POULOS & MINTON

[2017] FamCA 1065

FAMILY COURT OF AUSTRALIA

POULOS & MINTON [2017] FamCA 1065

FAMILY LAW – CHILDREN – contravention application filed by father – mother argues reasonable excuse – reasonable excuse found – application dismissed

APPLICANT: Mr Poulos

RESPONDENT: Ms Minton

FILE NUMBER: MLC 11510 of 2015

DATE DELIVERED: 20 December 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 12 December 2017

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: In Person

Orders

IT IS ORDERED THAT

1. The father’s Application for Contravention filed 27 November 2017 be dismissed.

2. Leave is granted to the parties to file any application for the discharge or variation of paragraph 7 of the final parenting orders made 9 August 2016 such applications (if any) to be listed in the Senior Registrar’s Duty List at 10.00 am on 1 March 2018.

3. If there is no application filed by 29 January 2018 that hearing before the Senior Registrar on 1 March 2018 will be vacated.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Poulos & Minton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11510 of 2015

Mr Poulos

Applicant

And

Ms Minton

Respondent

REASONS FOR JUDGMENT

1. The father’s Application for Contravention filed 27 November 2017 was listed for hearing before me in the Judicial Duty List on 12 December 2017.

2. The father and mother in this case were married in 1994 and separated on 26 August 2014. A divorce order was made by the Federal Circuit Court of Australia on 15 November 2016. There are five children of the marriage namely:

   ·    Ms B born in 1997 aged 20 years;

   ·    Ms C born in 1999 now aged 18 years;

   ·    D born in 2002 aged 15 years;

   ·    E born in 2004 aged 13 years; and

   ·    F born in 2004 aged 13 years.

3. On 9 August 2016 the father and mother consented to final parenting orders that provided, inter alia, that they have equal shared parental responsibility for the children, that the children live with each of them on a week about basis and that they have sole responsibility for the day to day care, welfare and development of the children when in their respective care. 

4. Relevant to this application, paragraph 7 of the orders further provided as follows:

   Each party shall ensure the other party is at all times kept informed of:

   (a)Any medical and psychological treatment that the children receive and both parties shall have liberty to:

   (i)contact the children’s treating physicians in relation to any such treatment; and

   (ii)attend all relevant appointments, regardless of which party made the appointment; and

   (b)Any and all medication that is administered to the children.

5. In his Application for Contravention the father alleged as follows:

   Count 1 - 25/2/17:  Respondent took our son to eye appointment without notifying me. When I went to follow up appointment I was told he should have had urgent blood tests. This behaviour excluded me from treatment decisions and put our sons [sic] welfare at risk.

   Count 2 - 24/4/17: Asked respondent to notify me if she makes appointment for our daughter [E]. Respondent told me she took her to GP. Two days earlier, she said she got walk in appointment but practice manager said it was booked the day prior. GP is 600 m from my home. Respondent refuses to let me attend with her which excludes me from treatment decisions.

   Count 3 - 9/11/17:  Respondent takes our son to emergency department with burns to his eye. Did not notify me until following day so excluding me from any treatment decisions.

6. The mother denied having contravened the order as alleged by the father either on the basis that she had not intentionally failed to comply or made no reasonable attempt to comply or because she had a reasonable excuse for not having done so.

7. Pursuant to s 70NAC of the Family Law Act 1975 (Cth) (“the Act”) a person is taken to have contravened a parenting order if and only if he or she has intentionally failed to comply with that order or made no reasonable attempt to comply with the order. The onus is on the applicant to establish on the balance of probabilities that the order has been contravened.

8. Section 70NAE of the Act sets out circumstances, albeit the Court is not limited to those circumstances, in which a person may be taken to have a reasonable excuse for contravening an order. To the extent that the mother’s case is that she had a reasonable excuse for contravening the orders, the onus shifts to her to satisfy the Court on the balance of probabilities that that is the case.

9. The father relied on his affidavit filed 27 November 2017 and tendered a copy of an email sent to him by the mother on 26 April 2017. The father was briefly cross examined by the mother. The mother gave oral evidence and was cross examined by the father.

10. During his evidence, the father was focused not only on proving that his interpretation of the orders and version of the evidence was the correct one but also that his medical knowledge and experience was superior to that of the mother and that only he had the necessary experience and knowledge and could be trusted to make appropriate decisions with respect to the health and welfare of the children. It was equally clear that he did not believe that the mother could be trusted to make those decisions. The father was not a good witness and I am satisfied that he has little insight as to what might be required for him and the mother to parent co-operatively. This is particularly unfortunate in circumstances where the mother was prepared to say that she trusted the father to act in the children’s best interests and her plea to him to recognise that she would do the same. The mother’s plea unfortunately did not cause the father to reconsider his position.

