FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PARKINSON & LOFTS | [2009] FMCAfam 155 |
| FAMILY LAW – Children – autistic child – where parties have very different approaches to medical and management issues associated with child's autism – where mother has more "traditional" approach and father has more "alternative" approach – where parties have been unable to communicate effectively – where there has been serious and entrenched parental conflict – where mother granted sole parental responsibility for child's health and all medical and dental issues, including management of child's autism – where both parties granted equal shared parental responsibility for all other major long term issues – where child is to live with mother and spend time with father. |
| Family Law Act 1975 (Cth), Part VII ss.4(1), 60B, 60B(1), 60B(2), 60B(3), 60CA, 60CC, 60CC(2), 60CC(3), 60CC(4), 60CC(4)(c), 60CC(4A), 60CC(5), 61DA, 61DA(2), 61DA(3), 61DA(4), 64B, 64B(3), 65A(1), 65DAA(1), 65DAA(2), 65DAA(3), 65DAA(5), 65DAC, 65DAE |
| A v A: Relocation Approach (2000) 26 FamLR 382 Mosby's Dictionary of Medicine, Nursing and Health Professions (Elsevier Australia – 1st Australian and New Zealand edition, 2006) |
| Applicant: | MR PARKINSON |
| Respondent: | MS LOFTS |
| File Number: | MLM 2539 of 2005 |
| Judgment of: | Walters FM |
| Hearing dates: | 12, 13, 14 & 29 June 2007, 2, 3, 4 & 5 June 2008 |
| Date of Last Submission: | 11 July 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 6 March 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Cranenburgh |
| Solicitors for the Applicant: | Legal Help Lawyers, [E] |
| Counsel for the Respondent: | Mr Hebblewhite |
| Solicitors for the Respondent: | Taylor Whelan & Whelan |
| Counsel for the Independent Children’s Lawyer: | Mr James |
| Solicitors for the Independent Children’s Lawyer: | O’Farrell Robertson McMahon |
ORDERS
In these orders:
(a)"the child" means [X] born in 2002;
(b)"Medical Professional" means any medical practitioner or medical or allied health professional;
(c)"Medical Intervention" means any form of medication or medical or allied health treatment, therapy or testing whatsoever;
(d)"the Listed Therapies" means the following:
(i)heavy metal detoxification or chelation therapy (however described);
(ii)organic colloidal minerals; and
(iii)Epsom salt baths;
(e)"the Expert" means Prof Bruce Tong, Psychiatrist of Woodend, or such other psychiatrist, psychologist or counsellor with experience in autism disorder as shall be nominated by the Independent Children's Lawyer;
(f)"the Consultation Program" means advice, assistance and guidance to be obtained by and provided to the father with respect to issues associated with the management of the child's autism;
(g)"[F]" means [F] Contact Centre…
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- AGLC
- Parkinson and Lofts [2009] FMCAfam 155
- Case
- [2009] FMCAfam 155
- Decision Date
CaseChat Overview and Summary
The court had to decide on the allocation of parental responsibility and the specific terms of parenting orders, particularly regarding medical interventions and the child's schooling. The court was also required to determine the specific schedule for the father's visitation rights and the conditions under which these visitations would occur, including periods of supervision and the circumstances under which they would be suspended or modified.
The court's reasoning involved balancing the best interests of the child with the rights and responsibilities of both parents. The decision emphasized the importance of a structured and supervised visitation schedule for the father, with specific conditions for medical interventions and schooling. The court also stressed the need for clear communication between the parents and the avoidance of exposing the child to parental disputes. The final orders discharged previous parenting orders, allocated primary residence with the mother, and set out detailed arrangements for the father's visitation rights, medical intervention restrictions, and schooling requirements. The orders also included provisions for mediation, supervision, and specific holiday arrangements to ensure the child's well-being and stability.
Orders
Orders of the court
1.
