Ritterman & Ritterman and Anor (No. 2)

[2009] FamCA 681

FAMILY COURT OF AUSTRALIA

RITTMAN & RITTMAN AND ANOR (NO. 2)

[2009] FamCA 681

FAMILY LAW – CHILDREN – Interim parenting orders – High medical needs child – Orders sought to have Father attend at the Child’s treating practitioners – Father has demonstrated care of the Child in the past – The Child has been left with others who have not consulted with medical practitioners – Would cause high conflict between the parties – No order made

FAMILY LAW – CHILDREN – Interim parenting orders – Parental responsibility for medical decisions – No evidence the Father has been neglectful obtaining treatment in the past – No order for sole parental responsibility

FAMILY LAW – PROPERTY – Sole use of former matrimonial home – Father demonstrated a superior ability to maintain property pending its sale – Father to have sole use of the home pending sale

APPLICANT:

Mr Rittman

FIRST RESPONDENT: Ms Rittman

SECOND RESPONDENT: Mr Clarence

FILE NUMBER: BRC 2571 of 2009

DATE DELIVERED: 30 July 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 20 July 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Waterman of Counsel appeared for the Applicant Father

SOLICITOR FOR THE APPLICANT: Harrington Family Lawyers

COUNSEL FOR THE FIRST RESPONDENT: Ms Brasch of Counsel appeared for the Respondent Mother

SOLICITOR FOR THE FIRST 

RESPONDENT:

Pippa Colman & Associates

COUNSEL FOR THE SECOND

RESPONDENT:

There was no appearance by the Second Respondent

Orders

UPON THE UNDERTAKINGS OF THE FATHER given without admission that

he will:

(a)ensure, except in an emergency, that the child is not naked in his presence and that he is not naked in the child’s presence; and

(b)follow the advice of any medical specialist treating the child;

(c)that he will ensure that he has a shower chair available for the child’s use.

IT IS ORDERED UNTIL FURTHER ORDER:

1. That until the former matrimonial home at N is sold the Husband have sole use and possession of that property and of the parties’ boat.

2. That the child, O, born … January 1999, live with the Mother.

3. That the parties shall have equal shared parenting responsibility for the child.

4. That the child spend time with and communicate with the Father as agreed to between the parties and failing agreement in any case:

   (a)each alternate weekend from after school Friday to before school Monday, with the first such weekend to commence on 31 July 2009;

   (b)in the other week, from after school Thursday to before school Friday;

   (c)on the Father’s birthday if it falls on a day when the child is not in the Father’s care.  If a school day from after school that day to before school the following day.  If a non-school day from 4.00pm the previous day to 4.00pm that day;

   (d)on Father’s Day if it falls on a day when the child is not in the Father’s care, from 4.00pm the previous day to 4.00pm that day.

5. That the child spend time with and communicate with the Mother as agreed to between the parties and failing agreement in any case:

   (a)on the Mother’s birthday if it falls on a day when the child is not in the Mother’s care.  If a school day from after school that day to before school the following day.  If a non-school day from 4.00pm the previous day to 4.00pm that day;

   (b)on Mother’s Day if it falls on a day when the child is not in the Mother’s care, from 4.00pm the previous day to 4.00pm that day.

6. Changeovers for the purpose of the previous Order shall be as follows:

   (a)on Mondays if on a school day, at N State School;

   (b)on Tuesdays, Thursdays and Fridays, if on a school day from the taxi service at the corner of … Street and … Street, N;

   The Mother is not to be present for the changeovers referred to in paragraphs (a) and (b) hereof.

   (c)on non-school days at 7.00pm (or at times otherwise specified in these orders) at McDonalds Restaurant at N.

7. That the parties be at liberty to attend meetings together in relation to the child at any school or upon any hospital, medical or health care practitioner.

8. That the parties shall use a communications book for the purposes of communicating with each other regarding the child.

9. That the parties attend family counselling with such family counsellor or counsellors as agreed, and failing agreement to be Foundations at ….

10. That both parties attend on Advanced First Aid Course, with each to provide the other via their solicitors a certificate of completion.

IT IS FURTHER ORDERED THAT:

1. Costs reserved.

2. The proceedings be adjourned to case management review to 10.00 am on

   
   16 November 2009

   at the Brisbane Registry of the Family Court

3. Pursuant to s 62B and s 65DA(2), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2571 of 2009

MR RITTMAN

Applicant

And

MS RITTMAN

First Respondent

And

MR CLARENCE
Second Respondent

REASONS FOR JUDGMENT

1. The parties to this litigation are in dispute as to what arrangements should be put in place concerning their 10 year old daughter O.