11. The mother, on the other hand, was a good witness readily making concessions, including admitting that she would prefer to not attend the children’s medical appointments with the father. That being said, it was clear that the mother felt somewhat overborne by the father and his relentless pursuit of what he considered to be in the children’s best interests and his somewhat dismissive attitude to her parenting and decision making. In all of the circumstances, I found the mother to be a much more balanced witness and where there is a dispute between the evidence of the father and the mother, I prefer the mother’s evidence.

12. The way in which the father put his case and the underlying premise of his Application for Contravention, was that the orders required the mother to notify him in the event of the children requiring any medical treatment or having any medical appointments, so as to enable him to be present. This is irrespective of the nature or seriousness of the medical condition for which the treatment or appointment might be required or the circumstances of that treatment or appointment. However, that is not what the order says or in my view requires.

13. Not only does the order not say the parties are to keep each other informed of any forthcoming medical appointment so that they can attend each and every medical consultation or appointment, the wording of the order envisages the parties informing each other of any treatment received i.e. after the fact and the parties thereafter being able to speak to the treating doctor. 

14. This is also consistent with the order that provides for each of the parties to be solely responsible for the care, welfare and development of the children when in their respective care. Section 65DAE of the Act provides that if a child is spending time with a person at a particular time pursuant to a parenting order, the order is taken not to require the person with whom the child is spending time to consult the person with whom they share parental responsibility about decisions that are made in relation to the child during that time that are not major long-term issues, subject to any contrary order. Section 4 of the Act defines major long term issues as “issues about the care, welfare and development of the child of a long term nature and includes (but is not limited to) issues of that nature about:

    a)The child’s education (both current and future); and

    b)The child’s religious and cultural upbringing; and

    c)The child’s health; and

    d)The child’s name; and

    e)Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

15. What is clear from that definition is that major long term issues, including health issues, are those that are long term in nature. Clearly some medical issues may be long term in nature, others will not. For example, a child who has a cold and sees the doctor but requires no ongoing treatment, does not in my view have what could be described as a medical issue that is long term in nature.

The first contravention

1. The first of the contraventions related to what the mother described as a “standard appointment to have the children’s eyes checked”. The father has continued to reside in the former matrimonial home and he says on that basis he receives notifications and reminders with respect to the children’s medical appointments. It was a significant part of his case that he said the mother had changed the address to which reminders were to be sent by the optometrist as a result of which he was unaware of the appointment on 25 February 2017. Although the mother conceded that she may have changed the address to which reminders were to be sent, she also said that she made the appointment possibly after receiving a reminder by text message. In my view, it does not matter whether the mother changed the address or not. What is not in dispute is that the mother did not notify the father of the appointment at the optometrist until some hours after that appointment.

2. It is the mother’s evidence that she did not consider it to be a “medical situation” and on that basis did not notify the father. Whilst the optometrist is a health professional, arguably he or she is not a treating physician or medical practitioner.  Even if the appointment with the optometrist can be categorised as medical treatment, a regular check-up as I am satisfied this was, is not a major long term health issue requiring prior consultation nor does the order require prior consultation or notification. Even if it was medical treatment, the mother did comply with the order and informed the father of that treatment after it was received.

3. However I also accept the mother’s evidence that she did not consider it to be a “medical situation” and on that basis, I am not satisfied that the mother intentionally failed to comply with the order in the manner envisaged by s 70NAC of the Act. I am not satisfied she deliberately set out to contravene the order, that is even assuming that the order requires the mother to have notified the father of that appointment.

4. In all of the circumstances, I am not satisfied that the mother contravened the order as alleged by the father.

The second contravention

1. Although the father’s case is that the mother should have told him she had made an appointment for the child E to see her GP so that he could attend that appointment with her, even if the father’s interpretation of the orders is not correct, it is common ground that the mother did not tell the father she had sought treatment for E until some two days after having attended upon the GP and then only after the father enquired as to whether she intended to take the child to the doctor. Although the orders do not specify a time within which the other parent should be advised of the child having received treatment, the mother’s case was that she had not notified the father because the child did not want the father to attend the appointment with her. It was on that basis that she had not informed the father either prior to or after the appointment.