In these orders:
(a) "the child" means [X] born in 2002;
(b) "Medical Professional" means any medical practitioner or medical or allied health professional;
(c) "Medical Intervention" means any form of medication or medical or allied health treatment, therapy or testing whatsoever;
(d) "the Listed Therapies" means the following:
(i) heavy metal detoxification or chelation therapy (however described);
(ii) organic colloidal minerals; and
(iii) Epsom salt baths;
(e) "the Expert" means Prof Bruce Tong, Psychiatrist of Woodend, or such other psychiatrist, psychologist or counsellor with experience in autism disorder as shall be nominated by the Independent Children's Lawyer;
(f) "the Consultation Program" means advice, assistance and guidance to be obtained by and provided to the father with respect to issues associated with the management of the child's autism;
(g) "[F]" means [F] Contact Centre in Bendigo;
(h) “Term Holidays” means the “short” school holidays at the end of first, second and third term in each school year;
(i) “Summer Holidays” means the “long” Summer school holidays, between the end of one school year and the beginning of the next; and
(j) all school holidays, whether Term Holidays or Summer Holidays, shall be deemed to:
(i) commence at the completion of school on the last day of the school term; and
(ii) conclude at the commencement of school on the first day of the next school term.
2.
Save for paragraphs 8 and 9 of the orders made in this Court on
20 October 2006
(which orders relate to the removal of the child from the jurisdiction), all previous parenting orders relating to the child be discharged.
3.
The child live with the mother.
4.
Subject to paragraph 5 below, the mother and the father have equal shared parental responsibility for the child.
5.
The mother have sole parental responsibility for the child in relation to the child's health and health care, and all medical and dental issues (including management of the child's autism).
6.
The father, his servants and agents, be restrained by injunction from taking the child to or having the child seen by any Medical Professional without the written consent of the mother having first been obtained, save for the purposes of medical attention which is required on an urgent basis, in which case the father must immediately notify the mother of the following details:
(a) the name and contact details of the Medical Professional;
(b) the medical complaint for which the child was taken to the Medical Professional;
(c) any treatment and/or medication prescribed for or provided to the child; and
(d) the reasons for the prescription for or provision of such medication and/or treatment.
7.
Subject to paragraph 8 below, the father, his servants and agents, be restrained by injunction from administering, giving or providing the child with any form of Medical Intervention, including, but not limited to, the Listed Therapies, without the written consent of the mother having first been obtained.
8.
The injunction contained in paragraph 7 above does not apply to Medical Intervention administered, given or provided to the child on an urgent basis by or upon the direct advice of a Medical Professional– provided that such Medical Intervention does not include or involve the Listed Therapies or any of them (in relation to which the injunction contained in paragraph 7 continues to adhere).
9.
Subject to paragraphs 10, 11 and 12 below, the father spend time with the child as follows:
(a) from the date of the within orders until 17 April 2009: from 10 a.m. to 5 p.m. each Saturday;
(b) thereafter, and until 16 October 2009:
(i) each alternate weekend from 10 a.m. on Saturday to 5 p.m. on Sunday; and
(ii) each other week from after school (or 4 p.m. in the event of a non school day) on Thursday to the commencement of school (or 9 a.m. in the event of a non school day) on Friday;
(c) thereafter:
(i) subject to paragraphs 24 and 25 below, each alternate weekend from after school (or 4 p.m. in the event of a non school day) on Friday to 5 p.m. on Sunday; and
(ii) subject to paragraphs 24 and 25 below, each other week from after school (or 4 p.m. in the event of a non school day) on Thursday to the commencement of school (or 9 a.m. in the event of a non school day) on Friday;
(iii) for four consecutive days during all Term Holidays –
(A) commencing at 5 p.m. on the second Sunday after the completion of the preceding school term (and concluding at 5 p.m. on the following Thursday) in 2010 and each alternate year thereafter; and
(B) commencing at 5 p.m. on the first Sunday after the completion of the preceding school term (and concluding at 5 p.m. on the following Thursday) in 2011 and each alternate year thereafter;
(iv)
for four days during the Summer Holidays in 2010/11 and 2011/12, commencing at 5 p.m. on the first Sunday after
31 December and concluding at 5 p.m. on the following Thursday; and
(v) for five days during the 2012/13 Summer Holidays, and in all Summer Holidays thereafter, commencing at 5 p.m. on the first Sunday after 31 December (and concluding at 5 p.m. on the following Friday).
(d) notwithstanding all other provisions of the within orders:
(i) on the child's birthday in each alternate year commencing 2010, provided that:
(A) if the child's birthday falls on a school day, then contact pursuant to this provision shall be from after-school on the child's birthday until the commencement of school on the following morning (or 9 a.m. in the event of a non school day); and
(B) if the child's birthday falls on a non school day, then contact pursuant to this provision shall be from 10 a.m. on the child's birthday until the commencement of school on the following morning (or 9 a.m. in the event of a non school day).
