Daube (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

DGC 1957 of 2007

MR MCQUEEN

Applicant

And

MS DAUBE

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally. They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. The father makes an oral application pursuant to s.102NA. None of the mandatory provisions apply. The Commonwealth Family Violence and Cross-Examination of Parties Scheme has been set up to deal with matters where there is serious family violence such as to avoid vulnerable persons having to personally cross-examine with respect to family violence issues. There is a range of mandatory matters that apply:

   (1)  If, in proceedings under this Act:

   …

   (c)  any of the following are satisfied:

   (i)  either party has been convicted of, or is charged with, an offence involving violence, or a threat of violence, to the other party;

   (ii)  a family violence order (other than an interim order) applies to both parties;

   (iii)  an injunction under section 68B or 114 for the personal protection of either party is directed against the other party;

(iv)  the court makes an order that the requirements of subsection (2) are to apply to the cross-examination;

then the requirements of subsection (2) apply to the cross-examination.

1. The Court has a discretion if none of those mandatory provisions apply, but I do not have evidence before me that establishes that this is a case where there is violence, such that an unrepresented party should be prohibited from personal cross-examination. The s.11F child inclusive report certainly refers to various issues and vulnerabilities the mother has. The mother has had difficulties participating in the proceedings. There of course are benefits in matters to people having representation if they can and, ideally, for not only the litigants, but for the Court.

2. If every person had a lawyer, the court process would be more streamlined, and there would be a more even playing field, but it would be a misuse of the Scheme to apply it in the circumstances. It is a new Scheme that has been provided some funding with a review mechanism in place. There is going to be a real issue about whether or not that Scheme can continue if too many orders are made under their discretionary provisions. For these reasons, I refuse the application.

3. The second issue I am asked to determine today is whether or not the father should have sole parental responsibility for making medical decisions with respect to X, who has ADHD. Whilst the mother has not filed any material in these proceedings and is not here today, her position is clear in the s.11F memorandum report, and also in the subpoenaed material from the Royal Children’s Hospital, which the Independent Children’s Lawyer has tendered and is exhibit B in the proceedings before me.

4. I also refer to exhibit A which is a comprehensive letter that the Independent Children’s Lawyer has sent to the mother advising her of the orders requiring her to file material, referring to her non-appearance at Court on 11 June 2019, and a reference to her partner informing her that she had had an anxiety attack that morning, and could not come to Court that day. 

5. The letter then outlines the issue in particular with respect to the prescription of Ritalin and advises her of the procedural steps she should take if she wants to seek different orders to the father, and also points to resources of assistance to unrepresented litigants. She is also very clearly put on notice in this letter that orders may be made in her absence if she does not attend Court. As indicated, the mother has not attended Court today. She has been called outside and the Independent Children’s Lawyer has attempted to contact her. I will not repeat the very helpful submissions that the Independent Children’s Lawyer has made in this matter in any detail, given the number of matters I must address today. I am satisfied, having considered the Royal Children’s Hospital records, together with the father’s affidavit, that it is in X’s best interests for the father to have sole parental responsibility with respect to the medical issues for X.

6. It is clear from the hospital material that the parties disagree as to the benefits and harm to X of taking Ritalin on a short-term and long-term basis. The mother has clearly communicated those concerns to the hospital, and it is clear from the course of correspondence and consultations that those concerns have been listened to. The hospital has been in a difficult position with two parents who are unable to agree on this issue, which has meant that, certainly on the evidence, it appears that X is not receiving an optimal dose of the medication because of the stand-off between the parties. I note that when X was asked by the doctor in the absence of his parents in the early consultations about the medication, X spoke about both positive aspects and the negative aspects of that medication. 

7. The material also includes correspondence from school which is consistent with the father’s case that when X has been on a higher dose, his performance at school and ability to concentrate and contribute constructively has improved. When he is on a suboptimal dose of his medication, there have been increasing difficulties at school and, indeed, when he was not on the medication in early 2016, he was actually suspended from school altogether because of his behaviour. It is also recorded in this material that the mother disagrees with the school’s view, and refers to the fact that she and her partner do not see any of these difficulties with X on the weekends. The parties live some considerable distance from each other, such that it is only possible for the mother to have weekends with the children.

8. X does not take Ritalin on the weekends and during school holidays. The difficulty with the mother’s position in this regard is that it would, of course, be expected that given that he is not in that school environment, that there would not be those kinds of issues arising. This is not an indication that the medication does not assist him when he does need to concentrate and participate in school. What is of some concern is that the impasse between the parties has meant that for some months now X is not receiving the dose of the medication that would benefit him, and it seems from the material that the father has wanted to follow the guidance of X’s doctor in this regard. As the Independent Children’s Lawyer was at pains to point out, it may well be that the medication is increased and then decreased. It may be that a different medication is tried. 

9. So the issue is not simply that X be given a higher dose that the mother objects to and that that is the end of it. Rather, it is that this is an example where shared parental responsibility, with respect to the medical issues, is actually detrimental to X’s welfare because it has placed the doctors in a position where they are not able to do anything other than maintain the status quo whilst the parents are in disagreement. The parties’ inability to communicate and co-parent constructively is one of the issues at the forefront of this case and, indeed, the whole case began by way of a recovery order with respect to that very issue. What is also of concern is that the parties’ inability to communicate or co-parent is very evident by the incident at hospital where there was a stand-off between them with X involved for about 40 minutes because they could not agree as to who should be responsible for returning X on the Sunday. 

10. This is one of those cases where it is clear that the distance between the parties makes the position that much more difficult because it is simply not possible for the children to spend substantial and significant time with both parties. It would be ideal for the children if both parties were able to be more actively involved in the children’s weekly routine, being involved with school pickups and drop-offs, and mundane routine parenting activities that parents have to engage in during school terms. These provide a depth to the parenting relationship, whereas that can be more difficult when one parent is limited to the leisure times.

11. For these reasons I am satisfied that it is in X’s interests to make the order that has been signed by the Independent Children’s Lawyer and father.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 18 October 2019