Pedota & Bellans (No 2)

[2021] FCCA 607

FEDERAL CIRCUIT COURT OF AUSTRALIA

Pedota & Bellans (No 2) [2021] FCCA 607

File number(s):	SYC 1299 of 2018
Judgment of:	JUDGE B SMITH
Date of judgment:	25 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) Evidence Act 1995 (Cth)
Cases cited:	Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Number of paragraphs:	30
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:	25 FEBRUARY 2021

THE COURT ORDERS THAT:

1.The matter be listed for mention on 16 November 2021 at 9.30AM.

2.As of Monday, 1 March 2021, the child, X born in 2010, (X) is to attend E School.

3.A copy of these orders may be given to E School.

4.A copy of these orders may be given to H School.

5.Neither party is to engage or send X, or Y, to any additional treating practitioner without either the written consent of the other party and the ICL, or, an order of this Court.

6.The ICL may approach the Court to relist the matter at short notice in respect of any issues.

7.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.The process of the Principal and Dr C speaking will be facilitated pursuant to the Orders made on 23 February 2021.

B.A copy of these orders may be given to X’s school and treating medical practitioner.

C.No Orders are currently sought regarding the children’s treating practitioners. The Court will entertain applications in due course if the ICL or parties consider it appropriate and necessary.

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 (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE B SMITH:

1. These are oral reasons for decision pursuant to the provisions of section 69ZL of the Family Law Act 1975 (Cth) in respect of the outstanding parts of an interim application for competing parenting orders which relate to the schooling and education of the child the subject of these proceedings, X, who was born in 2010, and is now ten years of age.

2. I refer to the oral decision I gave when the matter was last before me on the 23 February 2021, two days ago.  I will not repeat all of that material.  This Judgment be read together with that Judgment which sets out the history and also deals, to some extent, with this issue. 

3. The question before me today relates to X’s schooling.  Just prior to the interim application being heard this year, and without proper notice to the father or the ICL, the mother unilaterally changed X’s school.  I raised, possibly more than the parties, the issue of my concern about what I read in the reports of Dr C, the treating practitioner who has diagnosed both oppositional defiant disorder (ODD) and ADHD in X, when the school reports did not seem to indicate that they would be the appropriate diagnoses. 

4. I am not a medical practitioner, but part of my role as a judge is to apply the rules of expert evidence, including at an interim stage, although, obviously, on a constrained basis, and that includes the principles that would apply if section 79 of the Evidence Act 1995 (Cth) were to apply. In any event, the Court, effectively, has to apply those principles to understand expert evidence at an interim proceeding.

5. At the heart of the reliance upon expert evidence is the understanding that the expert’s opinion is only as good as the facts upon which it’s based.  If you say to a doctor, well, there’s pain down the right arm when this happens, and so on and so on, well, then the diagnosis might be tennis elbow, for example, but if there’s actually no pain, well, then the diagnosis would be wrong.  When one looks at the complex kind of diagnosis the doctor has taken part in here, it really is dependent upon the history. 

6. The doctor has not seen the child often.  It looks like he has only seen the child via Zoom.  He had a history which is, fundamentally, that the child is having difficulty at school and acting out at school.  And it was in that context that it was agreed that the independent children’s lawyer should speak with the child’s school principal in case, perhaps, the true position of X’s behaviour at school wasn’t showing up in the documents, so that the history that Dr C and Mr D were given and relying on was in fact correct, which would found the diagnoses. 

7. In any event, the mother decided, despite there being equal shared parental responsibility that she was going to unilaterally change school without notice, in the context of these interim proceedings upcoming. 

8. Now, then I will just go back to the report, for example, of Dr C of 10 February 2021 and he says that:

   Despite having significant supports and being on medication to treat his ADHD, X has continued to struggle at home and school with his conditions.

9. He also said:

   I have been concerned that X has significant ongoing issues at his current school.

10. It’s on that basis that the doctor said he was very supportive of X changing to what he said appears to be a more structured and supportive environment. 

11. So there’s two very particular issues here.  The one is the basis of the diagnosis and treatment which appears to be that not only is X having trouble at home, but he’s also having “significant ongoing issues at his current school.” 

12. The independent children’s lawyer has spoken to the doctor.  I note that the Evidence Act or in particular the hearsay provisions of the Evidence Act do not apply to these proceedings because they are child-related proceedings. 

13. I also note that s.75 of the Evidence Act, to the extent to which it might apply, would also allow an exception for hearsay material on an interlocutory basis, in effect, where the court is satisfied by the reliability of the material.  As I have indicated in submissions I am comfortably satisfied it is safe to rely upon the independent children’s lawyer, in her capacity as a statutory officer, to have accurately advised me of the conversations she had.  No one has suggested otherwise.  I note what was said about the conversation with the principal. 

14. I will start with the fact that I am very concerned about the fact that although the mother has made this unilateral decision, it doesn’t appear she has told the school.  It appears that the school was not aware X was being enrolled in another school.  They were told he was sick.  Now, no one made submissions about that, but it’s not clear to me why, if the mother is acting honestly and in X’s best interests, she has felt the need to not be honest with X’s current school.  That’s a very concerning behaviour.  I note there is still a place there for X, so it is open to me to order him to return to his current school without any practical difficulties.  I note that the principal is not a doctor either, but he said he was very surprised at the diagnosis and that X is a lovely child.  There were no red flags concerning his behaviour.