(ii)
from 5 p.m. on the day before Father's Day until 5 p.m. on Father's Day each year (so that the child spends the said
24-hour period with the father);
(iii) the father's time with the child be suspended from 5 p.m. on the day before Mother's Day until 5 p.m. on Mother's Day in each year (so that the child spends the said 24-hour period with the mother);
(iv) from 4 p.m. on Christmas Eve to 4 p.m. on Christmas Day in 2009, and in each alternate year thereafter (so that the child spends the said 24-hour period with the father);
(v) the father's time with the child be suspended from 4 p.m. on Christmas Eve to 4 p.m. on Christmas Day in 2010, and in each alternate year thereafter (so that the child spends the said 24-hour period with the mother);
(vi) from 4 p.m. on Christmas Day to 4 p.m. on Boxing Day in 2010, and in each alternate year thereafter (so that the child spends the said 24-hour period with the father);
(vii)
the father's time with the child be suspended from 4 p.m. on Christmas Day to 4 p.m. on Boxing Day in 2009, and each alternate year thereafter (so that the child spends the said
24-hour period with the mother); and
(e) at such other times as shall be agreed between the father and the mother in writing.
10.
Subject to paragraphs 11 and 12 below, the father's time with the child referred to in paragraph 9 above must be supervised at all times by Mr P (or, in the event of his unavailability, by either Ms M or Ms P) or by such other person as shall be agreed between the father and the mother in writing.
11.
The father must –
(a) forthwith, and as soon as an appointment becomes available, consult with the Expert for the Consultation Program;
(b) continue to attend upon and consult with the Expert throughout the Consultation Program, and for such period as the Expert shall consider appropriate;
(c) comply with all directions given and requests made by the Expert throughout the Consultation Program; and
(d) pay all costs associated with the Consultation Program as and when they shall full due.
12.
Upon the father providing to the mother a written recommendation from the Expert that unsupervised contact or time should commence (whether in conjunction with the father attending the Consultation Program or otherwise), the requirement for supervision in paragraph 10 above be forthwith discharged and the father do commence to spend unsupervised time with the child in accordance with paragraph 9 above.
13.
Subject to paragraphs 14 and 15 below, and unless the parties otherwise agree in writing, changeovers for the purpose of the father spending time with the child (where such changeovers do not take place at the child's school) must take place on the footpath directly in front of the main entrance to the [address omitted], Bendigo, and both parties must leave the area immediately after each changeover has occurred.
14.
The mother and the father must forthwith do all such acts and things and sign all such documents as shall be necessary to apply to the [F] to have changeovers between the parties (where such changeovers do not take place at the child's school) facilitated at [F].
15.
In the event that [F] accepts an application by the father and the mother to facilitate changeovers, then in lieu of paragraph 13 above, and unless the parties otherwise agree in writing, changeovers (where such changeovers do not take place at the child's school) must take place at [F] at the times specified in paragraph 9 above, or at such other equivalent times as nominated by [F] (in order to ensure that the father spends the same time with the child, or as close to the same time as is practicable in all the circumstances) in consultation with the parties.
16.
Subject to paragraph 17 below, and unless the parties otherwise agree in writing, the father and the mother must communicate with each other in relation to issues involving the child by SMS text messages or by the communication book which each party will sign at changeover, and both parties be restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other parent (or any member of the other parent’s household) in such SMS text messages or in the communication book.
17.
If the parties seek to discuss issues in relation to which they have equal shared parental responsibility, then, unless the parties otherwise agree in writing, the parties must both attend mediation at an approved Family Dispute Resolution/Mediation or Relationship Centre, or with a Family Dispute Resolution Provider listed on the Attorney-General's Family Pathways website, with the cost of any such mediation to be paid equally by the father and the mother.
18.