2. O is profoundly disabled suffering Tuberous Sclerosis Complex, being a neuro-degenerative condition affecting the brain, heart, lungs, kidneys, rectum and skin; intellectual impairment; seizure disorder; constipation and possible pervasive development disorder.

3. A minute of orders setting out the position of the parties was produced.  The orders sought by the Father are in typewritten format whilst the handwritten notations are the variations sought by the mother.  In the course of submissions I was informed there were some amendments put forward by the mother which were not opposed.

4. In summary form the parties are not in agreement in relation to the following issues:

   ·    Whether a notation should be included that the father undertakes to follow the child’s care plan and procedures as summarised in attachment “A” to the draft orders.

   ·    Who is to have sole use of the former matrimonial home.

   ·    Whether the father is to join with the mother in consultations with the child’s medical and allied health professionals as to the management of her overnight and daytime routines as detailed in attachment B.

   ·    Whether the mother is to have sole responsibility for medical decisions concerning the child.

5. The parties are otherwise agreed on the terms of the interim orders to be made.  The draft orders provide for the father to spend 4 nights in each 14 with the child on an unsupervised basis.

6. It is trite to observe that a considerable volume of material has been filed in this matter since the father filed his initiating application on 24 March this year.

7. The matter first came before me on 11 and 12 June 2009.  At that time the father was proposing that the child reside with him and spend time with the mother each alternate weekend from after school Friday to before school Monday in one week and Wednesday overnight in the second week a total of 10 nights with him and 4 nights with the mother on a 2 week cycle.

8. In the course of the hearing in June he proposed that the parties share the care of the child on a week about basis.

9. Prior to the June hearing the mother proposed that the father have 2 hours time each Saturday and Sunday.  At the hearing she proposed that such periods be supervised at a local Contact Centre – H Centre.

10. For reasons I gave at the time I made interim orders that the father spend from 7.00 am until 7.00 pm each Saturday and Sunday with his daughter.

11. In coming to the current agreed arrangements for the father to spend 4 nights in each 14 with the child each party has shifted significantly from the stance taken on the last occasion which was a little over a month ago.

12. A report has been commissioned by Ms S a social worker in private practice who regularly prepares reports in this jurisdiction.  I will refer in more detail later in these reasons to this report but suffice it to say for present purposes under the heading “Conclusions and Recommendations” (paragraphs 7.4 and 7.5) Ms S observes:

    “7.4Pertinent in the determination of this matter, particularly which parent should have primary care of [O] and occupy the former matrimonial home until property disputation is resolved, will be both the history of management of her care and interventions and the capacity of the parents to both recognise the severity of her special needs and manage the significant support and interventions that she will continue to require.

    7.5In this regard the mother presented as more insightful and diligent than the father, who to some degree minimised the level of special needs and ongoing medical and paramedical interventions and support required by [the child].  He accused [the mother] of having an inappropriate relationship with the treating general practitioner and perhaps over identifying and compensating with [O’s] needs and care in this context.”

13. The material relied on by the father for this interim determination is as follows:

    ·Initiating application filed 24 March 2009;

    ·Affidavit of father filed 24 March 2009 paragraphs 116-148;

    ·Financial statement of father filed 24 March 2009;

    ·Orders made 11 June 2009;

    ·Affidavit of father filed 9 July 2009: paragraphs 3-33, 37-48, 70-82, 86, 87 and annexure page numbers: 1-3, 24-30, 38, 39, 43, 88-99, 134-137, 139-140, 183, 190, 193-206.

    ·Affidavit of Mr P filed 9 July 2009;

    ·Affidavit of Ms Z filed 9 July 2009;

    ·Affidavit of Mr H filed 9 July 2009;

    ·Affidavit of Dr G filed 9 July 2009;

    ·Affidavit of Mr P sworn 20 July 2009 to be filed by leave;

    ·Family Report of Ms S;

    ·Proposed minute of order.

