Solberg and Rounds
[2017] FCCA 1066
•8 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SOLBERG & ROUNDS | [2017] FCCA 1066 |
| Catchwords: FAMILY LAW – Parenting – final hearing – discrete issue of parental responsibility in relation to health issues. |
| Legislation: Family Law Act 1975, ss.4, 60CA, 60CC, 61B, 61C, 61DA, 64B |
| Cases cited: In the Marriage of Hall (1979) 5 Fam LR 609; (1979) FLC 90-713 Lindell & Ranteri [2010] FamCA 52 McCall & Clark [2009] FamCAFC 92 Newlands & Newlands [2007] FamCA 168; 37 Fam LR 103 |
| Applicant: | MR SOLBERG |
| Respondent: | MS ROUNDS |
| File Number: | SYC 3594 of 2009 |
| Judgment of: | Judge Monahan |
| Hearing dates: | 5 and 6 April 2017 |
| Date of Last Submission: | 18 April 2017 |
| Delivered at: | Sydney |
| Delivered on: | 8 June 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Pope |
| Solicitors for the Applicant: | Derek Legal |
| Counsel for the Respondent: | Mr Keller |
| Solicitors for the Respondent: Counsel for the Independent Children’s Lawyer: Solicitors for the Independent Children’s Lawyer: | Thexton Lawyers Ms Tran Legal Aid New South Wales |
ORDERS
THE COURT ORDERS THAT:
Paragraphs 1 to 26 of the Minute attached to the Orders made on 5 April 2017 be discharged.
All extant parenting Orders be and are hereby discharged.
THE COURT ORDERS ON A FINAL BASIS THAT:
The child [X], born 1 August 2007 (“the child”) live with the mother when not spending time with the father pursuant to these Orders.
Subject to paragraphs 5 and 6 herein, the parties have equal shared parental responsibility for the child.
The mother have sole parental responsibility for decisions regarding the child’s education (both current and future), and the mother shall keep the father informed regarding all major decisions that she makes concerning the child.
The mother have sole parental responsibility for decisions regarding the child’s health and medical needs and the mother shall keep the father informed regarding all major decisions that she makes concerning the child including any proposed consultation with medical professionals and she allow the father reasonable opportunity to have an input prior to making the decision.
The child spend time with the father as follows:
(a)For a period of eight (8) days during each of the Autumn school holidays, from 5pm on the second Saturday of the school holiday period until 5pm on the last Sunday of the school holiday period;
(b)For a period of eight (8) days during each of the Winter and Spring school holidays, from 5pm on the first Saturday of the school holiday period until 5pm on the second Sunday of the school holiday period;
(c)During the Summer school holidays commencing in 2017, for the first sixteen (16) days of the school holiday period, from 5pm on the last day of the school term until 5pm on the sixteenth (16th) day;
(d)During the Summer school holidays commencing in 2018 and each alternate year thereafter, for the last twenty (20) days of the school holiday period, from 5pm on the first day of the twenty (20) day period until 5pm on the day prior to the recommencement of school (being the twentieth (20th) day);
(e)During the Summer school holidays commencing in 2019 and each alternate year thereafter, for the first twenty (20) days of the school holiday period, from 5pm on the last day of the school term until 5pm on the twentieth (20th) day; and
(f)At such other times as agreed between the parties from time to time in writing (including by SMS text message).
Until 1 December 2019, for the purpose of facilitating the child’s time with the father pursuant to these Orders:
(a)The mother shall deliver the child to the departure level drop-off point of the Sydney domestic airport within one (1) hour of receiving an SMS text message from the father, informing her that his flight has landed at the commencement of the child’s time with the father pursuant to these orders.
(b)The mother shall collect the child from the express pick-up zone of the Sydney domestic airport within one (1) hour of receiving an SMS text message from the father informing her that his flight has landed at the conclusion of the child’s time with the father pursuant to these orders.
As from 1 December 2019, for the purpose of facilitating the child’s time with the father pursuant to these Orders:
(a)At the commencement of the spending time, the mother shall do all acts and things required to ensure that the child is delivered to the unaccompanied departure gate drop-off point at Sydney Domestic Terminal and the father shall arrange for the collection of the child at the conclusion of the flight at (omitted) Domestic Airport;
(b)At the conclusion of the spending time, the father shall do all acts and things required to ensure that the child is delivered to the unaccompanied departure gate drop-off point at (omitted) Domestic Terminal and the mother shall arrange for the collection of the child at the conclusion of the flight at Sydney Domestic Airport; and
(c)The father shall provide to the mother not less than 7 days prior to the departure flight, by email, a copy of the child’s itinerary.