The mother must:
(a) keep the father advised, at all times, of her current residential address and contact telephone or landline and mobile number;
(b) advise the father in writing of any change of address or contact telephone number/s within seven days of any such change;
(c) advise the father immediately in the event of the child suffering from any serious illness or injury;
(d) authorise any medical practitioner upon whom the child may attend from time to time to communicate with the father in relation to the child's medical condition and/or requirements; and
(e) ensure that, except for the purposes of the child obtaining urgent medical or dental treatment, or pursuant to the direction of the school, the child:
(i) attends the [B] Special School (or such other school as the child shall attend from time to time) on each school day;
(ii) arrives promptly at the start of each school day; and
(iii) remains at school until the end of each school day.
19.
The father must:
(a) keep the mother advised, at all times, of his current residential address and contact telephone or landline and mobile number;
(b) advise the mother in writing of any change of address or contact telephone number/s within seven days of any such change;
(c) advise the mother immediately in the event of the child suffering from any serious illness or injury;
(d) authorise any medical practitioner upon whom the child may attend from time to time to communicate with the mother in relation to the child's medical condition and/or requirements; and
(e) ensure that, except for the purposes of the child obtaining urgent medical or dental treatment, or pursuant to the direction of the school, the child:
(i) attends the [B] Special School (or such other school as the child shall attend from time to time) on each school day;
(ii) arrives promptly at the start of each school day; and
(iii) remains at school until the end of each school day.
20.
In the event of the child missing school for medical or dental reasons, the parent in whose care she is at the time must forthwith provide the school and the other parent, with a medical/dental certificate explaining the reason for the absence.
21.
Subject to the requirements of the [B] Special School (or such other school as the child shall attend from time to time), both parents be at liberty to attend parent-teacher interviews and school events to which parents are normally invited, and to receive school reports and other information normally provided to parents.
22.
The mother, her servants and agents be restrained by injunction from:
(a) abusing, insulting, belittling, rebuking or otherwise denigrating the father; and
(b) discussing these proceedings,
to, with or in the presence or hearing of the child, and from permitting any other person to do so.
23.
The father, his servants and agents be restrained by injunction from:
(a) abusing, insulting, belittling, rebuking or otherwise denigrating the mother; and
(b) discussing these proceedings,
to, with or in the presence or hearing of the child, and from permitting any other person to do so.
24.
Subject to paragraph 9(d) above, the father's time spent with the child pursuant to paragraph 9(c)(i) and (ii) above be suspended during all Term Holidays (commencing in 2010), and do resume after such holidays in an unbroken cycle as if such holidays had not occurred.
25.
Subject to paragraph 9(d) above, the father's time spent with the child pursuant to paragraph 9(c)(i) and (ii) above be suspended during all Summer Holidays (commencing with the Summer Holidays in 2010/11) as follows:
(a) in the 2010/11 and 2011/12 Summer Holidays – for one week immediately after the four day period during which the child shall spend time with the father (in other words, from 5 p.m. on the Thursday that the child is returned to the mother to 5 p.m. on the following Thursday), so that the child spends the said one week period with the mother;
(b) in the 2012/13 Summer Holidays (and in all Summer Holidays thereafter) – for one week immediately after the five day period during which the child shall spend time with the father (in other words, from 5 p.m. on the Friday that the child is returned to the mother to 5 p.m. on following Friday), so that the child spends the said one week period with the mother,
but not otherwise be suspended, and the father's time spent with the child pursuant to paragraph 9(c)(i) and (ii) above do occur before and/or after such block periods with the mother and the father in an unbroken cycle, and as if such block periods with the mother and the father had not occurred.
26.
The Independent Children's Lawyer be at liberty to provide a copy of these orders to any of the following:
(a) the principal or delegate of the principal of the school attended by the child;
(b) all medical practitioners and/or allied health professionals attending upon the child;
(c) all counsellors of the child; and
(d) all psychiatrists, psychologists or counsellors that either party may attend or consult pursuant to these orders.
27.
The Expert and any medical professional who are currently or have previously treated the child be at liberty to consult with each other regarding matters relevant to the implementation of these Orders.
28.
The order for the appointment of the Independent Children's Lawyer be discharged with effect from:
(a) the date upon which the father provides to the mother the written recommendation from the Expert to the effect that unsupervised contact or time should commence (whether in conjunction with the father attending the Consultation Program or otherwise), thereby causing the requirement for supervision in paragraph 9 above to be discharged and permitting the father to commence spending unsupervised time with the child; or
(b) 1 October 2009,
whichever shall first occur.
29.
All extant applications otherwise be dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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