VENTRIS & GOLD
[2014] FamCA 1121
•12 December 2014
FAMILY COURT OF AUSTRALIA
| VENTRIS & GOLD | [2014] FamCA 1121 |
| FAMILY LAW – CHILDREN – Interim application – Where high levels of conflict between parents – Where poor communication between parents – Where child has serious medical needs – Whether the father can spend extended overnight time with the child – Consideration of “meaningful relationship” – Whether child at risk in father’s care – Best interests of the child. | |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA | |
| Cowling v Cowling (1998) FLC 92-801 Deiter & Deiter [2011] FamCAFC 82 Goode and Goode (2006) FLC 93-286 Marvel & Marvel (No. 2) [2010] FamCAFC 101; (2010) 43 Fam LR 348 Mazorski & Albright [2007] FamCA 520 McCall & Clark (2009) FLC 93-405 MRR v GRR (2010) 240 CLR 461 SS & AH [2010] FamCAFC 13 |
| APPLICANT: | Mr Ventris |
| RESPONDENT: | Ms Gold |
| FILE NUMBER: | PAC | 2465 | of | 2014 |
| DATE DELIVERED: | 12 December 2014 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 26 November 2014 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Slater & Gordon Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Kennedy |
| SOLICITOR FOR THE RESPONDENT: | The Norton Law Group |
Orders Pending Further Order:
That all previous parenting orders in relation to the child W born … 2008 be discharged.
That the mother and father have equal shared parental responsibility for the child.
That the child live with the mother.
That the child spend time with and communicate with the father as follows:
(a) At such times and on such occasions as are agreed between the mother and father in writing, with such writing to include SMS or email communication and in default of agreement:
(b) In the event that the child is not otherwise spending time with the father as provided for herein, from 2:30 pm 25 December 2014 to 7:30 pm 26 December 2014, provided that the father’s time with the child shall be suspended on Wednesday 24 December 2014;
(c) From the conclusion of school or if not a school day from 3:00 pm until 7:30 pm Wednesday in each week, provided always that during school holiday periods such Wednesday time shall be from 9:00 am until 7:30 pm;
(d) Each alternate weekend commencing on the first weekend after the date of these orders from the conclusion of school or if not a school day from 3:00 pm Friday until 6:00 pm Sunday provided always that during school holiday periods such weekend time shall be from 3:00 pm Friday until 6:00 pm Tuesday;
(e) Telephone contact each Monday and Friday when the child is not otherwise with the father with such telephone contact to be initiated in the period from 6:30 pm until 7:00 pm and the mother shall do all things necessary to facilitate the child telephoning the father during that period on such phone number as is nominated to the mother by the father in writing within 48 hours of these orders such writing to include SMS or email communication and whilst the child is speaking to the father the mother shall provide to the child reasonable privacy.
That the mother be restrained from making appointments for the child to see medical practitioners or other health professionals at times that the child is otherwise to be spending time with the father, save in circumstances of emergency or where the father has provided his consent in writing, with such writing to include SMS or email communication.
That the mother shall ensure that the father is informed in a timely fashion of all appointments made for the child with medical practitioners or other health professionals such that should the father elect to attend he may do so and the mother shall authorise and direct such medical practitioners or health professionals to provide to the father such information as he may require in relation to the child’s attendances, treatment and prognosis and for this purpose this order shall be the father’s sufficient authority.
That the father shall ensure that the child receives all prescribed medication or other necessary medication or treatment with such medication or treatment to be administered as prescribed as the father is directed by the child’s medical practitioners or health professionals.
That the mother and father exchange by email information and matters relating to the child’s medication in that:
(a) The mother shall advise the father of any and all prescribed medications relating to the child and any non-prescribed medication or substances relating to the child’s health recommended by the child’s medical practitioners or other health professionals; and
(b) The father shall advise the mother in writing including by SMS or email communication at the conclusion of the time the child spends with the father of any and all medication administered by the father to the child whilst the child is in his care.