For the purpose of any flight bookings, the father shall ensure that such flight times will not be before 7pm Sydney time if the child is to travel on a business day (Monday – Friday).
The father be at liberty to travel with the child on domestic air flights to and from (omitted) Airport at any time during the child’s time with him pursuant these Orders.
The father be at liberty to communicate with the child by telephone or FaceTime (provided that both parties have the appropriate technology):
(a)Each Thursday and Sunday between the hours of 7pm and 8pm;
(b)On Christmas Day between the hours of 10am and 11am;
(c)On Father’s Day at 10am;
(d)On the child’s birthday at 7pm on school days, and 10am on non-school days;
(e)On the father’s birthday at 7pm on school days, and 10am on non-school days; and
(f)At such other times as agreed between the parties, and for the purposes of this Order:
(i)The father shall initiate such communication; and
(ii)The mother shall ensure that the mobile telephone is sufficiently charged and serviceable, and that the child is available to receive the father’s call.
When the child is spending time with the father pursuant to these Orders, the mother be at liberty to communicate with the child by telephone or FaceTime (provided that both parties have the appropriate technology):
(a)Each Thursday and Sunday between the hours of 7pm and 8pm;
(b)On Christmas Day between the hours of 10am and 11am; and
(c)At such other times as agreed between the parties, and for the purposes of this Order:
(i)The mother shall initiate such communication; and
(ii)The father shall ensure that the mobile telephone is sufficiently charged and serviceable and that the child is available to receive the mother’s call.
The child be at liberty to communicate with either party by telephone at any other reasonable time that he expresses a wish to do so, and in this regard, the party with the child shall facilitate the child’s communication with the other party.
Each party shall at all times provide the child with suitable sleeping arrangements (including a separate bedroom and bed), and ensure that whilst travelling with the child, the child is provided with a separate bed.
Each party shall:
(a)Inform and keep the other informed at all times of their respective telephone contact numbers, email addresses, and any other information necessary for the child to communicate with the other party, and each party shall notify the other of any changes thereto within forty-eight (48) hours of the date of such change occurring;
(b)In the event that the child is prescribed medication, notify the other as soon as is practicable thereafter, but not later than twenty-four (24) hours after the medication has been prescribed, and ensure that the child’s prescription medication is provided to the other at changeovers;
(c)Follow the treatment requirements made by any medical, therapeutic or allied health care professionals for the child, and ensure that any prescribed medication is administered to the child in accordance with the directions for use (and ensure that the child is aware that such medication is being administered); and
(d)In the event that the child suffers from serious illness or injury, notify the other immediately and provide details of the medical professional or medical facility upon which the child attends.
The mother shall inform and keep the father informed at all times of the names, contact telephone numbers and addresses of all treating medical, therapeutic or allied health care professionals attended upon by the child.
The father shall be entitled to communicate with the child’s treating medical, therapeutic or allied health care professionals for the purpose of obtaining information as to matters relevant to the child’s health and welfare, including information regarding any treatment recommended or undertaken, and these Orders shall be sufficient as authority for this purpose.
Each party be at liberty to attend any school functions, activities and events that allow for parental attendance, including but not limited to, concerts, plays, sporting fixtures, open days, excursions, fetes, exhibitions, speech nights, assemblies, parent and teacher interviews, canteen duties, and social functions.
This Order authorises any school attended by the child to provide to each party, copies of any material ordinarily provided to parents, including but not limited to, school reports, reports on school progress and behavioural issues, school photograph order forms, circulars and school bulletins, invitations and notices of parent and teacher meetings and sporting events, and in the event that the child’s school refuses or is unable to provide copies of school reports to both the mother and the father individually, then the mother shall provide copies to the father within forty eight (48) hours of receipt of same.
If information is not otherwise available via the “(omitted school website).”, the mother shall email to the father copies of all medical reports (provided they are in her possession), school reports, awards and reports relating to the child within forty eight (48) hours of receipt of same and shall notify the father of:
(a)Any schedule times for parent/teacher interviews; and
(b)Any ceremony (religious or otherwise) involving the child, so that the father may elect to make his own appointment for parent/teacher interviews or attend.
