Trent and Trent (No. 2)

[2014] FamCA 725

FAMILY COURT OF AUSTRALIA

TRENT & TRENT (NO. 2) [2014] FamCA 725

FAMILY LAW – CHILDREN – review of Registrar’s decision – interim parenting orders – spend time arrangements – medical treatment

Family Law Act 1975 (Cth) ss 62B, 65DA(2)

APPLICANT: Mr Trent

RESPONDENT: Ms Trent

INDEPENDENT CHILDREN’S LAWYER: Mr Wilkins

FILE NUMBER: SYC 5653 of 2013

DATE DELIVERED: 13 August 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 13 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Clarke

SOLICITOR FOR THE APPLICANT: Paltos Briggs Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms Santone

SOLICITOR FOR THE RESPONDENT: Santone Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Wilkins

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Phillip A Wilkins & Associates

Orders

IT IS ORDERED UNTIL FURTHER ORDER

1. That the children D born … 2009, C born … 2010 and U born … 2012 spend time with the father as follows:

   (a)from after school Friday (or 3.30pm if not a school day) until 5.00pm on Sunday in each alternate week, commencing 22 August 2014; and

   (b)from after school Wednesday (or 3.30pm if not a school day) until 8.30am on Thursday each week commencing today, 13 August 2014.

2. That Order 1 herein be suspended for the period from 25 September to 2 October 2014 (inclusive) to allow the mother to take the children on a holiday.

3. That the father collect the children from the mother’s home at the commencement of time with him and return them to the mother’s home at the conclusion of the time.

4. That each parent do all things possible to ensure that no other family member is present at times when the children are handed over from one to the other or at times when they attend any function at the children’s school or pre-schools.

5. That each parent be at liberty to telephone the children every second day that the children are in the care of the other parent between 6.00pm and 6.30pm and that each facilitate the children’s telephoning the other parent at any time at the request of a child.

6. That in the event that the children require medical treatment, other than in the event of an emergency, they are to be taken to the B Medical Practice.

7. That each party shall authorise the B Medical Practice to provide to the other any information held by the B Medical Practice about the children on request.

8. That each parent notify the other by email, within 7 days of a child’s being taken to the General Practitioner, of the reason for the consultation and the advice given by the doctor and within that time provide a copy of any document including but not limited to reports, referrals, prescriptions.

9. That each party ensure that any medication prescribed by the General Practitioner is administered in accordance with the pharmacist’s instructions.

10.That each party is restrained from taking the children for any appointment with any medical practitioner, psychologist, psychiatrist or counsellor other than at the B Medical Practice without the express consent of the other.

11.That the husband forthwith deliver the children’s Blue Books to the wife.  

12.That this matter be allocated to the docket of the Honourable Justice Rees.

13.That the matter be listed for mention on 13 April 2015 at 10 am before the Honourable Justice Rees when the matter will be allocated dates for hearing provided that the report of Dr E is available and each party has filed and served all affidavit material upon which it is sought to rely.

14.That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

15.That leave be given to the parties to inspect documents produced on subpoena from F Medical Practice, G Hospital, Dr H, I Childcare Centre, Health Insurance Commission and J Medial Practice.

16.That leave be granted to the Independent Children’s Lawyer to photocopy any documents produced on subpoena for the purpose of providing that information to Dr E.

17.That leave is granted to the Independent Children’s Lawyer to provide copies of any relevant documents to Dr E.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Trent & Trent (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5653 of 2013

Mr Trent

Applicant

And

Ms Trent

Respondent

REASONS FOR JUDGMENT

1. Before the Court are proceedings of an interim nature in relation to three children, D born in 2009, C born in 2010 and U born in 2012.

2. Their parents are Ms Trent, to whom I shall refer as the wife, and Mr Trent, to whom I shall refer as the husband.

3. It is necessary, for the purpose of the applications before the Court, to give a brief history. 

4. Prior to their separation the parties and the children lived in Singapore where the husband was employed in a finance industry role.

5. On 15 August 2013, the wife returned to Australia with the children. 

6. The husband instructed the Singapore Central Authority to commence proceedings under the Hague Convention to secure the return of the wife and the children to Singapore. Those proceedings were ultimately discontinued on 16 December 2013 when the parties entered into consent orders which contemplated that the husband would continue to live in Singapore and the wife and the children would live in Australia. Those orders were final orders.

7. When the orders were made in December 2013, the children were almost five, three and a half and 17 months old respectively. The orders provided for day time as the only time between the husband and the youngest child when the husband was in Australia and for overnight time with the older children during those periods.

8. It is implicit, in the making of those final orders by consent, that each parent believed that it was in the best interests of the children to live in the primary care of the wife and for the husband to live in Singapore and see the children monthly.

9. The husband spent time with the children in December 2013 in accordance with the orders. 

10. He did not come to Australia in January 2014.   

11. He spent time with the children in Australia in February 2014.

12. On 3 March 2014, the husband resigned from his employment in Singapore and he again travelled to Australia in that same month. The husband collected the children on 21 March 2014 and kept them with him for seven days.