That the mother and father shall maintain a communication book that shall pass between them with the child and they may record in that communication book such matters as are required to be communicated between them by these orders or other matters they each deem relevant to the welfare of the child.
That the mother and father each be restrained from smoking tobacco in the presence of the child or permitting anyone living with or visiting their respective homes from smoking tobacco in the child’s presence.
That the father and mother be restrained from consuming alcohol or any illicit drug for a period of 12 hours before and during any time the child spends with either of them.
That the father and mother be restrained except in circumstances of emergency, of taking the child to any medical practitioner or other health practitioner or other than those presently engaged in relation to the child or those reasonably recommended by a medical practitioner or health practitioner presently engaged with the child.
That the mother and father keep the other informed of any adverse changes to the child’s health whilst the child is in their respective care and as soon as practicable notify the other of any medical emergency arising in relation to the child.
That the mother and father do all things necessary within 14 days from this date to enrol in and thereafter promptly participate in the Unifam Keeping in Contact program and to obey all reasonable directions through that program as to their ongoing participation in the program or engagement with other health professionals or therapists.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ventris & Gold 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 PARRAMATTA |
FILE NUMBER: PAC 2465 of 2014
| Mr Ventris |
Applicant
And
| Ms Gold |
Respondent
REASONS FOR JUDGMENT
The proceedings
The matter for determination by the court is the interim parenting arrangements for the child W, born in 2008.
On 28 May 2014 the father commenced proceedings in the Federal Circuit Court of Australia by way of application seeking both interim and final parenting orders in relation to the child.
The mother in her amended response filed on 1 August 2014 sought final orders as to parenting and property settlement.
On 7 July 2014 interim parenting orders were made by consent by his Honour Judge Harman in the Federal Circuit Court of Australia and proceedings were transferred to this Court.
The interim parenting orders made by consent in summary provided as follows:
a)That the child live with the mother;
b)That the child spend time with the father each alternate Wednesday commencing 9 July 2014 from 3:30 pm to 7:00 pm, each alternate Tuesday commencing 15 July 2014 from 3:30 pm to 7:00 pm and each alternate Saturday commencing 12 July 2014 from 11:30 am to 2:30 pm;
c)Arrangements for changeovers;
d)That the father ensure that the child attends his physiotherapy, tutoring and psychologist appointments on Tuesdays and Wednesdays when the child was to spend time with the father;
e)That the mother facilitate the child having telephone contact with the father each Monday, Wednesday and Friday between 6:30 pm and 7:00 pm;
f)That the father ensure the child receives all prescribed medication including “Singulair” tablet 6:00 pm each day, Eszema ointment as required and that the father only use “Dove Sensitive” soap on the child’s skin;
g)That otherwise the mother and father exchange by email, information relating to the child’s medication including that the mother advise the father of all prescribed and non-prescribed medication for the child and the father advise the mother before the conclusion of the time the child spends with the father of any and all medications administered to the child when the child was in the father’s care.
Subsequent to being transferred to this Court proceedings were listed before a Registrar on 26 August 2014. Directions were made for the parties to participate in the Child Responsive Program with intake interviews scheduled for 6 November 2014 at 9:00 am.
The matter was again before a Registrar on 11 September 2014 in relation to interim orders sought by the father and adjourned to the judicial duty list on 15 September 2014. On 15 September 2014 orders were made listing the matter for interim hearing on 26 November 2014, requiring the parties to file any updating affidavit material and discharging the previous order requiring the father to spend his Saturday time with the child within the Westfield shopping complex at Suburb H.