Without admissions, each party be and is hereby restrained by injunction from:
(a)Showing the child documents in these proceedings, or discussing these proceedings or any other legal proceedings in which either party is or has been a party in the presence or hearing of the child, and each party shall use their best endeavours to ensure that no other person does so in the presence or hearing of the child and immediately remove the child from any environment that exposes him to the same;
(b)Attempting to influence the child’s views in relation to the time that he spends with the father or the child’s living arrangements with the mother;
(c)Abusing, insulting, belittling, rebuking or otherwise denigrating the child, the other party, or any member of the other party’s household or extended family to or in the presence or hearing of the child or by use of social media, and each party shall use their best endeavours to ensure that no other person does so in the presence or hearing of the child and immediately remove the child from any environment that exposes him to the same;
(d)Exposing the child to family violence including emotional or verbal abuse; and
(e)Striking or applying any form of physical chastisement to the child, and each party shall use their best endeavours to ensure that no other person does so and immediately remove the child from any environment that exposes him to the same.
Pursuant to Section 11(1)(b) of the Australian Passports Act 2005 (Cth) (or any Act replacing that Act and making like or similar provision), the child be permitted to travel internationally.
Pursuant to Section 65Y(2)(b) of the Family Law Act 1975 (Cth), each party be at liberty to take the child from Australia to a place outside of Australia during the time that the child is living with or spending time with them, or for such other period as agreed between the parties from time to time in writing, provided that:
(a)The child is not taken to a country or jurisdiction that:
(i)Is not a Convention country listed in Schedule 2 of the Family Law (Child Abduction Convention) Regulations 1986; and
(ii)Has been classified by the Department of Foreign Affairs and Trade as ‘Level 2 - Exercise a high degree of caution’ or equivalent or higher at the date of departure;
(b)The travelling party provides to the other:
(i)Not less than two (2) weeks prior to the intended departure date, written notice of his or her intention to travel;
(ii)Not less than two (2) weeks prior to the departure date, a detailed itinerary of the proposed travel, including details of departure and return dates, each destination, flight numbers, methods of travel, where the child will be staying, copies of documents sufficient to demonstrate that the child and the travelling party each have a paid return ticket; and
(iii)Not less than two (2) weeks prior to departure, copies of certificates of travel insurance which include medical cover for the child and the travelling party and which cover the child and the travelling party for each relevant destination and duration of travel.
(c)The travelling party ensures that the child is fully vaccinated as recommended by the child’s treating general medical practitioner for each travel destination.
Pursuant to section 11(4)(b) of the Australian Passports Act 2005 (Cth) (or any Act replacing that Act and making like or similar provision) the mother be permitted to apply for and have issued to her an Australian passport for the child, or renew any such passport in the absence of consent or otherwise of the father, AND IT IS REQUESTED that the Department of Foreign Affairs and Trade provide whatever assistance is necessary in relation to the issue or renewal of any such passport.
The cost of the child’s passport application and any subsequent renewal of the child’s Australian passport shall be born equally between the parties.
The mother shall hold any Australian passport issued to the child until the child attains the age of eighteen (18) years, save and except when the father seeks the child’s Australian passport to be released for the purpose of overseas travel in compliance with these Orders, and in this regard, the mother shall not unreasonably withhold the child’s Australian passport in such circumstances.
The father shall return the child’s Australian passport to the mother as soon as is practicable, but otherwise within seven (7) days of the child's return to Australia.
In the event that there is a dispute about the child or about the interpretation, implementation or enforcement of these Orders, the parties, before making any further application to a court shall:
(a)Attend counselling or mediation with an organisation recognised under the Family Law Act 1975 (Cth) or by the Commonwealth Attorney-General; or
(b)Participate in family dispute resolution with a Family Relationship Centre or a person authorised under section 10G of the Family Law Act 1975 (Cth).
AND THE COURT FURTHER ORDERS THAT:
The appointment of the Independent Children’s Lawyer be discharged.
All extant applications be otherwise dismissed.
AND THE COURT NOTES THAT:
A.Paragraphs 3 to 5 and 7 to 32 of these orders restate the minute of consent orders, with agreed amendments, which were made in the orders of 5 April 2017.
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.