EVIDENCE OF FATHER’S WITNESS – MS Z

1. Ms Z swore an affidavit on 8 July filed the following day. Ms Z resides at N in a unit across the car park from the unit owned and occupied by Mr Clarence.  She says she resided in that unit from 26 September 2008 until 16 May 2009.  At paragraphs 3 – 5, 11 and 31 of her affidavit she notes:

   “3.Until we moved out on 16 May 2009 [the mother] and [O] at all times resided with [Mr Clarence] in his unit.  The eldest daughter [L] was there until early to mid-January 2009 although I did not see much of her.  Prior to [the father’s] and [the mother’s] separation in early January 2009 most mornings and afternoons [the father] would attend [Mr Clarence’s] unit and in the mornings assist getting [O] ready for school and he would either wave her off in a taxi or he would put her in the car and take her to school.

   4.During the day he would sometimes be there and I would see him hanging washing or carrying in groceries.  [The father] would be back again in the afternoons and take [O] to her various activities.  He would return with her and then stay with her until [the mother] returned.  From our unit we could sometimes see [the father], [the mother], [Mr Clarence], [L] and [O] all having an evening meal.  On other occasions it would be [the father] and [O].  Following dinner [the father] would usually leave.  There would have been a couple of occasions when [Mr Clarence] was away at sea and [the mother] was not there that [the father] would stay with [O].

   5.I did consider this relationship rather strange, however the domestic arrangements were nothing to do with me.  [The mother] advised from my first meeting with her that [the father] lived at their house [in N] and she lived with [Mr Clarence] because his unit was closer to hospitals, doctors and medical assistance should [O] require it.

   11.Following [the father’s] and [the mother’s] separation, [the mother] to my surprise even allowed [O] to have a sleep over at our home in February 2009.  I was concerned about having [O] stay overnight given that [the mother] had told me about brain tumours, fits and oxygen tanks but [A] and [O] were really keen.  [The mother] however said that [O] would be fine.  She appeared to be unconcerned about the possibility of any seizures or anything else.  [The mother] provided me with [O’s] medication which I gave to her at the prescribed time and the oxygen tank, however that was not required.  On the evening of the sleepover [the mother] did go out at dinnertime however she did return later that evening.  [O] was fine.

   31.I found it strange that [O] would always have her oxygen cylinder when she was going to school or to events where tickets were given to children with disabilities but when she attended the school holiday programme she did not have her oxygen cylinder.  I once picked her up from the after school programme at […] and she did not have her oxygen cylinder and I never saw it being put in the car when she went there.  I also recently took [O] to the circus in […] and she did not have her oxygen cylinder with her on that day.  On that same day another lady by the name of […] also took [O] to an earlier session of the circus.”

AFFIDAVIT OF MR H

1. Mr H is a retired builder who resides two houses down from the parties’ property at N Street, N.  He has resided there since 1993. 

2. His evidence is to the following effect:

   “12.To the best of my knowledge [the mother] has never lived permanently at [N Street] since their house was completed.  Any suggestion that she has done so during weekends or during school holidays is untrue.  Prior to the beginning of January 2009 [the father] stayed at the [N Street] property.  He came and went during the days but he returned at night.

   13.Since the beginning of January 2009 and the Domestic Violence Protection Order Court mention date neither of the parties has lived at that property.  Any suggestion that they have done so since then is untrue and is a lie.

   14.From my observation [the mother] has been to the [N Street] property since the beginning of January 2009 until early June on 3 or 4 occasions.  Since [the mother] had access to the tinny boat she would come over and remove items from the house and then go again.  On some of those occasions she attended with [O].  On the other occasions she was accompanied by [Mr Clarence].  The visits lasted 10 minutes to 2 hours.”

3. Paragraphs 23 to 25 are in the following terms:

   “23.Whilst [the mother] was there that weekend she also covered all the downstairs windows with newspaper.  On the sporadic nights since the last Family Court date when she does come to the house to stay overnight she has taken to honking the horn, (it is usually [Mr Clarence’s] car that she comes in), several times obviously to announce her arrival.  Often she arrives at around 10.30 pm.  The same honking performance occurs when she leaves in the morning.

   24.[The mother] turned on the outside downstairs lights on Wednesday 10 June 2009 and they remained turned on because the light switch is inside the house and [the father] has not been able to gain entry to turn them off.  I believe that there are 56 lights throughout the garden and downstairs outside area which have been on all day and all night.