The matter proceeded to interim hearing on the documents on 26 November 2014 and judgment was reserved. The parties agreed as to the further orders pending delivery of judgment, in summary those orders provide:
a)That the child spend time with the father each Sunday from 2:30 pm to 7:00 pm and commencing on Sunday 30 November 2014 other than Sunday 7 December 2014 and in lieu of that day the child shall spend time with the father between 2:30 pm and 7:00 pm on Saturday 6 December 2014;
b)That the child spend time with the father each Wednesday from after-school until 7:00 pm commencing Wednesday 3 December 2014; and
c)That each party use their best endeavours to immediately inform the other of changes to the child’s health whilst the child is in their respective care and notify the other of any medical emergency affecting the child with such communication to be in the first instance if available by telephone and otherwise by SMS or email communication.
The father seeks interim parenting orders that in summary provide as follows:
a)That the father and mother have equal shared parental responsibility for the child;
b)That the child live with the mother;
c)That the child spend time with the father:
i)From the conclusion of school until 7:30 pm Monday and Thursday in each week;
ii)From the conclusion of school Friday until 5:00 pm Sunday each alternate weekend;
iii)For half of all school holiday periods;
iv)On special occasions including birthdays, Father’s Day, Christmas and the Easter period.
The mother seeks interim orders that in summary provide that the child spend time with the father as follows:
a)Each Sunday from 2:30 pm until 7:00 pm;
b)Each Wednesday from after-school until 7:00 pm;
c)On 25 December 2014 from 2:30 pm to 7:00 pm;
d)On 26 December 2014 from 2:30 pm until 7:00 pm;
e)On 1 January 2015 from 2:30 pm until 7:00 pm;
f)That changeovers be varied in that when changeovers are not occurring at school they occur at the McDonald’s Family Restaurant at Suburb H.
The applicant father is aged 29 and the respondent mother aged nearly 28.
The father is presently employed as a skilled tradesman and resides at Suburb HH. He is in a new relationship and his present partner has two children aged 11 and 3 who form part of the household and there is a young child of their relationship born in 2014.
The mother resides also in Suburb HH and is not in employment. She has a child of her later relationship, A, who is now two years of age.
The parties commenced cohabitation in 2007. The child was born in 2008.
The parties separated in about June 2009 under one roof and in October 2009 the mother relocated to Queensland.
The Father’s Evidence
About four years after separation the mother commenced another relationship that failed shortly thereafter. The father alleges that the relationship was characterised by abuse of the mother by her then partner resulting in the mother’s partner being convicted of assault and he is still serving a period of custodial imprisonment.
In late 2013 the child A was born to the mother and her then new partner.
The child W was diagnosed with four holes in his heart prior to his birth. Following his birth he was in neonatal intensive care for a period and thereafter readmitted to the X Hospital to have open heart surgery.
Following the child’s discharge from hospital the father returned to his full-time employment and the mother remained as a primary carer for the child.
At the time of the parties’ separation in 2009 the mother resolved to move to Queensland. Prior to her relocating she travelled to Queensland leaving the child in the father’s sole care for a period.
The father asserts that the mother agreed that whilst she was in Queensland they would share the care of the child on a fortnightly about basis.
The mother remained in Queensland for a period of about 12 months and returned to Sydney in 2010. The property jointly owned by the parties at Suburb HH had been tenanted whilst the mother was in Queensland and upon her return she moved back into that property.
The father also moved into the property with the mother and father living separately and apart under the one roof. Not surprisingly this arrangement did not last and the father subsequently moved to rental accommodation in the HH area so that he could be close to the child and be readily available to spend time with the child.
Subsequent to the father obtaining independent rented accommodation he says that he was spending time on a daily basis with the child, collecting the child after school and spending a few hours with the child, with the mother then collecting the child from his residence. The father also says he had the child in his care each alternate weekend from the conclusion of preschool on Friday until 5:00 pm on Sunday afternoons. The father asserts that arrangements for the child’s care were flexible and there were periods when the child would be in the father’s care for longer periods.
From March 2013 until 22 May 2014 the child was spending time with the father each Monday and Thursday from the conclusion of school until 7.15 p.m. and each alternate weekend from the conclusion of school on Friday until 5 p.m. Sunday.
