Valdez and Frazier

[2016] FamCA 153

FAMILY COURT OF AUSTRALIA

VALDEZ & FRAZIER [2016] FamCA 153

FAMILY LAW – CONTRAVENTION – Whether orders required a parent to notify the other in relation to General Practitioner appointments for the child – Where orders made make provisions in relation to notification of appointments with health care professionals other than the child’s General Practitioner – Where the contravention could not be established – Application dismissed.

Family Law Act 1975

APPLICANT: Mr Valdez

RESPONDENT: Ms Frazier

FILE NUMBER: SYC 2226 of 2013

DATE DELIVERED: 1 March 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 1 March 2016

REPRESENTATION

THE APPLICANT: Mr M. Valdez in person

COUNSEL FOR THE RESPONDENT: Mr Longworth

SOLICITOR FOR THE RESPONDENT: SWAAB Attorneys

Orders

1. The Amended Contravention Application filed by the father 24 February 2016 is dismissed.

2. I dismiss the application of the father for variation of the parenting orders pursuant to s 70NBA of the Family Law Act.

3. I note that the father has been given a copy of the documents which make up Exhibits marked A, B, and C.

4. I direct that the father file and serve any reply to the mother’s Response to an Application in a Case filed 10 November 2015 and that such reply be filed and served by 22 March 2016. In support of that Reply, the father is to file and serve any evidence he seeks to rely upon. I note that the father will be addressing the mother’s application under s 102QB of the Family Law Act and that he has informed the court that he may well seek an order under that section directed toward the mother.

5. I list the application/s under s 102QB at 10.00 a.m. on 12 May 2016.

6. I reserve each party’s costs in respect of the father’s Contravention Application heard today and the recusal application heard 8 February 2016 for determination when the matter is before me on 12 May 2016.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Valdez & Frazier 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 2226 of 2013

MR VALDEZ

Applicant

And

MS FRAZIER

Respondent

REASONS FOR JUDGMENT

1. Before the Curt is a Contravention Application, filed by the father originally on 12 October 2015, and then amended by filing an Amended Contravention Application on 24 February 2016.  No objection is taken to the father being able to amend his contravention application and to proceed on his 24 February 2016 document. 

2. The father relies on the following evidence to support his Contravention Application: 

   a)An affidavit filed on 12 October 2015( in the particular parts that he drew the Court’s attention to); 

   b)An affidavit filed on 22 February 2016, (the particular part of that is annexure A);  and

   c)An affidavit filed 27 January 2016, to which no part was drawn to the Court’s attention as being relied on to support particular grounds. 

3. The father only took the Court to evidence contained in his affidavit filed 22 February 2016 and his affidavit of 12 October 2015 when asked to identify the evidence which proved the particular alleged contraventions upon which he moved. 

4. After taking the father to each of the counts numbered 6 through to 11 in his contravention application, the father elected to move only upon counts 6, 9, 10 and 11.  With my leave, the father sought to press only the second “statement of alleged contravention” in respect of counts 6 and 9.  He did not press counts 7 and 8, as he said he was unable to prove those.  He elected to nominate 10 June 2015 as the date of the alleged contravention for count number 10, and he nominated 11 July 2015 as the alleged date of contravention count number 11.  No objection to my permitting the father to proceed in that manner was made by the mother.

5. The mother opposed all counts of the contravention application.  The mother’s case is that all of the counts should be dismissed on the ground that they could not make out any contravention.  In this respect, the mother said she was seeking a summary dismissal.  The mother made all other necessary admissions to allow the father to press ahead with the hearing of his contravention applications.  These admissions included knowledge of the relevant orders and personal service of the contravention application and supporting evidence. 

Count 6 and 9

1. Both of these counts allege a contravention of order 2(d)(iii) of the orders made 24 July 2014.  That sub-order forms part of four orders numbered 2(d)(i), (ii), (iv), inclusive, as follows:

   (2)d.    In relation to matters to do with the child’s health:

   i.The parents are each to ensure that [the child] continues to attend the general practitioner whom he presently consults, unless they agree to an alternate general practitioner;

   ii.Each of the parties is to advise the other by email of any consultations by [the child] with his general practitioner and of any prescriptions provided for [the child], or of any treatment recommended for him by that general practitioner and is also to advise the other by email of any referral for [the child] to attend any specialist medical practitioner or health professional;

   iii.The parties are each to advise the other in advance of any appointment made for [the child] to consult with any specialist medical practitioner or health professional and both parties may attend such appointments; and

   iv.Each of the parties is restrained from taking [the child] to any medical practitioner, other than his general practitioner, or to any health professional, therapist or counsellor without the consent of the other parent;

2. It can be seen that suborders (i) to (iv) of 2(d) prescribe matters relating to “in relation to matters to do with [the child’s] health”.  It can be seen that order 2(d)(iii) requires advice of appointments made for the child to be given in advance, so both parties may attend such appointments.  The order refers to appointments made for “[The child] to consult with any specialist medical practitioner or health professional”.  These words are also used in order 2(d)(ii). 