   25.[The mother] was at the house on Monday 22 June 2009 however she did not stay overnight.  Again on Tuesday 23 June 2009 [the mother] came in the morning and left again, she did not stay there that night.  Nor she (sic) stay overnight on Wednesday 24 June 2009.”

4. Paragraph 27 is as follows:

   “27.On Wednesday 1 July 2009 an Energex technician arrived at the front of the [Rittmans’] house.  My wife, [Mrs H], went out and spoke to him because she was concerned that he was perhaps doing some maintenance works in the area and our power supply would also be interrupted too.  [Mrs H] had just put a cake into the oven.  [Mrs H] told me and I very believe that the technician told her that he was turning the power off (at the [Rittmans’]) and it would be off until he was told to turn it back on.”

AFFIDAVIT OF DR G

1. Dr G is a retired anaesthetist who operates a rental business at N directly opposite the N Street home of the parties.

2. In paragraph 9 he notes:

   “9.I have always considered the relationship between [the mother] and [the father] to be very odd because [the mother]] did not reside at the [N Street] home with [the father] as most married couples would do; instead she resided at the home of [Mr Clarence].  I am aware that [the father] would spend evenings and nights at the [N Street] home and then in the morning go to [Mr Clarence’s] unit and get [O] ready for school.”

WIFE’S MATERIAL

·Mother’s response filed 27 April 2009;

·Affidavit of mother filed 27 April 2009;

·Affidavit of mother filed 10 July 2009;

·Affidavit of Mr T (L’s counsellor);

·Affidavit of Occupational Therapist Ms V filed 1 June 2009;

·Affidavit of Angela Grigg filed 27 May 2009 annexing reports of:

a.    OL Senior Neurophysiologist, Royal Children’s Hospital;

b.   Dr W, Consultant Paediatric Cardiologist;

c.   Dr J, Neurologist;

d.   Dr C, Consultant Paediatrician;

e.   Ass/Prof E, Paediatric Gastroenterologist;

f.    Ms JS DSQ Senior Manager.

·Affidavit of Dr LA filed 10 July 2009 (re: mother’s mental state and capacity to parent);

·Affidavit of Mr M filed 10 July 2009 (re: attending changeovers);

·Affidavit Mr K filed 10 July 2009 (re: attending changeovers);

·Affidavit Dr Y filed 8 July 2009 (re: sole use);

·Affidavit Dr WH filed 10 July 2009 (re: sole use).

MR T

1. This witness is L’s counsellor in Melbourne.  He reports that L has expressed a view not to see her father.  L is 14 years of age.  It is common ground that no orders are sought in relation to this child. Mr T’s report has no impact on the specific issues before the Court other than in a general sense noting that the father is alienated from his older daughter.

MS V

1. This witness is an occupational therapist.  She sets out an assessment of O’s physical needs.

2. At page 5 of her report she notes:

   “Presently, she is a patient who requires high care.  She needs an assistant with her at all times.  Any assistant caring for her would need knowledge in nursing care.  They would need to know how to administer medications correctly and would need training in the use of specialised equipment; specifically; cardiac monitor and home oxygen.  They would need to know how to respond to an epileptic seizure.  They would also need to know how to adhere to the stringent hygiene routines that [O] requires.”

3. At page 6 of her report she notes:

   “In my opinion respite would be beneficial for [the mother].  However, as stated previously, any carer would need to be suitably qualified in the areas of nursing and would also need to be aware of [O’s] individual needs associated with brain injury caused by tumours.”

ANGELA GRIGG

1. Angela Grigg is the mother’s solicitor who has sworn an affidavit on

   
   27 May 2009

   annexing reports from the following:

   ·OL – Senior Neurophysiologist, Royal Children’s Hospital;

   ·Dr W, Consultant Paediatric Cardiologist;

   ·Dr J, Neurologist;

   ·Dr C, Consultant Paediatrician;

   ·Ass/Prof E, Paediatric Gastroenterologist;

   ·Ms SH, DSQ Senior Manager.

2. In his report dictated 24 April 2009 in response to a letter from the mother’s solicitors Dr J responded in part:

   “I feel that [O] needs to be supervised closely.  Tuberous Sclerosis Complex is a congenital medical condition.  She will need to be on anti-convulsants indefinitely.  Sometimes it is difficult to control seizures in this condition.  I feel that [O] will benefit from additional therapy such as occupational therapy and speech therapy.  Extra curricular activities such as swimming, dancing and other physical activities would be of benefit to [O] to improve her quality of life.”