On 22 May 2014 the mother informed the father that he would not be seeing the child again and that he should contact her solicitor. The father did so but to no avail. On 28 May 2014 he filed his present application.
The father complains that in the past 12 months the father has experienced difficulties with the mother in that she changes arrangements for his time with the child to suit her own convenience or unilaterally cancels the child’s time with the father. He further complains that she is inflexible and controlling over his time with the child.
The father expresses concern that it is difficult for him to sustain his relationship with the child while his time is inconsistent. The father’s evidence is indicative of the mother having some dislike for the father’s current partner, Ms S, alleging that she is referred to by the mother in a most uncomplimentary way.
The father further complains that there have been difficulties with telephone communication with the child, with the mother’s phone either being switched off or ringing out.
The father complains that the mother does not always communicate information in relation to the child’s medical appointments and he is thus not afforded the opportunity of attending some appointments and speaking to the child’s healthcare providers. On occasions the father has attended school to collect the child as arranged or pursuant to orders only to find that the child was not at school that day and he had received no notification from the mother.
The father complains that the mother on occasions does not secure the child properly in a car seat and on one occasion attended to collect the child without a properly fitted car seat in her car.
The father expresses the opinion that he has a close and affectionate relationship with his child but has observed that the child is reluctant to demonstrate affection to him when in the mother’s presence. In all probability this is as a consequence of the conflictual relationship between the parties.
The child has been diagnosed with certain medical conditions. The child consults a physiotherapist in relation to one of those conditions. Further the child has some anatomical anomalies.
The parties consulted Dr N from X Hospital in relation to their concerns about the child’s growth. Notwithstanding his requests, the father complains the mother has not informed him as to the results of those tests.
The father says that he was a regular attender at the child’s medical appointments until February 2014. Since that time he asserts that he has not been able to attend appointments and the mother does not permit him to do so nor does he receive information regarding test results or upcoming appointments from the mother.
The father presently resides with his partner Ms S aged 28 and her two children aged 11 and three. There is one child, a son, of the father’s relationship with Ms S who was born in 2014.
The father resides in a comfortable four bedroom home in Suburb HH providing adequate facilities.
The father remains in full-time employment as a skilled tradesman having worked with his present employer since January 2014. His annual income is about $80,000 plus superannuation. The father’s partner does not work devoting time to the care of the children in their household.
The father pays to the mother $462 per month by way of child support payments.
The Mother’s Evidence
The mother asserts that she has significant concerns in relation to the father’s general health primarily related to a significant number of years of alcohol abuse and continued use of illicit drugs. This contention seems peculiarly at odds with the periods that she has facilitated the child remaining in the father’s care since separation.
The mother offers extraordinarily detailed evidence in relation to the medical and health history of the child who is now six years of age.
As to the child’s heart condition, the mother says the child is doing reasonably well and only needs to meet his cardiologist once every three years with the next appointment in 2017. The mother acknowledges that in relation to one medical condition the reconstructive surgery went reasonably well with the child requiring ongoing physiotherapy. To some extent this limits his day to day activities in relation to the use of his right hand.
Otherwise the child’s progress in so far as a second medical condition is concerned is described by the mother as reasonably well.
The child is able to involve himself in the usual range of activities for a child of his age without complaint.
The mother asserts that there is some concern expressed that in the context of the child using growth hormones there is likelihood he will suffer pain in the right hip and the child should be monitored for this. The child commenced growth hormone therapy in mid July 2014 under the care of Dr N at X Private medical centre. The treatment program is expensive and the mother has been able to obtain government funding in relation to the cost. The treatment program involves the child having one injection each day of the week except Sundays until he is about 17 years of age. In the early stages of the treatment the child requires regular blood tests to monitor the growth hormone levels until they stabilise. It is expected that in the initial six-month period of the program the child will experience a significant growth spurt from the height of an average three-year-old to the height of an average six-year-old. As a consequence of the growth spurt the child will need support and encouragement to work through any unwellness and pain that may arise as a consequence.