15. This comes down to this fundamental principle of expert evidence, that an expert applies their specialised knowledge to facts, and those facts are either assumed facts or observed facts.  Clearly where the doctor hasn’t spent hours or days with X, the diagnosis must be based upon assumed facts.  Those assumed facts, in this case, have a source.  That source is the mother.  I agree with the mother that as between two parents, they can have very different observations and reports, and that’s why I placed little weight upon what the father said, but I place significant weight upon what is said by the school because X has been there for many years.  They have had hundreds, if not thousands, of hours for their teachers to observe X.  They are independent of the parents.  Where the diagnosis is said to be based upon his significant difficulties at school, I wanted to know what the school said, and what the school says is, as I said, he’s a lovely child and there are no red flags concerning his behaviour.

16. There are incidents which I referred to in my prior judgment, but they were said to be minor incidents.  They were said to be typical of a boy of his age, and that’s how they read to me.  The references to hands and touching, when boys of his age are put in line to go into class, it’s very difficult to convince them that a bit of pushing and shoving isn’t appropriate.  It was said that he can have a little bit more irritation, but not hurting others.  It’s about managing himself and he is a really good kid; not troublesome.  A pleasant boy. 

17. I cannot see, based upon such notice as I do take of the diagnostic criteria in DSM-5, how you can get a diagnosis of oppositional defiant disorder based on his behaviour and issues at school when that’s the description of him at school from the school, which is where he spends most of his waking hours. 

18. Now, as the ICL raised, it may be that he is showing oppositional defiant behaviour to the mother and it may be that in the context where Y has left, X has decided that he is going to be, in effect, the adult and deprive himself of time with his father and his sister. That in effect, he is going to punish himself and martyr himself until Y sees the mother, and it may well be that some resentment has arisen in X of his mother because of that.  I don’t know, but it is not at all apparent to me that Dr C knows either.  So it’s seems, on the one hand, Dr C has and relies on a history of significant problems at school which is clearly factually just not correct.  There’s no way the mother could know, other than by asking the teachers, and the teachers say that’s not the case. 

19. He also doesn’t seem to report upon the other significant factors which might explain X’s behaviour with the mother. 

20. So applying any principles of the analysis of expert evidence I referred to, for example, what Justice Heydon said in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 especially from about paragraph 80 to 85, where the assumed facts diverge so significantly from the apparent facts or the real facts, as the court sees them, and noting I can’t make findings of fact on an interim hearing but I place such weight as I can on the principal to know what happens at the school, then there’s a real doubt about the reliability of the expert opinion.

21. Now, I am also a bit concerned because the ICL spoke to Dr C who, it appears, is somewhat dismissive of what the school says.  Now, that worries me.  I indicated in my last judgment there was no criticism of the treating practitioners because they’re not involved in the forensic process.  They’re treaters.  They’re told certain things.  They rely on it in good faith and they do the best they can.  It may be that Dr C hasn’t got much experience with treating children who are in a position where their parents are in this kind of situation and where, indeed, X is in this kind of situation.  I would have thought, given that he’s said to be a consultant neuro-developmental paediatrician, you would think he would come across this.

22. But I would have thought that the views of the school teachers would be absolutely critical, in terms of their perceptions of the child, in terms of forming a diagnosis of the kind he has formed based on conduct at school. 

23. I’m not asked to make any orders about X treatment today, but the doctor definitely needs to speak with the school because if he is making a diagnosis, and then providing medication, on a false factual basis, he needs to be made aware of that as quickly as possible. 

24. Even if the diagnoses are correct, the question then is should X change schools.  And I note, as I was taken to and I had actually noted, at paragraph 72 of the family report, the family consultant said:

    X said that he likes E School because he has lots of friends there and because he is allowed to use an iPad during lessons. He said that he enjoys writing and that there is nothing he dislikes about his school.

25. Now, that report was released on 28 October 2019.  That’s before the significant change of events that occurred which has led to the children each aligning themselves in the war between the parents.  The mother didn’t, interestingly, at that stage, raise this problem.  If this is an organic problem that requires medication, it’s not clear why that issue wouldn’t have been apparent to the mother and raised with the family report writer then.  That again raises real issues, as the ICL has flagged, as to whether the child’s behaviour with the mother relates to the current circumstances of conflict, in which case the diagnosis may need to be refined and treatment may need to be refined or changed. 

26. This all needs to be brought to Dr C’s attention.  X likes the school.  The school thinks he’s a great kid.  There’s no evidence he’s not doing as well, academically, as he can.  Even with the diagnosis Dr C has given, he said that some children manage to cope with it. 

27. I can just see no basis for changing of the school.  Now, I’ve said I’m very concerned about the fact that the mother wasn’t even honest with the school, and that she has decided that she is above this court’s authority and above the orders for equal share of parental responsibility, and that knowing that she was about to come in front of a judge for an interim hearing, she didn’t bother telling anyone what she was doing.  Now, I don’t need to make any findings about that.  Doubtless we will hear more about it if we ever get to a final hearing, but it certainly doesn’t encourage me. 

28. One would not usually change a child’s school and remove him from all of his good friends unless he had a problem there.  In fact, it seems to me that if the problem is that he’s having a problem with this mother and he’s in turmoil because he can’t see his father and his sister, then the last thing one would want to do, and the worst thing one could do for him, would be to remove him from what little stability and social support he has, at a school where he has been going for years, with lots of friends, and teachers who like him and want him to be there.  I would have thought that was a place of respite for him from the conflict that’s going on. 

29. There’s equal share parental responsibility.  The father doesn’t agree to the move.  It seems to me, on all the material I have before me (to the extent which I can and I must, noting this is a parenting matter) it seems likely that X’s best interest will be, overwhelmingly, advanced by returning him to E School in those circumstances and for those reasons. 

30. I don’t know there’s actually an order proposed because it was so recently put before me, but the matter is clearly before me.  I don’t need an application in a case; I am treating this as an oral application from both the father and the ICL, opposed orally by the mother, that X should be returned to E School. 

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge B Smith.

Associate:

Dated:       26 March 2021