Pedota & Bellans

[2021] FCCA 606

FEDERAL CIRCUIT COURT OF AUSTRALIA

Pedota & Bellans [2021] FCCA 606

File number(s):

SYC 1299 of 2018

Judgment of:

JUDGE B SMITH

Date of judgment:

23 February 2021

Catchwords:

FAMILY LAW – parenting – interim hearing – high parental conflict – children involved – child’s time with father to resume and be unsupervised - mother unilaterally changed child’s school without notice – change based on medical diagnoses of ODD and ADHD – diagnoses based on mother’s history of significant issues at school and home – not indicated in school records – interim stood over part heard for ICL to speak with school Principal and doctor.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Mazorski & Albright [2007] FamCA 520
Banks & Banks (2015) FLC 93-637
Goode & Goode [2006] FamCA 1346
SS & AH [2010] FamCAFC 13
Eaby & Speelman (2015) FLC 93-654
Deiter & Deiter [2011] FamCAFC 82
M v M (1988) 166 CLR 69
Stott and Holgar and Anor [2017] FamCAFC 152
McCall v Clark [2009] FamCAFC 92

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Number of paragraphs:

46

Date of hearing:

23 and 25 February 2021

Place:

Sydney

Counsel for the Applicant:

Ms Lioumis

Counsel for the Respondent:

Ms Swifte

Solicitor for the Independent Children’s Lawyer:

Ms Hernandez

ORDERS

SYC 1299 of 2018

BETWEEN:

MR PEDOTA

Applicant

AND:

MS BELLANS

Respondent

ORDER MADE BY:	JUDGE B SMITH
DATE OF ORDER:	23 FEBRUARY 2021

THE COURT ORDERS THAT:

1.By this Order, the Court authorises Ms Sarah Hernandez, in her statutory capacity as the Independent Children’s Lawyer representing the legal interests of X, born in 2010, to speak with and obtain information from and to provide information to:

(a)any medical practitioner or allied health practitioner treating X, including without limitation Dr C and Mr D, and

(b)any teacher or other employee of any school X attends, or has attended, and in particular to the principal and/or teachers at E School.

for the purposes, inter alia, of ensuring that X’s treating practitioners have a full and accurate history of his behaviours upon which they can base their diagnosis and any treatment plans.

2.By this order the Court also authorises Dr C, Mr D and any of X’s teachers to directly liaise, in order to ensure that X’s medical practitioners have a full, accurate and independent set of information about X’s behaviours.

3.A copy of this order may be provided to any school and/or medical practitioner.

4.Any Application in a Case or Objection to Subpoena made returnable by the Registry from the date of these orders until the next adjourned date will not be heard on that date without the express leave of Judge B Smith.

AND THE COURT NOTES THAT:

A.X has been diagnosed with ADHD and Oppositional Defiant Disorder and medicated, and the mother has unilaterally changed his school, on a recorded history of “significant ongoing issues at his current school” which issues are not clearly identified.

B.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.

AND THE COURT ORDERS THAT:

1.The matter be listed on 25 February 2021 at 2:15PM for part-heard Interim Hearing.

2.That the child Y (“Y’) live with the father.

3.That Y spend time with the mother in accordance with her wishes.

4.That the child X (“X”) live with the mother.

5.That X spend time with the father as follows:

(a)For a period of two (2) months each alternate Saturday and Sunday from 10am to 2pm;

(b)For a further period of two (2) months, each alternate Saturday and Sunday from 10am to 6pm;

(c)For a further period of two (2) months, each alternate Saturday from 10am to 6pm Sunday;

(d)Thereafter each alternate weekend from afterschool Friday until the commencement of school Monday;

(e)For not less than one half of each of the NSW school holiday periods as agreed between the parties but failing agreement for the first half in 2021 and each alternate year thereafter and for the second half in 2022 and each alternate year thereafter.

5.That the father use his best endeavours to encourage Y to FaceTime X on his iPad at least once per week.