1. In his report dated 15 May 2009 Dr C in the penultimate paragraph notes:

   “Certainly [O’s] general health appears to be good.  She is a child who has not required many hospital admissions recently and this in part is due to the excellent care that she receives at home.  At the moment she receives good support in school.  She sees her specialists in Brisbane on a fairly regular basis and she is under the Paediatric Department at [R].  We do not see [O] in the Outpatient Department regularly as often a lot of the issues can be discussed with [the mother] without [O] being physically present in the Department.  However, we would aim to see [O] at least once to twice a per year.  [O] will require ongoing paediatric and specialist paediatric input for the rest of her school years.  Once she has reached adulthood I envisage she will need extra support in the community to enable her to live as independent a life as possible.  She certainly seems to benefit from her extra curricular activities and she seems to enjoy them.  I think these activities are good for her general wellbeing as well as improving her socialisation skills.”

DR LA

1. In a separate affidavit Dr LA annexes a report dated 8 July 2009.  He is the general practitioner who is treating both the mother and O.  In his report at paragraph  3(d) and in the final paragraph he notes:

   “3(d)[O’s] medical condition is serious, it is my understanding that some of her Specialists and care providers tend to reduce [the mother’s] anxieties regarding [O’s] health concerns by avoidance of discussion prognosis or sequelae in the context of clinical privilege and also in an attempt to minimise parental distress overalls.  [O’s] potential health concerns are numerous and potentially serious, I can see no gain in behaviour where her conditions are catastrophied nor can I envisage a condition more catastrophic.  [O’s] condition is genetic and becomes more obvious to her peers and the wider community due to developing stigmatising concerns such as skin disease, incontinence, expressive and receptive speech disorders and behavioural concerns, [the mother] cannot cause [O’s] medical condition. Tuberous Sclerosis Complex is condition of exaggerated and obvious consequences.

   I have observed [the mother] successfully protect this child from the implications of her illness, socially and physically and I have seen [O] behave insightfully regarding her illness; in all aspects [the mother’s] efforts to normalise this child have been admirable and should serve as the ideal model of care for children with physical and intellectual illness.”

WITNESSES – MR M AND MR K

1. These witnesses have sworn affidavits which I find to be of limited assistance.  They have supervised changeovers since the Orders were made on 12 June 2009.  There is no requirement in the orders for changeovers to be supervised but it would appear the mother has arranged for them to attend on certain occasions.

AFFIDAVIT OF MR Y

1. Mr Y swore an affidavit on 8 July 2009.  He says he has visited the mother at the N Street property; “on occasions between February 2009 and July 2009 and occasionally have stayed overnight in the downstairs area.”

2. The witness does not state specifically how many occasions, who else was present or any other details which would assist the Court in inferring that the mother’s evidence that she regularly occupied the N Street property is reliable.

AFFIDAVIT OF DR WH

1. The affidavit of Dr WH is in the same category.  He is the employed at the University of the Sunshine Coast.  He gives evidence that he visited the mother at the N Street property at 7.00 pm on 16 April 2009 to discuss her enrolment.

REPORT OF MS S

1. This report was commissioned by the parties.  At paragraphs 4.35 and 4.36 she observes:

   “4.35[The mother] expressed concerns as to how [the father] intended to ensure [O’s] safety and appropriate supervision, whilst affording her the privacy that she will be needs (sic), particularly in the context of her maturing and him not being able to be involved in showering and so forth.

   4.36For [the mother] this issue linked directly with her concern as to [the father’s] history of inappropriate sexual behaviours which have created concern as to the children being safe unsupervised with him.”

2. In paragraph 4.37 she particularises some of what are described by the mother as “compromising behaviours” exhibited by the father.

AFFIDAVITS OF THE PARTIES

1. I have perused the lengthy affidavits of the parties themselves.  It can simply be observed there is a high level of conflict on the facts.  I am unable to make any determination at this point in time on the credibility of the parties other than in the most general terms.

2. The mother is critical of the poor level of communication between the parties and seems to suggest that this is largely as a result of the father’s conduct.  The text messages annexed to the mother’s affidavit which she deposes have been sent to the father are not exactly communications which would improve relations between the parties.