IT IS NOTED that publication of this judgment under the pseudonym Solberg & Rounds is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 3594 of 2009
| MR SOLBERG |
Applicant
And
| MS ROUNDS |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings between the Applicant, MR SOLBERG (“the father”) and the Respondent, MS ROUNDS (“the mother”).
The relevant child of their relationship is [X] born (omitted) 2007 (“[X]” or “the child”).
To their credit, the parties were able to resolve all issues in dispute on a final basis, with the exception of whether the mother should have sole parental responsibility for medical/health decision making (as the mother and the Independent Children’s Lawyer seek) or whether that aspect should remain within the ambit of ‘equal shared parental responsibility’.
At the final hearing each party was represented by counsel; Mr Pope appeared for the father, Mr Keller appeared for the mother, and Ms Tran appeared on behalf of the Independent Children’s Lawyer (“the ICL”).
Unless otherwise stated, any statutory references in these reasons will be to the Family Law Act 1975 (“the Act”).
Background
Relationship history
The father was born (omitted) 1974 and is currently 43 years of age. The mother was born (omitted) 1981 and is currently 35 years of age.
The parties commenced a relationship in 2004.
The child of the relationship, [X], was born (omitted) 2007 and is nine years of age.
The parties separated in September 2008.
The mother is currently in a relationship with Mr R and they have twin sons together, currently aged (omitted). The father is not presently in a relationship.
The father is currently living in (omitted). The mother lives in Sydney.
Procedural history
Final orders in this matter were made by Federal Magistrate Walker on 13 August 2010.
The father filed his Initiating Application on 3 November 2014. The mother filed her Response on 27 January 2015.
The matter first came before me on 29 January 2015, at which time interim orders were made by consent, including an order for the parties to have “joint parental responsibility” for the child.[1]
[1] Paragraph 1 of the Minute attached to the Orders dated 29 January 2015.
On 25 March 2015, I made orders in Chambers for the appointment of an Independent Children’s Lawyer.
On 15 May 2015, I made orders, inter alia, for a family report to be completed and for Dr U to complete a report. I also noted that day that the father would retain and fund a report by Dr O and distribute that report to the Court and the parties upon completion.
On 19 April 2016 the matter was set down for final hearing on 5 April 2017 for no longer than three days.
Areas of agreement
To their credit, the parties were able to reach agreement in respect of all issues in dispute on a final basis, with the exception of parental responsibility in relation to health.
On 18 April 2017 the parties jointly requested by email to my Chambers that the agreed final orders be restated in the orders made in relation to the discrete issue. The Court granted this request and the final orders agreed to are set out at the commencement of these reasons.
Proposals
The father proposes that there be an order for equal shared responsibility. This is opposed by the mother and the ICL but only in relation to long-term medical/health decision-making.
Issues
As stated, the only outstanding issue for the Court to determine is whether the mother should have sole parental responsibility for the child in relation to health, or whether that issue should fall within the ambit of equal shared parental responsibility.
Evidence
Father
The father relied on the following documents at the final hearing:
·Initiating Application filed 3 November 2014;
·His affidavit sworn and filed 20 March 2017; and
·His affidavit sworn and filed 4 April 2017.
The father did not tender any further documents at the hearing and was not required for cross examination.
Mother
The mother relied on the following documents at the final hearing:
·Response filed 27 January 2015; and
·Her affidavit sworn and filed 31 March 2017.
The mother did not tender any further documents at the hearing and was not required for cross examination.
Independent Children’s Lawyer
The Independent Children’s Lawyer tendered the following documents at the final hearing:
·Report by Dr O dated 26 October 2015 (“ICL1”);
·Tabbed pages from documents produced on subpoena from Dr U, (omitted medical centre) (“ICL2”); and
·Tabbed pages from documents produced on subpoena from (omitted) Primary school (“ICL3”).
At this stage of these reasons I note that a letter from Dr U dated 12 March 2014 which formed part of “ICL2” includes the following statement at page 1:
On application of DSM-5 criteria for ADHD today, [X] clearly fulfils combined type criteria. In the consultation today he was unbelievable distractible, poorly focused and fidgety. It was impossible to have a conversation with him due to his distractibility.