6.That the father shall use his best endeavours to ensure that Y attends during his time with X.

7.That the parents shall do all acts and things and pay the fee to sign up for ‘My Family Wizard’ or a similar parenting application.

8.That the parents and children continue to attend upon Ms F, Clinical psychologist at the G Counsellors for the purposes of family therapy.

9.That within 14 days both parents shall do all acts and things to enrol in and complete the parenting course ‘Tuning into teens’ and provide completion of same to the ICL and the other parent’s lawyer.

10.That within 14 days both parents shall do all acts and things to enrol in and complete the parenting course ‘Keeping Kids in Mind’ and provide completion of same to the ICL and the other parent’s lawyer.

11.That each party shall do all things and sign all documents necessary to authorise and direct any school by the children to discuss with the father and mother the children’s school attendance and progress, furnish reports, photos and copies of any correspondence, newsletter or other written material produced by the school and distributed to parents or relating to the children specifically and both parties shall be entitled to fully participate in all and any activities at the school or connected with the school.

12.That each party shall inform the other party in writing as soon as practical of any specialist medical appointments with any psychologist, psychiatrist, counsellor or therapist (hereinafter referred to as “consultant’) in relation to children.

13.That each party shall do all acts and things to ensure that the other party is provided with all reports by any such consultant.

14.Each party shall be and is hereby restrained from:

(a)Discussing these proceedings or any issue or allegation raised therein with the children or either of them;

(b)Allowing, causing or permitting the children to view any documents filed or to be filed in these proceedings;

(c)Denigrating the other parent or allowing, causing or permitting any other person to do so in the presence or hearing of the children;

(d)Denigrating any member of the other parents family or household or allowing, causing or permitting any other person to do so in the presence or hearing of the children.

AND THE COURT NOTES THAT:

A.The Court has made concurrent orders authorising the ICL to make contact with X’s treating practitioners and school.

B.The matter is stood-over part heard to facilitate additional information being obtained about X’s behaviour and performance at his former school and about the basis of his diagnosis with and treatment for ADHD and ODD.

C.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

JUDGE B SMITH:

1. These are short form oral reasons for decision pursuant to section 69ZL of the Family Law Act 1975 (Cth), hereafter “the Act,” in an interim application for competing parenting orders.

2. The applicant father is Mr Pedota, born in 1977. He’s in his early forties. The respondent mother is Ms Bellans, born in 1983 and in her late thirties. The children who are the subject of these proceedings are Y, born in 2006, now 14 going on 15, and X, born in 2010, who is 10 years of age.

3. The short facts are that until April of last year, both children lived with the mother and spent regular time with the father. This has become, unfortunately, a relatively high-conflict relationship, and that has had significant adverse consequences for both children. The fact is that since about May of 2020, X has spent no time with the father, and the circumstances in which that arose have to do with the mother’s view that she says, at paragraph 63 of her affidavit, that X told her he was subjected to questioning about her conduct by the father and also by the grandmother.

4. Then Y, since June of 2020, has spent no time with the mother, having relocated to live with the father. The adverse consequences for both of these children is that not only has their relationship with the other parent fractured, but because they are living in separate houses, they have had an impairment to their relationship with each other.

5. The parties come before the Court, together with an ICL, seeking orders in relation to both Y and X.

6. Now, I will not go into more of the background because ultimately, the issues narrowed significantly, particularly in respect of Y.  I note her age, and that the parties have agreed upon a lot of the orders and what should happen, and I will start with what’s agreed. I’m working from the ICLs proposed order, which is at page 12 of the court book, which has both page numbers 11 and 10 on it. The parties agree, and I will make the following orders: Order one, which is that Y lives with the father. Order two that Y spends time with the mother in accordance with her wishes.

7. And I will stop and just say briefly that given her age and maturity and the issues involved, I’m satisfied that it is appropriate to allow that for Y, as proposed by the parties and the ICL, but that it’s important to note that such a model for X would be entirely inappropriate, given his age and given the circumstances where he, unfortunately, appears to have taken on the responsibilities for being the parent on himself. But I make orders one and two.