13. Whether he did so in accordance with the terms of the orders of 16 December 2013 is a matter that cannot be determined in an interim hearing and which will no doubt be the subject of evidence in the final proceedings. However, I am mindful of the fact that the youngest child had not spent any overnight time with the husband since August 2013 when the parties lived together.

14. On 16 May 2014, Senior Registrar Campbell made orders on the application of the wife. The wife’s application was consequent upon the husband not returning the children.

15. The matter comes before the Court now by way of review of the orders of the Senior Registrar and therefore proceeds by way of hearing de novo of an interim application.

16. The parents have equal shared parental responsibility pursuant to the orders of 16 December 2013 but they agree that it would be inappropriate, on an interim basis, for the Court to consider whether the children should have equal time with each parent.

17. There is no evidence before me of the views expressed by the children, and having regard to their ages, those views would not be given any great weight.

18. The wife’s application before me is that the orders of the Senior Registrar should remain in place. The husband seeks to extend the time which he spends with the children.

19. The orders of the Senior Registrar have been on foot since 16 May 2014, for a period of three months, and the children have all been spending overnight time with the husband on alternate weekends. It is therefore implicit in the wife’s position that overnight time with the husband is appropriate.

20. However, it is equally clear that the wife has been the primary carer of the children since their birth. Between August 2013 and August 2014, the children therefore have spent most of their time with the wife. Their stable and secure base must therefore be with her.

21. Each of the parents has deliberately excluded the other from significant decisions about the children’s health and more will be said about that issue later in these reasons.

22. The husband has resigned from his employment and has no income. Since 5 March 2014, the husband has provided no financial support for the children. It is the husband’s evidence that his parents have provided him with approximately $75,000 since March 2014 but none of that money has been applied by him to the support of the children.

23. In addition to that money, the husband has paid legal fees of $239,357. There is no evidence before me of the source of those funds but I note that $121,520 was paid in legal fees by the husband, or on his behalf, at a time when the husband was providing no support for the children.

24. The proceedings before me are interim proceedings. There are many factual issues which cannot be determined. There is no expert evidence before me which assists in making a decision about what orders will be in the best interests of the children.

25. In due course I will have the benefit of a report from a child and family psychiatrist, Dr E, and it is agreed between the parties that he will be instructed and that his interviews will take place in February 2015. It is therefore anticipated that the proceedings will be heard, at best, in the middle of 2015.

26. It is necessary to put in place orders that will provide a settled structure for the children for a period until the hearing, ensuring that they have sufficient time with the husband to support their meaningful relationship with him, while at the same time giving them stability and security with their primary carer.

27. The evidence of the husband is that the current orders are working well for the children and that they are enjoying their time with him. The wife supports the continuation of the current regime.

28. Since the regime that I will put in place today will prevail for approximately a year, it is, in my view, appropriate to increase the time the children spend with the husband. However, there is no evidence before me to suggest that extending that period by a significant amount, especially when the youngest children will be removed from their primary carer, is in their interests.

29. Having regard to the fact that the youngest child is just two years old, it is necessary to proceed with caution so as not to impose upon him a regime that separates him inappropriately from his primary carer. 

30. I propose to extend the children’s time with their father by allowing a further overnight period each Wednesday.

31. Each parent raises concerns, before me, about the other having inappropriately taken the children to see medical practitioners. It is not necessary, for the purpose of these proceedings, to examine those actions in detail. Again, I have no doubt that those matters will be the subject of extensive evidence in the final proceedings.

32. It is sufficient to say that the parents have equal shared parental responsibility and neither parent is entitled to authorise medical treatment for the children without the consent of the other.

33. It is important that the children are treated in only one medical practice so that evidence can ultimately be brought to the Court to illuminate the issue of the husband’s allegation of inappropriate and unnecessary medical treatment for the children.

34. I accept that the B Medical Practice is the most appropriate practice as the children have been attending that practice since their return from Singapore. The husband prefers another practice but there is no evidence that the children have been treated there.

35. The husband’s dissatisfaction with the B Medical Practice arises from two matters. The first is the fact that his call was not returned the day before the hearing by the general practitioner who treated the children and the second arises from the fact that he was not provided with a copy of a medical report from Professor A, to whom one of the children had been referred by the general practitioner for assessment. In that respect I note that neither was the wife provided with a copy of the report. The husband’s objections are not sufficient to outweigh the fact that the B Medical Practice has treated the children and is familiar with their medical histories.

36. Although the wife, in her application, did not seek any orders relating to parenting other than that the Senior Registrar’s orders prevail, submissions were made by Counsel for the wife in relation to an order restraining the husband from bringing the children into contact with his mother.

37. There is insufficient evidence, at this time, to ground such an application but in the circumstances of the unfortunate interactions between the wife and the husband’s mother, it is not appropriate that the husband’s mother be present when the wife is present with the children.

38. The husband, for his part, complains of inappropriate intervention by the wife’s father and accordingly I propose to make orders that the husband and the wife ensure that no other family members are present at the times when the children are handed over or when the parents attend functions at the children’s school or pre school.

I certify that the preceding thirty-three (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 13 August 2014.

Associate: 

Date:  01/09/2014