Further, I note that at page 3 of his report, Dr O states the following:
My diagnostic impression is that the description of [X]’s behavioural difficulties by both parents fulfils the diagnostic criteria for Attention Deficit Hyperactivity Disorder, combined presentation, and that the medication that he is being prescribed by paediatrician Dr U is appropriate and beneficial …
Family consultant
Ms A gave evidence by telephone on the second day of the hearing.
Family report
The interviews and observations for the Family Report[2] were conducted by Ms A on 18 and 21 December 2015 and 28 January 2016.
[2] The Family Report was entered into evidence and marked as Exhibit “A.”
Ms A outlines the relevant background, current parenting arrangements, proposals and issues in paragraphs 1 to 11. She then goes on to outline her interview with the father in paragraphs 12 to 23, and her interview with the mother in paragraphs 24 to 35. Ms A also interviewed Ms S (the paternal grandmother),[3] Ms C (the paternal aunt),[4] and Mr R (the mother’s partner).[5] Details of Ms A’s interview (and observations) with [X] appear in paragraphs 44 to 48.
[3] Family Report, paragraphs 36 to 38.
[4] Family Report, paragraphs 39 to 40.
[5] Family Report, paragraphs 41 to 43.
Ms A provides her observations in paragraphs 49 to 52. In summary she states that:
·The father “demonstrated a patient, supportive, affirming, education oriented approach to [X] and an authoritative parenting style” and “their relationship appeared comfortable, warm and spontaneous”.
·[X] greeted the mother “affectionately” and the mother “demonstrated a child focused, educative, warm approach to their interactions”; they “appeared to have a dynamic, warm, satisfying relationship”.
·The parents disagree as to the treatment of [X]’s diagnosed Attention Deficit Hyperactivity Disorder (“ADHD”) and this is a main issue in dispute.
·The available information suggests that:
o [X] suffers from the condition of ADHD;
o his social development and ability to concentrate has been impacted by the ADHD; and
o that he has responded well to treatment with medication.
The father’s “opinion about [X]’s medical treatment does not seem as well informed as” the mother’s and “nor is it consistent with the professional opinions of those who have assessed and teach [X]”.
·The mother “impressed as dedicated to [X]’s care and attuned to his behavioural problems and their management. She appears to be well informed about the nature of ADHD and to have liaised with the school about [X]’s problems and plans for him. She appears to have the support of Mr R in both parenting [X] and their twin baby boys. The information gained from this assessment suggests that Ms Rounds is a capable parent with a positive parenting style”.
·The father “impressed as a willing parent who would like to develop a stronger relationship with [X]”.
·The “quality of the co-parenting relationship impresses as poor”; the parties appear unable to discuss the simplest arrangements for the child and “the pattern of their relationship over recent years suggests that it is unlikely that a flexible, cooperative, communicative relationship will quickly develop into the future”.
·It may be difficult for these parents to manage equal parental responsibility.
·[X] is a sensitive child with a diagnosis of ADHD and “will benefit from firm, caring authoritative parenting and a stable home environment”.
Ms A thereafter provides her evaluation in paragraphs 53 to 61. In summary she states that:
·The child “impressed as a well-cared for and much loved …. Each parent’s description of [X], in combination with the observations and interviews suggest that he is thoughtful child who is sensitive to environmental factors, especially the dispute between his parents”.
·Apart from their dispute about where [X] should live, “the main issue over which the parents disagree appears to be the treatment of [X]’s diagnosed ADHD”.
·The available information is consistent and suggests that the child “suffers from the condition of ADHD; his social development and ability to concentrate has been impacted by the ADHD; and that he has responded well to treatment with medication”.
·The father’s opinion about the child’s medical treatment does not seem as well informed as the mother’s and “nor is it consistent with the professional opinions of those who have assessed and teach [X]”.
·The mother “impressed as dedicated to [X]’s care and attuned to his behavioural problems and their management. She appears to be well informed about the nature of ADHD and to have liaised with the school about [X]’s problems and plans for him … The information gained from this assessment suggests that [the mother] is a capable parent with a positive parenting style.
·The father impressed as “a willing parent who would like to develop a stronger relationship with [X]”;
·The quality of the co-parenting relationship impresses as poor; the parties “appear unable to discuss the simplest arrangements for [X] at present. The pattern of their relationship over recent years suggests that it is unlikely that a flexible, cooperative, communicative relationship will quickly develop into the future … It may be difficult for these parents to manage equal parental responsibility”.