8. I also note order three is agreed, that X should continue to live with the mother. I make order five, that the father use his best endeavours to encourage Y to FaceTime X on his iPad at least once per week. And indeed, having considered that, I am going to ask the parties to consider when we come back on the next occasion, which I will come to, whether we should look at trying to make further orders requiring Y and X to spend time together, perhaps independently of the parents, noting that it seems that they still retain a relationship that they will be happy to have, and it is the conflict between the parents that has impaired their relationship, and even if there are difficulties repairing those parental relationships, if the relationship between the children can be advanced through, perhaps, a time order that requires Y and X to go to a movie every few weeks or something along those lines, that may assist them, and also, by repairing their relationship, it may in turn help facilitate the relationship with the parents, but I will come back to that.

9. I won’t make an order about that today, but I will ask the parties to consider it.

10. I make order six, that the father use his best endeavours to ensure Y attends during his time with X. I will also make order seven, about the “My Family Wizard” or similar app, which is by consent. I will make orders, nine, ten, eleven, twelve and fourteen, by consent, which relate to the parties enrolling in both the “Turn to Teens” and “Keeping Kids in Line” courses and providing evidence about that. The parties are to do all things and sign all documents necessary to authorise and direct any school attended by the children to discuss with the school about the children’s attendance, et cetera; and information about the specialist medical appointments in relation to each child. I will come back to the importance of that later, and also that each party give any reports.

11. Order fourteen is contentious. Order eight is contentious. I will come back to those.

12. I will make order fifteen, which is a standard non-denigration clause. I think that is probably a bit late, because these children have been intimately involved in these proceedings and indeed, much of the issue relates to what has occurred there.

13. I congratulate the parties and, their lawyers were no doubt heavily involved, and the ICL in agreeing these.

14. The big-ticket items that remain outstanding are X’s time with the father. It’s not a question of whether he should spend time. The parties and ICL agree X should spend time with the father. It’s really about the way in which X is reintroduced, and I will come to that in a moment. And I will say this:  it seems very clear to me from the material, and I accept the ICLs submission on this point, that X’s reluctance to see the father arises from him taking on himself the adult burden of trying to be fair between the parents.

15. While Y has aligned herself with the father, X clearly thinks that someone needs to support the mother. It seems to me that he is trying to protect the mother, to be fair to the mother and to provide her with emotional support so she doesn’t feel that she’s being unfairly treated, and it’s a very, very unfortunate that a child of this age should find himself in the position where he has been left to carry the adult burden.

16. I hope that if the parties attend these agreed courses and perhaps think less about the other party’s fault and perhaps about each of them about their own part in what is occurring, and perhaps ask themselves whether, even if they think the other party is at fault and even if they think the other party is acting badly, whether perhaps they could do more to protect their child. But that, ultimately, is something I can’t make anyone do. But there’s no doubt that X and Y are both suffering because each party seems focused on the other party’s wrongs and unable to see their own contributions to this mess.

17. So the ICLs proposal, which the father adopts, is that X spend time with the father, starting on a slow introduction, since he hasn’t seen him for six months. Though I note that it’s not a case where he hasn’t had a long-term relationship with the father.

18. The suggestion is two months alternate Saturday and Sunday from 10 am to 2 pm, and then two months alternate Saturday and Sunday from 10 am to 6 pm, a further period of two months alternate Saturday from 10 am to 6 pm Sunday, and then after, alternate weekends after school on Friday till school on Monday and half school holidays. So, a pretty standard reintroduction on a slow basis, and then alternate weekends and half school holiday time.

19. The mother’s proposal is as set out in her court book at page 5 of the PDF. She is seeking, from order nine, that for three months after those orders, X spend time with the father, supervised, by an agreed supervision agency at the cost of the father on the Sunday alternate to order six, from 10 am to 12 pm. And provided there are no adverse incidents, though I’m not quite sure what that means, that the next three months with the father, Sunday alternate, from 10 am to 2pm, and again, if there are no adverse incidents. This phrase, “adverse incident” seems to me to be intended to introduce a unilateral capacity for the mother say there’s an adverse incident, and given what has been going on and given what’s happening with schooling, I don’t think that’s a sensible order.