3. Order 2(d)(i) operates to ensure the child remains with the one general practitioner.  Order 2(d)(ii) addresses what is to happen when either party takes the child to the general practitioner.  It is in a form which does not require either party to provide pre-warning to the other of appointments made with the general practitioner for the child.  It does require notice to be given after any general practitioner consultation.

4. Order 2(d)(iv) restrains each party taking the child to any medical practitioner other than his general practitioner, or any health professional, therapist or counsellor, without the consent of the other.  It is, therefore, implicit that each party does not require the consent of the other to take the child to see his general practitioner, nor is either required to inform the other about any appointment made to see the general practitioner (assuming that an appointment can be made) before that appointment takes place. 

5. With those matters in mind, the mother says the father’s contravention cannot succeed in relation to counts relating to order 2(d)(iii), because the evidence relied upon by the father to show the dates the child attended the general practitioner could not have any direct bearing on order 2(d)(iii).  The mother says the orders 2(d)(i) to (iv) clearly differentiate between the child’s attendance upon his general practitioner and his attendance upon any “specialist, medical practitioner or health professional” or any “therapist or counsellor”. 

6. The father disagrees with the mother’s submission, and he says the order 2(d)(iii) is also applicable to circumstances where the child is to see the general practitioner.

7. I do not accept the father’s interpretation of the orders 2(d)(i) to (iv).  In my view, there is a clear requirement to take action to inform the other parent when an appointment is made for the child to see a “medical practitioner” or “therapist” or “counsellor” or other “health professional” who is not the child’s treating general practitioner.  As the evidence relied upon by the father to prove the count of contravention only relates to the child attending upon his general practitioner (see annexure A to the husband’s affidavit of 22 February 2016), he cannot prove the contravention of order 2(d)(iii), and consequently counts 6 and 9 must fail. 

Counts 10 and 11

1. These counts allege contravention of order 2(d)(ii).  Count 10 claims that on 10 June 2015 the mother did not advise the father that further tests had been ordered as part of the child’s care.  For the purpose of this count, it seems reasonable to assume the father is alleging on or about 10 June 2015 there were tests ordered by the child’s general practitioner. 

2. To support this count, the father relies upon annexure A to his affidavit of 22 February 2016.  That identifies that on 10 June 2015 the child was seen for a consultation with his general practitioner.  There is nothing, in that document, to suggest what the outcome of that consultation was.  The father relies on page 103 of his affidavit, filed 12 October 2015.  There is an email to the father from an “early childhood teacher” advising the child was absent on 9, 10 and 12 June 2015. 

3. The father relies on page 108 of that same affidavit.  That document is a copy of an email sent by the father to the mother.  It is dated 11 July 2015.  This email, inter alia, speaks of the father being told by the child’s general practitioner that test results had been received (allegedly by the mother).  The inference is that the mother had not informed the father of the receipt of test results.  There is nothing to connect the mother receiving test results for the child or having knowledge of tests being conducted on 10 June 2015, or at all.  In addition to the above, order 2(d)(ii) does not refer to “tests”, and therefore the alleged contravention is outside of the requirement imposed by the order.

4. Flowing from those findings these counts must fail. 

Count 11

1. This alleges contravention of order 2(d)(ii) of 24 July 2014.  This count also alleges failure of the mother to report to the father that test results had returned to the child’s general practitioner. 

2. This count must fail for the same reasons set out in relation to count 10.  Additionally, there is no evidence to establish that the mother knew if any tests had been ordered or if the results had returned to the general practitioner.  The father relied upon pages102, 103 and 108 of his affidavit of 12 October 2015 to establish this contravention.  None of those pages provided evidence which would support a finding of contravention as alleged by the father. 

3. As a consequence of all set out herein, the father’s contravention application must fail and be dismissed. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 1 March 2016.

Associate:

Date:  1 March 2016