SUBMISSIONS ON BEHALF OF APPLICANT FATHER

1. In the submissions by Counsel for the applicant father he refers to an affidavit of the mother sworn on 8 January 2009 in the State Magistrates Court in proceedings under the Domestic Violence & Family Protection Act.  Reference has been made to this passage in the judgment delivered on the 11 June 2009 (refer paragraphs 35 and 36 of reasons for judgment).

2. In that affidavit at paragraphs 15 to 17 the mother deposes as follows:

   “15.For the past three years, the pattern of care for the children has been that both the husband and I each care for the children during the school term in different homes, at different times.  During school holidays, I have been and continue to be, the principal carer for both children.  In school holidays, if the children need to be separated because of extracurricular activities then the husband and I adopt the same arrangement as school term otherwise the whole family is in the [N Street] Property.

   16.In 2008 the husband has cared for [O] from 3.00 pm overnight to
   9.00 am.  From 9.00 am to 3.00 pm she attends school.  The husband, during that time, has slept at the home of our friend, [Mr Clarence], of Unit […, N].  [Mr Clarence] has been a friend and supporter of the family for many years, and has helped us care for the children.

   17.In 2008 during school term time I live at the home of a friend [Mr DS] at [M], in return for housework and care.  [L] and I stayed overnight every second Monday and every Tuesday, Wednesday and Thursday, averaging three and a half nights per week at [Mr DS’s] home, due to [L’s] having attended school at [a Sunshine Coast school] and her extensive extracurricular activities and my attendance at the Sunshine Coast University.  We do not stay with [Mr DS] other than during the school term.”

3. At paragraphs 3.13, 3.14 and 3.16 of his submissions Counsel for the applicant father notes:

   “3.13The father takes issue with the mother’s allegations and it is noted that the mother only raised such allegations with any particularity in the interview with Ms [S] in circumstances where the mother in her voluminous affidavit material filed to date has raised no such allegations. 

   (This refers to the compromising behaviour allegations).

3.14The mother in her interview with the family consultant did not particularise her concerns in relation to the father’s capacity to care for [O] by reference to any occasion prior to separation that he did not properly attend to her needs.

31.6.1The mother’s most recent allegations in respect of the father’s alleged history of inappropriate sexual behaviour should be viewed with extreme caution.  The mother in her affidavit sworn 10 July 2009 (sic) in dealing with the orders made by your Honour on 11 June 2009 deposes inter alia:

“…overall contact has progressed quite smoothly.  Most importantly [O] is now spending regular time with her father, which she is excited about.”

1. It is noted from the mother’s affidavit of 8 January 2009 in paragraph 17 that for three and a half days per week on average she would overnight at the home of [Mr DS] with [L].  The obvious inference is the father was at home caring for [O].  The mother does not appear to have had any concerns undertaking this course of study and leaving the child with the father for such extended periods.

2. The inference is obvious that the mother could not have too many concerns about the father’s alleged inappropriate conduct if she is now prepared to give the father 4 nights out of every 14 once he has attended with her on the nominated health professionals.

3. As Counsel for the father observes at paragraph 3.20 of his submissions:

   “3.20The mother in her 30 page affidavit filed 10 July 2009 raises no allegations in respect of the father’s alleged “history of inappropriate sexual behaviour” and deposes in the penultimate paragraph inter alia as follows:

   “I do believe that [the father] has much to offer the children and that he loves them and they love him.  However, for this to work [the father] has to participate in the children’s lives and we need to learn to communicate for the sake of the children.””

4. The father in his affidavit filed on 9 July 2009 at annexures “S” and “T” discloses documents from the Education Queensland file which appear to have been obtained under Freedom of Information laws.  At paragraph 3.27 of his written submissions Counsel for the father notes an entry for January 2009:

   “8.45 am: [O] arrived to school without her oxygen and red bag.  Her medication was in her school bag.  Rang Nurse to arrange back-up oxygen.  [O’s] birthday.  Mother raises issue in respect of [the father’s] attendance.  [Mother] apologised for not sending in oxygen as she hadn’t remembered until 2.15 pm.  [Mother] raises issue in relation to appropriateness of her father attending school.  [Mother] went on to say that she only called into the school, “about twice in five years” and she did not feel it was appropriate for [the father] to call in all the time.  [Mother] stated that [the father] had been repeatedly calling into vacation care.  [Mother] stated that she was concerned about [the father] and [O] and violence.”