20. She also says that if X expresses a strong wish to return to the mother during his time with the father, the father will then text the mother, the mother will collect X as soon as practicable. Now, I understand that the mother thinks this is a good idea, but the problem is that X has clearly taken on the role of being the mother’s supporter. Putting him in the position where he knows that she would rather he wasn’t spending time with the father, and he knows that she would be more than happy for him to text saying, ‘I’d like to come back,’ that is just going to put enormous pressure on X to text her and let her hear what she wants to hear.

21. The mother also says in terms of the holidays that it shouldn’t be more than a week because the father can’t deal with X’s issue of performing an enema. The father says that he has been dealing with that for many years. There is also an issue of family therapy; not whether it should occur, but where it should occur because the mother says that the travel time to G Counsellors is too long, and there’s also an issue about attendance of regular appointments. And then we have the very concerning fact that despite equal shared parental responsibility, despite that this matter has been set down for an interim hearing today from last year, despite there being an Independent Children’s Lawyer, whose job is to represent the children’s interest, the mother has unilaterally and without prior notice changed X’s school this year.

22. I also note that there is an issue of the number of people treating X, and the fact that he now has a diagnosis of ADHD and oppositional defiant disorder.

23. Before I go into what I think should happen there, I will just note quickly that I’m being asked to make competing parenting orders as defined in Part VII, Division 5 of the Act. I note 64B and the Court’s powers under 65D to make that. The paramount consideration is X’s best interests. I note section 60CA and 65AA of the Act. The primary considerations of what is in X’s best interest at the section 60CC(2) are first and foremost the need to protect X from physical or psychological harm, from being subjected to or exposed to abuse or an act of family violence, and second for X having a meaningful relationship with both parents. I have to give greater weight to the first of these considerations, and I will come to that in terms of the issue the mother raises about the needs for supervision.

24. These are the twin pillars as referred to in Mazorski & Albright [2007] FamCA 520 by Brown J at paragraph [3]. I note that the principles that govern an interim hearing apply here. I note that there are a lot of 60CC(3) additional considerations to be considered. As the Full Court said in Banks & Banks (2015) FLC 93-637 at paragraphs 48 to 50 it’s the issues that are joined by the parties that will dictate which section 60CC factors are relevant, and I don’t see the need to really go through and do a tick a box exercise, looking at the various factors. They all roll back into this same question, the same questions we have got here on relatively narrow issues.

25. I note that there is an existing order for equal shared parental responsibility. I’m not going to deal with that. I note what was said in Goode & Goode [2006] FamCA 1346 about the contested facts, and the facts and issues I have here are “conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child.” I also note what was said in Marvel v Marvel (2010) 240 FLR 367, that the orders I make today are “a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing” with any findings “couched with great circumspection”. I also note what was said in Eaby & Speelman (2015) FLC 93-654, “that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.”

1. Now in seeking supervision the mother is saying the father presents a risk to X for spending unsupervised time. I note what was said in Deiter & Deiter [2011] FamCAFC 82, and particularly in SS & AH, about a judge sometimes having “little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.” I also have in mind what was said about unacceptable risk in M v M (1988) 166 CLR 69 in the High Court, and the discussion of these principles in B v B (1993) FLC 92-357 and in Stott and Holgar and Anor [2017] FamCAFC 152.

2. Looking at the question of balancing risk against the benefit to the child of a relationship, where I also note McCall v Clark [2009] FamCAFC 92, and also looking at the supervision order as a factor that can ameliorate risk, this does not strike me as being a high-risk case.