·“[X], as a sensitive child with a diagnosis of ADHD, will benefit from firm, caring authoritative parenting and a stable home environment. Children who are raised in an environment of hostility or experience ongoing acrimony between their parents are vulnerable to social and emotional difficulties. [X]’s behavioural difficulties will most likely be exacerbated by further family stress in general, especially that which is related to him such as tension and uncertainty about the parenting arrangements. The resolution of the Court proceeding will no doubt reduce the stress levels on [the parties]”.
In conclusion, Ms A recommended the following outcome at paragraphs 62 to 65:
·that the mother hold parental responsibility for [X];
·that [X] live with the mother;
·that [X] spend time with the father for half of two of the three short school holidays and, in staged increments, build up to half of the long Christmas school holidays; and
·that the parents follow medical and educational advice from [X]’s treating doctors and his school with regard [X]’s diagnosis of ADHD.
Cross examination
Ms A was ultimately required for cross-examination.
Overall, Ms A presented as a reasonably confident witness.
Ms A commenced her evidence by confirming her recommendations. That said, following an appraisal by the ICL of the consent orders that had now been made that resolved all issues save the discrete parental responsibility issue, Ms A changed her view. Ms A stated that given the scope of the final orders that were made by consent that she could now support the parties having equal shared parental responsibility for medical/health issues.[6] As a consequence of this change in her view, the father thereafter did not seek to cross-examine Ms A however (not surprisingly) the mother now wished to cross-examine her.
[6] Transcript, 6 April 2017, pages 12 to 13.
During her cross-examination by the mother it would be fair to say Ms A revised some of her earlier comments. I note in particular the following comments that Ms A made at the conclusion of her evidence:
… given all that marvellous work that has been made in the agreements and given that there has been progress made, clearly, in how they communicate with each other via electronic means, I’m hesitant to say that I think that the father now shouldn’t have parental responsibility for health. However, there is the problem of distance and there is a problem of the history of the approach that Dad takes around the ADHD. That needs to be weighed up with a healthy scepticism about medical treatments, which each parent is entitled to and that’s why they need to exercise parental responsibility, I think. So I guess it depends on whether Mr Solberg has crossed the line and in his disagreements and the conflict around [X]’s health becomes an additional source of stress, rather than benefits [X] and the mother in caring for him on a daily basis. So it’s probably a line ball because I have heard of all those extra agreements already made. I probably don’t feel as firm on the recommendation I made in my report but I probably might leave it to his Honour to think more about it rather than me … on what side I think it should be but to sum, I probably say I wouldn’t feel as firm as I do at all about what I wrote in the report.[7]
[7] Transcript, 6 April 2017, pages 17.
At this point I note and take into account the decision of the Full Court of the Family Court of Australia (“the Full Court”) in In the Marriage of Hall (1979) 5 Fam LR 609; (1979) FLC 90-713. In this case, the Full Court provided an authoritative statement about how family reports should be treated in proceedings such as this case.[8]
[8] In the Marriage of Hall (1979) 5 Fam LR 609 at 614-616; (1979) FLC 90-713 at 78,819-78,820 (per Evatt CJ, Asche SJ and Hogan J).
Given that Ms A is an independent party in these proceedings, the Family Report and the recommendations contained therein, as expanded upon in her oral evidence, are entitled to be given some evidentiary weight by the Court. That said, Ms A was ultimately ambivalent on the remaining issue in dispute. Nevertheless, it is clear that the parties carefully considered Ms A’s other recommendations and were ultimately able to reach agreement on the vast majority of parenting issues that has been in dispute prior to and during the course of this dispute.
I will now consider the parenting dispute in light of the statutory pathway and applicable evidence.
Legislative requirements and discussion
All parenting proceedings are governed by the provisions of Part VII of the Act.
Parenting orders are defined in section 64B of the Act and provide for, inter alia:
·where a child is to live;
·the time a child spends with another person; and/or
·otherwise allocate parental responsibility in relation to a child (which is the only dispute now before me).
Section 60CA of the Act makes it clear that, for the purposes of making a parenting order, the Court must regard the best interests of the child, as the paramount consideration. What is considered to be in the best interests of a child in parenting disputes depends on the particular circumstances in each case, as different circumstances require different resolutions.
That said, to determine the best interests of a child, the Court must consider the primary and secondary considerations in section 60CC of the Act. These will be considered in light of the evidence shortly. Before doing so, however, I will make some general comments about the law relevant to parental responsibility and its allocation.