2. The mother said that the children do not like having to have both parents attend medical appointments with them and the father conceded in cross examination that E, the child requiring the treatment, had told him that she had not wanted him to attend that appointment.  E is 13 years of age. The mother’s evidence, which was not disputed by the father, was that she is quite mature and that she believed in circumstances where the medical condition, in this case a rash, and the treatment were relatively minor, it was appropriate to respect her wishes.

3. I am satisfied on the balance of probabilities that firstly, the orders do not require the mother to have notified the father of the appointment in advance of that appointment and to the extent that she was required by the orders to keep the father informed of any treatment received by the child, the mother had a reasonable excuse in the circumstances for not doing so on this occasion.

4. Although the father also said that he had not been informed by the mother as to the medication prescribed for the child’s rash that was not the subject of his Application for Contravention.

5. In all of the circumstances, I propose to dismiss the second of the alleged contraventions.

The Third Contravention

1. The third contravention arose as a result of the mother having taken the child D, who is now 15 years of age, to the G Hospital on 9 November 2017. The mother says that the child suffered a burn at work and that when she picked him up from work at 10.30 pm he had a burn on his arm and another above his eye. As his eye was a little red and a bit watery and although he was not complaining about his eye, the mother decided that to be safe she would take him to the G Hospital. The mother said that she and D left the hospital at approximately 11.30 pm after seeing a doctor who ruled out any injury to the eye. The mother conceded that she had not informed the father of the burn or that she had taken the child to the G Hospital until the afternoon of the following day. It was her evidence that she was working the following day, had yard duty at recess and that it was not until lunch time that she had an opportunity to notify the father.

2. The difficulty with the father’s case is that it is based upon his interpretation of the orders that he is to be informed of each and every appointment so as to enable him to attend each and every appointment. As previously referred to, this is not consistent with the orders themselves, which envisage the parties keeping each other informed of medical treatment received by the children. Nor is it consistent with the provisions of the Act with respect to parties having to consult about decisions that they make when a child is in their care when the issues about which they are deciding are not major long term issues.

3. In so far as the orders require the mother to keep the father informed of any medical treatment received by the children, I note that there is no prescribed time frame as to when this should occur, but that in any event, in circumstances where the mother went to the hospital and there was no injury requiring any treatment, I am satisfied that it is not unreasonable for her to notify the father the following day. Clearly if there had been an injury and decisions had to be made by the parties as to treatment, the situation might be different. 

4. In all of the circumstances, I am not satisfied that the mother has intentionally failed to comply with the order as alleged by the father and propose to dismiss the third of the alleged contraventions.

Conclusion

1. In all of the circumstances, I propose to dismiss the father’s Application for Contravention filed 27 November 2017 on all counts. In my view, not only is the father’s interpretation of the orders not correct, it is also totally impractical, particularly so in light of the father’s attitude to the mother and in my view is contrary to the Act’s intent with respect to parents caring for and making decisions with respect to the care, welfare and development of their children when they are in their care.

2. Having observed the father in Court, I also have very real concerns about the impact on the children of his desire to control the decision making with respect to the children’s health and his distrust of the mother’s capacity to act in the children’s best interests.

3. The father appeared unable to distinguish between being present at each and every appointment and the decision making process itself. There will of course be occasions, such as the children facing a serious or life threatening illness or accident, when it might be expected that not only would the parties need to consult with each other and the medical practitioners treating that child, but both may also need to be present during medical consultations and appointments. However, that is very different to being present at every medical appointment, however minor, when the child is in the care of the other parent. The orders as they are currently worded do not make such a distinction.

4. In my view, it is difficult to understand what is intended by that part of the order that refers to the parties attending “relevant appointments” or what would make an appointment “relevant”. Pursuant to s 70NBA of the Act the Court may make an order varying a primary order even if it does not find that a party has contravened that primary order, as was the situation in this case. Having heard this matter, it is clear that there are problems with the order as it is presently worded both because of the father’s interpretation of the orders and the orders themselves. The order does not do what the father believed it to do and in my view, the parties and the children might benefit from having the terms of the orders refined, so that they know and understand their rights and obligations. On that basis, I propose to list the matter in the Senior Registrar’s Duty List and make directions for the filing of any application with respect to paragraph 7 of the final parenting orders. If there is no application filed by a specified date that date will be vacated.

5. I am hopeful that the parties will be able to agree upon an order which meets the needs of their growing children and which respects both their respective roles as parents.  

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 20 December 2017.

Associate: 

Date:  20 December 2017