3. I give great weight to the fact that whilst the father may well have been asking X questions, it seems to me that there’s no suggestion of physical risk. The suggestion is an emotional risk to X, but I am satisfied that the greater emotional risk for X is being caught in this conflict without clear orders that require him to spend time with the father. And I’m not at all satisfied that the suggestion that there should be a supervised period of reintroduction is made out, or that there is any real psychological risk to X that would require any supervision, or particularly paid supervision.

4. The father should not, of course, question X about what’s happening in the mother’s household, no matter how much he may want to. It’s just another one of those factors where people are focusing on themselves, not on their children. I think it is appropriate to have a slower reintroduction. In terms of the holiday time, I don’t see why the father cannot continue dealing with the question of the enemas, as he apparently did previously. As I’ve said, a Court will look at supervision where it’s appropriate, but I’m am not at all satisfied that the issues of risk the mother raises are made out. As I’ve said, to the extent to which there may be risk of the father questioning X, I think the greater risk to X is in not having time start again.

5. For those short reasons, I will make order four as proposed by the ICL in the minute of order.

6. In terms of the family therapy, I think family therapy clearly needs to continue. The mother says she’s not opposed to it but wasn’t in a position to actually suggest an alternative. In those circumstances there is someone who has been involved. The mother says it’s a long drive, but perhaps she can take alternate transport, such as public transport, where she can stand. But unless and until it’s agreed otherwise, I’m going to make order eight: the parties are to continue with Ms F.

7. Now, I won’t make an order about the attendance at regular appointments for following reason, and I will just shortly indicate why, as I’m going to adjourn the matter. The mother changed his schools without substantial prior notice. And I don’t consider saying at a mediation or elsewhere, “I’m thinking about changing schools,” is the same as saying, “by the way, I’ve enrolled the child in a different school.” I think it’s very concerning behaviour on the part of the mother. Very concerning. She is legally represented. There is an ICL. There’s an interim hearing coming. She must have known that this would cause grave controversy, and she has decided she will do what she wants without regard to anybody else so it’s a fait accompli. And it just shows real indifference, in my view, to X, because if I have to change his school back again, it’s just adding trauma on trauma.

8. I’m very concerned, as I have indicated, but I am not willing to go any further today, other than to say this about the evidence the mother relies on.  She sent X off to doctors, unilaterally, despite equal shared parental responsibility. She sent him to see a number of people and one of those doctors, which she has included at page 56 of her court book (page 58 of the PDF file), was a consultant neurodevelopmental paediatrician, Dr C. And he says that: “X is under my care for his complex ADHD and related difficulties. Despite having significant supports and being on medication to treat his ADHD, X has continued to struggle at home and school with his condition.” The doctor talks about being quite concerned that X has significant ongoing issues at his current school.  And I will keep going: “I am very supportive of his changing to what appears to be a structured and supportive environment.” The difficulty I have is that the material that I’ve been provided with from the school doesn’t indicate what one would commonly expect to see in a child who has ADHD.

9. X has also been diagnosed with oppositional defiant disorder, and yet when one looks at the behaviour assessment from the school as set out at page 95 of the PDF of the ICLs court book, on 4 September 2020, taking into account the prior three months (my understanding is he would have been at school in that period), X’s teacher, Ms G, went through and looked at his behaviour. Where zero is never, through to three, is ‘very often,’ there is a list of 35 matters, starting with “fails to give attention to details or makes careless mistakes in schoolwork.” Here X scored one, “occasionally.” But then, in terms of number two, “has difficulty sustaining attention in tasks or activities perceived as not particularly interesting, he scored “zero,” which is “never.”

10. Furthermore, “does not listen when spoken to directly: never”. “Does not follow through on instructions and fails to finish homework: never”. “Avoids, dislikes or is reluctant to engage in tasks that require sustained mental effort: never”. “Loses things necessary for tasks or activities: Never”. “Is forgetful in daily activities: never”. “Fidgets with hands or feet or squirms in seat: never”. “Leaves seat in classroom or in other situations in which remaining seated is expected: never”. “Runs about or climbs excessively in situations in which remaining seated is expected: never”. “Has difficulty playing or engaging in leisure activities quietly: never”.  Out of the 35 matters raised, only eight of them aren’t “never.”