5. Assuming for the moment that the entry in Education Queensland’s records correctly records the telephone conversation of this day it is certainly indicative of the father being far more involved in the child’s education than the mother over the period of the past 5 years.  This is corroborative of the father’s evidence.

SUBMISSIONS ON BEHALF OF RESPONDENT MOTHER

1. I accept the submission made that the evidence indicates the mother has been the primary carer for O.  At paragraph 8 of the written submissions by Counsel for the mother the point is made that on the independent medical evidence O has high level needs.  I accept that this is the case.  I accept that the father has been critical as to the extent of extra curricular activities in which the child has been engaged.  The father is also suggesting that the mother over-engages the child with the medical profession generally.

2. At paragraph 9 Counsel for the respondent mother notes:

   “9.In minimising the child’s needs and believing the mother makes it all up and/or drugs the child the father places [O] at risk.  She needs constant supervision; a suite of medications; positioning safely in bed to name but a few.  She also needs certain supports given in an appropriate and private manner: to be taken to the toilet, the nightly insertion of suppositories, creams applied to her nipples, vagina, anus; cares of her thin anus wall (refer […]).

   That the father is silent on some of these care issues denies others and says everything is exaggerated ought give the Court concern.”

3. My concerns are ameliorated somewhat by the fact that the father has on the evidence clearly had a considerable level of involvement in O’s care in the past without incident.  My concern is also alleviated to a high degree by the fact that the mother is agreeable to the father having the child for 4 nights out of 14 provided he attends on the health professionals.

4. I find the situation to be anomalous where the father has had the care of the child for 3 and a half days per week whilst the mother attended her university commitments, where the father clearly had the child on the mother’s evidence from 3.00 pm until 9.00 am of a week day, yet he now cannot have the child in his care unless he attends with the mother on a considerable number of health professionals.

5. The mother’s proposal would require a significant period of time and considerable expense to attend upon the various professionals.  The father presumably has read the reports and is cognisant of the contents of same.  There is a high probability if the parties were to attend at such referrals there would be increased conflict generated.

SOLE USE OF FORMER MATRIMONIAL HOME

1. It is difficult to adjudicate in a situation on an interim basis where there is such a high level of conflict in the factual material before the Court.  This is particularly so where the Court has not had the benefit of cross examination of the parties and their witnesses.  However, for present purposes I find it is likely that the mother and O have predominately stayed at Mr Clarence’s residence as deposed to by Ms Z.  I note that no affidavit has been lodged by Mr Clarence to negate the assertions in Ms Z’s affidavit.  No affidavit has been obtained from Mr DS.

2. Dr G is a retired medical specialist.  He is on friendly terms with the father but I find his observations as to the father’s comings and goings are likely to be reliable.  A similar comment can be made in relation to the N Street neighbour Mr H.  The independent witnesses put forward by the mother give evidence which is not nearly as compelling as the evidence of the 3 witnesses of the father.  Mr Y simply observes that he has attended on an unspecified number of occasions and found the wife at the N Street property. 

3. Dr WH has only attended at the property on the one occasion in April this year.

4. If the above observations be correct the wife has accommodation available for O with which the child is readily familiar.  The father would then be able to move into the former matrimonial home and likewise have accommodation available for her with which she is familiar.  However if the mother’s application for sole use is successful the father would have to provide accommodation for 4 nights out of every 14 with which the child is not familiar.

5. In the event of an emergency it is clear that Mr Clarence’s premises are closer to hospitals and medical services.  As the mother will be having the child for 10 nights out of 14 it is obviously in the child’s general interest that in the event she needs medical care such services be readily available.

6. I observed during the course of submissions that if O’s medical condition is so problematic it is difficult to understand why the parties would have built in such an inaccessible remote location as N Street in the first place.  I do not recall receiving any satisfactory explanation as to why this was done.

7. In view of the evidence from Mr H I express the tentative view that the father would maintain the property in better condition pending sale.  Mr H says that up until January this year the property was well maintained. The mother asserts she has been in occupation since that time.  Mr H says the property has been neglected and run down for the first six months of this year.

8. For the above reasons I propose to order that the father have sole use of the former matrimonial home. 

SOLE RESPONSIBILITY FOR MEDICAL DECISIONS ABOUT O

1. The legislation is quite clear on this aspect that there is a presumption for shared care on all aspects of care, welfare and development of a child. 