Parental responsibility
Section 64B(2) of the Act stipulates that a parenting order may include the allocation of parental responsibility for a child. That order “may deal with the allocation of responsibility for making decisions about major long term issues in relation to a child”.[9] In the absence of a parenting order, section 61C of the Act stipulates that “each of the parents of a child who is not 18 has parental responsibility for the child.”
[9] Section 64B(3) of the Act.
Section 61B of the Act states that parental responsibility “means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.” This not only includes those duties and responsibilities relating to such matters as health and education, but also the “general direction in life.”[10]
[10] Lindell & Ranteri [2010] FamCA 52 at [31] (per Cronin J).
In section 4 of the Act, the relevant definition of what the law expects of parents in relation to this decision-making states:
‘major long-term issues’, in relation to a child, means 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.
It is clear therefore that the effect of the Court not making an order for parental responsibility would be that parental responsibility could be exercised by both parents either jointly or independently. Given the circumstances of this case, that may not be appropriate. That said, it is possible for the Court to order that one or more aspects of parental responsibility (eg. health) be allocated to one parent alone and the remaining aspects either subject to no order or an order for shared parental responsibility. Such possibilities were discussed by the Full Court of the Family Court (“the Full Court”) in Newlands & Newlands [2007] FamCA 168; 37 Fam LR 103.[11]
[11] Newlands & Newlands [2007] FamCA 168 at [84]-[91] (per Bryant CJ, Finn & Boland JJ).
In this case, the mother and the ICL propose that the mother have sole parental responsibility in relation to long-term medical/health decision-making. This is opposed by the father who seeks an order for equal shared responsibility. The parties have already agreed that, save for decision-making in respect of education and health, they should have equal shared parental responsibility. I note again that despite their dispute over medical/health decision-making, the parties have agreed that the mother should have sole parental responsibility in relation to education decision-making.
When making a parenting order, section 61DA(1) of the Act requires the Court to presume that it is in the best interests of a child for his or her parents to have equal shared parental responsibility.
However, section 61DA(2) of the Act makes it clear that the presumption does not apply if there are reasonable grounds to believe that there has been abuse of a child or family violence. While I note that there are some historical allegations raised in the evidence that were untested, I am satisfied that the presumption is not rebutted by this criteria.
In addition, under section 61DA(4) of the Act, the presumption may be rebutted if its application could be contrary to a child’s best interests. Those interests are determined by reference to the matters in section 60CC of the Act in light of the evidence. Clearly, there is a dispute between the parties as to whether they should jointly share health/medical decision making, or not.
If the presumption of equal shared parental responsibility is not applied, or is rebutted, then the Court must still make an order which is in the best interests of the child (again, taking into account the considerations set out in section 60CC of the Act).
Best interests of children
As stated, the Court is under an obligation to make parenting orders that it determines is in the child’s best interests. For this purpose, the Court will now turn to consideration of the factors in section 60CC of the Act in the context of this case. At this stage I note that, pursuant to section 60CC(2A) the Court is required to give greater weight to section 60CC(2)(b) as against section 60CC(2)(a).
Primary considerations: Section 60CC(2) of the Act
Section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child’s parents
The Full Court considered this provision and the concept of “meaningful relationship” in McCall & Clark [2009] FamCAFC 92 (“McCall”).[12] In summary, what the Court is required to do is consider and weigh the available evidence (as at the date of the hearing) and determine (assuming the Court is satisfied that it is in the child’s best interests) how and what orders can be framed in order to ensure that the children have a meaningful relationship with both their parents.
[12] The Full Court, comprised of Bryant CJ, Faulks DCJ, Boland J.
This criterion is not specifically relevant to the discrete dispute before me. As stated, the parties have agreed on a final basis for the parties to have equal shared parental responsibility for the child in relation to all matters, with the exception of health, and for the child to spend time with the father for a period of 8 days in each school holidays, and 16 days in the long summer school holidays in 2017 which increases to 20 days in 2018.
Section 60CC(2)(b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
It is clear that the parties have had ongoing intractable conflict in the past. That said, and as stated, the parties were able to settle their dispute on a final basis in respect of all issues, with the exception of parental responsibility for health/medical issues.