11. Of those eight: “fails to give attention to details or makes careless mistakes in schoolwork: occasionally”. Though, what child doesn’t? “Has difficulty organising tasks or activities: occasionally”. “Is easily distracted by extraneous stimuli: occasionally”. “Is ‘on the go’ or often acts as if ‘motor-driven’: occasionally”. “Interrupts or intrudes on others: occasionally”.

12. I’m not an expert, but one has heard and dealt with many cases involving children with ADHD and oppositional defiant disorder, and I find it difficult to see how that school assessment corresponds with the factual history that has been assumed by Dr C, such as “significant ongoing issues at his current school.”

13. Mr D, a consultant psychologist, also has a history that X has experienced difficulties in his current school.

14. Now, the school’s material does indicate some behavioural issues of being “handsy” and so on, but nothing pops out at me as indicating the factual background for ADHD in particular. It also seems very strange that a child would get such a good report card if he had oppositional defiant disorder. I am not in a position to discount qualified medical opinion because of that. But I am very worried about the quality of the history that has been given to the doctors, and since the basis for the move of schools seems to rest primarily upon the medical evidence, which is based on the history, I am not willing to determine that issue today.

15. Obviously, one can cite many cases, but, for example, Heydon J in Makita (Australia) Pty Ltd (2001) 52 NSWLR 705, at about paragraph 85 sets out the way in which expert evidence is considered. If the assumptions that the medical practitioners have, such as that X is having trouble at school, or is defiant at school, or isn’t doing well at school, are the basis for diagnosis, then the diagnosis may be wrong. Not because of any fault of the doctor, but because the diagnosis follows from incorrect assumed facts he’s been given.

16. That has ramifications, not only for whether X should change schools, because no one has dealt with the fact that if he has friends at his old school he may not want to change school. His sister still is at that school, and although they haven’t been seeing much of each other, if they’re at the same school, that does provide an opportunity for their relationship to be remedied, for them to spend regular time together. It doesn’t have to be long, but it may be possible that if they’re at the same school, if there is a 10-minute morning meeting a couple of times a week, just to rebuild that relationship.

17. Also, it appears that based upon the diagnosis, which appears to be based upon the history provided to the doctors, X is now being medicated. At page 90 of the ICLs court book, he’s being given Risperidone to help stabilise volatility and meltdowns.

18. It may be that he is having volatility and meltdowns with the mother, but it may be he is not having these issues at school as well.  But X he is only having these issues with the mother and not at school, then it may be that the diagnosis requiring medication needs to be reconsidered on better facts.  It is not possible for me to decide these matters now, but exercising my jurisdiction to adjourn this part of the matter part-heard, I proposed to have the ICL to speak with the school and the doctors to make sure that the doctors are working on a proper factual basis. It may be that they are; in which case, we can proceed from there. It may be that they’re not; in which case, not only does the Court but the doctors also need to know that.

19. It is for these reasons that I am going to send part-heard the questions of attendance at medical appointments and schooling. But I will also indicate that, obviously, if the histories given to the doctors has been inaccurate, then the Court will consider making the orders about who can see X in future and limiting the capacity of either party to introduce new medical practitioners, because that may be a concerning thing.  As I have said, at the moment, I just don’t know. And I think the issue is so significant that despite the Court’s lists and despite the additional costs and the unfortunate issue of having to come back, I think it’s such a serious issue that these questions should go part-heard.

20. I will make the orders that I have indicated I’m going to make today. Otherwise, I propose to bring the parties back, subject to the Court’s capacity to actually hear the matter, because I think it’s important that this matter not drift on.

21. I do have time on Thursday, and my preference would be to list the matter on Thursday, hoping that the ICL can speak with the school and the doctor or doctors today or tomorrow. If it turns out that she can’t, well, then, we may have to put it off a bit.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge B Smith.

Associate:

Dated:       26 March 2021