2. Counsel for the mother in addressing the changes to the father’s draft orders asserted all of the changes were supported by Ms S in her report.  She quoted Ms S at paragraph 7.13:

   “7.13In order to have unsupervised and, more particularly overnight time with [O], [the father] will need to ensure that he addresses these issues and does not under any circumstances place [O] in a position of risk.  He will need to ensure that he consults and follows medical and paramedical advice as to the management of her overnight and day time routines.”

3. In the three paragraphs immediately preceding this summary Ms S had recorded:

   “7.10[O] is presently having Saturdays and Sundays with [the father] from 7.00 am until 7.00 pm without overnight stays.  This time is unsupervised and there have been no specific concerns as a result of this unsupervised time.  However it is noted that [the mother] has been particularly concerned as to [the father’s] managing the overnight time.

   7.11Of significance is the issue of [the father] exhibiting inappropriate sexual behaviours historically.

   7.12In this context of these issues, the anxiety of [the mother] is a factor that will need to be considered.”

4. What Ms S does not address in making these observations are the matters referred to previously namely:

   ·there is evidence the father has cared for O on her own for overnight periods on numerous occasions in the last five years;

   ·prior to the interviews with Ms S the mother had never made a complaint about inappropriate sexual behaviours. The contents of paragraph 7.11 I find to be inappropriately expressed in the context where the father has denied any such behaviour or otherwise explains such behaviour and the mother has never previously complained of same notwithstanding the volume of material filed.

5. In paragraphs 3.21 and 4.13 of her report Ms S focuses on the mother’s organising the majority of medical and paramedical appointments for O:

   “3.21Evidently the mother has facilitated medical and paramedical consultations for [O].  [The father] noted that despite claiming to be a primary carer for [O] he was involved in appointments in “the early days” and when asked specifically who facilitated appointments in the last 10 years he said the mother did. --

   4.13[The mother] noted that she has always been responsible for [O’s] medical and paramedical follow ups and preparation of her medications and so forth and she has provided instructions for [the father] in this regard, as necessary.  After specific questioning [the father] conceded that in the last 10 years [the mother] has undertake (sic) the majority of medical and paramedical appointments for [O].”

6. The father had the opportunity to read all of the medical reports which have been provided.  The Mother’s own statements to Ms S as recorded in paragraph 4.13 indicate that in the past she has provided instructions to the father in relation to preparation of medications and other needs for the child.

7. In relation to the issue of a shower chair I accept for present purposes the child has been prescribed one by her occupational therapist.  I note for a child who engages in activities ranging from bike riding to horse riding to ballet it is not entirely obvious why she would need a shower chair.  In any event the father has given the undertaking recorded at the outset of these reasons.

8. The premise underlying the report and recommendations of Ms S is a reliance on the mother’s assertion the father has had little input into the overnight care of O in the past.  On the available evidence including sworn evidence of the mother I am not prepared to accept that this is the case.

9. I do not propose to make an order giving the mother sole responsibility in relation to medical decisions about O.  There has not been any need for such an order in the past and I am not convinced there is any basis upon which it could be concluded the father has been obstructive in any fashion with the child’s medical care when satisfied any such treatment is called for.

10. In relation to the remaining issue of the father attending on medical practitioners for instructions reference was made to the father’s claims of the mother over caring for the child.

1. The difficulty with the mother’s proposal is that the child is cared for by those at special school and those engaged in extracurricular activities none of whom has had to receive instruction from the same professionals.  The child has been on a sleepover at Ms Z’s residence.  The child has frequently been in the care of the father in the past.

2. To require the father to attend upon such consultations when there is such a high level of conflict between the parties is a recipe for disaster.

3. I do not propose to make an order in the terms as sought.

SUMMARY

1. I propose to make orders in terms of those proposed by the father.  I do not propose to require an undertaking from the father that he will follow O’s care plans and procedures as summarised in attachment “A”.  Essentially I have formed the view that he has cared for her on many occasions in the past without complaint and without incident.

2. For the reasons previously given I propose to order that the father have sole use and possession of the N Street, N, property until further order.

3. For the reasons given I do not require the father to attend on the health professionals with the mother as set out in attachment “B”.

4. For the reasons given I do not propose to give the mother sole responsibility for medical decisions about O.

5. Orders are to issue in terms of the father’s draft orders.

6. The matter is adjourned to 10.00 am on 16 November 2009 for further review.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry.

Associate: 

Date:  30 July 2009