The ICL submitted that although the father has the child’s welfare in mind, his views and actions have not been in the best interests of the child in relation to [X]’s consultations and treatment for ADHD. The ICL drew the Court’s attention in particular to the correspondence between the father and Dr U (“ICL2”) and records of conversations between the father and [X]’s teachers at (omitted) Primary School (“ICL3”). Overall, the ICL submitted that:
… there is ample evidence to say the medication has been working and [X] is being monitored by Dr U, his paediatrician, also being monitored by the school, also being monitored by the GP, all supporting the treatment. The ICL’s concern is the father may take it upon himself and not giving [X] the medication he requires ...[13]
[13] Transcript, 6 April 2017, page 22.
As stated, the family consultant also expressed the view in the family report and during cross examination that the father’s approach to the child’s consultations and treatment in relation to ADHD was problematic.
Additional considerations: Section 60CC(3)
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
This consideration is not relevant to the present discrete dispute.
(b) the nature of the relationship of the child with each of the child's parents, and other persons
The child appears to have a close and loving relationship with both parties.
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity to participate
It is not disputed that both parties have actively taken the opportunity to participate in making major long term decisions for the child, however, as stated, the parties have disagreed as to the treatment of [X]’s ADHD.
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
The final consent orders provide for the child to live with the mother. The mother states that she receives approximately $35 a month in child support from the father.[14]
(d) the likely effect of any changes in the child’s circumstances
[14] Mother’s affidavit sworn and filed 31 March 2017, paragraph 29.
The parties presently have equal shared parental responsibility for the child in relation to health/medical issues pursuant to the interim consent orders made on 29 January 2015.
In the event that the father’s proposal is favoured, this would not be a change to the existing order for equal shared parental responsibility. If the mother and ICL’s proposal was favoured, the mother would have sole parental responsibility for health and medical issues relating to the child.
The mother and ICL submit that for the mother to have sole parental responsibility for the child in relation to health would be a positive change in [X]’s best interests as it would lessen the stress and conflict for the parents and therefore the child.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
This consideration is not directly relevant to the discrete dispute.
(f) the capacity of each of the child's parents; and any other person to provide for the needs of the child, including emotional and intellectual needs
This is a relevant consideration. Ms A states at paragraph 55 in her report that the mother
impressed as dedicated to [X]’s care and attuned to his behavioural problems and their management. She appears to be well informed about the nature of ADHD and to have liaised with the school about [X]’s problems and plans for him ...
As stated, Ms A in her report is expresses the view that the father’s “opinion about [X]’s medical treatment does not seem as well informed as” the mother’s and “nor is it consistent with the professional opinions of those who have assessed and teach [X]”.
In response, the father submits that he concedes that the child requires ongoing treatment for ADHD and argues that he seeks to explore additional avenues alternative to medication, including seeking the advice of psychologist Mr N. Although it is positive that the father seeks to be actively involved in the child’s treatment process, the Court notes that this is in the context of the child already having consulted with Dr O and Dr U, who provide a consistent view as to [X]’s diagnosis and treatment for ADHD, and also with clear evidence from the child’s teachers as to [X]’s significant improvement in learning and behaviour at school since commencing the prescribed medication.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
I reiterate earlier comments in these reasons.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
This consideration is not relevant to the present dispute.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
I reiterate earlier comments in these reasons.
(j) and (k): family violence and family violence order provisions
This consideration is not relevant to the present dispute.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The parties’ co-parenting relationship in respect of making medical-related decisions for the child has been poor. An order for the mother to have sole parental responsibility for the child’s health would limit (if not prevent) ongoing conflict between the parents.
There is a likelihood of further proceedings in the event that equal shared parental responsibility is favoured for medical decision-making.
(m) any other fact or circumstance that the court thinks is relevant.
There are no other facts or circumstances that require comment that have not already been discussed in these reasons.
Conclusion
Having regard to the respective applications and submissions in light of the available evidence and relevant statutory provisions, the Court is satisfied and determines that the mother should have sole parental responsibility for the child in relation to health/medical issues. The Court finds that such an arrangement is in the best interests of [X]. This order will be conditional on the mother undergoing a consultative process with the father prior to making such decisions, as proposed by the ICL.
There will be orders and Notations of the Court to reflect this decision. As stated, the orders will restate the orders which were agreed to on a final basis by the parties.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Monahan
Date: 8 June 2017
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