The mother further asserts that the child continues to suffer from asthma and croup. In the winter months this is almost on a daily basis but at other times this can be as little as only two or three times a week. The child has a regular medication regime, taking a “Singurial” tablet on a daily basis supplemented Ventolin and a steroid based medication together with “Predmix” for the croup.
To deal with the child’s undeveloped gross and fine motor skills the child engages with a physiotherapist and an occupational therapist on a fortnightly basis. As a consequence of some delayed cognitive development the child also sees a private tutor three times per fortnight.
The mother expresses concern that the child receives a consistent and uniform approach to parenting and more importantly in relation to his various medical treatments.
After she relocated to Queensland the mother recognised the importance of the child’s relationship to the father and would return to Sydney every few weeks leaving the child with the father for periods ranging from several days to a week or so.
The mother acknowledges that on her return to Sydney in February 2010 informal parenting arrangements were in place with the child spending every second weekend with the father. She says that the mid-week time was somewhat inconsistent with her unable on occasions to meet the father’s request for mid-week visits because they often clashed with other arrangements she had made for the child or her other personal commitments.
The mother expresses concern in relation to the father being dismissive of the child’s ongoing health issues. In particular she complains of the father permitting the child to ride on a quad bike unsupervised and falling off in an incident on 20 April 2014. The mother further complains that the father had stopped taking the child to his swimming lessons that were arranged so as to assist with strengthening his hip.
Throughout 2010 until 2013 the father would collect the child from school on Friday afternoon and return the child on Sunday evenings at about 5:00 pm each alternate weekend. The mother complains that on many occasions the child would be returned early to her or members of her family on a Saturday rather than Sunday. The mother says that from about April 2013 until the end of the year the child remained with the father for the full weekend without exception
Significantly, the mother alleges that on 28 January 2013 she observed a white powder stored in the freezer in the father’s kitchen. She asserts that the white powder was either ecstasy or speed. She said to the father “why would you have drugs in the fridge when there are children around. How could you be so stupid to take drugs when the kids are here” she asserts that the father replied “you need to chill out, it’s Australia Day”. She says that this was not the only occasion she has seen the father with illicit drugs. She says that he was a user throughout the entire course of their relationship which resulted in arguments between themselves. She further complains of the father’s excessive consumption of alcohol.
However notwithstanding the mother’s concerns she continued to make the child regularly available for time with the father, including overnight weekend time.
In July 2013 as a consequence of concerns in relation to the child’s physical presentation on return from the father, the mother took the child to see a paediatrician who recommended the mother may wish to consider the child seeing a child psychologist. The mother says that the father refused permission for her to do so.
However in early 2014 the child was exhibiting behavioural issues and the mother obtained a referral to a psychologist whom the child has been seeing since April 2014. The mother also asserts that the child is seeing his school counsellor in relation to his general behaviour and violence towards children.
The mother complains that notwithstanding consistent arrangements for the father’s time with the child through the early part of 2014, the child’s behaviour was becoming increasingly worse in terms of mood swings and temper together with displays of violence. She says that this occurred significantly after the child was returned after time with the father.
The mother also complained that there is smoking in the father’s household. She complains that in April 2013 the child suffered what appears to be an asthma attack at the father’s home but he had no medication available. The mother attended at the father’s home to find the child in a significantly distressed state. She further complains as to the father’s failure to ensure that he had ointment to treat the child’s eczema readily available.
The child has been attending upon a psychologist Mr M since 1 May 2014. It appears from the psychologist’s file (Exh F) that the mother and father have kept the child psychologist informed of the progress of the litigation between themselves in relation to parenting.
Significantly on 6 May 2014 the child told the psychologist:
Mummy told me daddy is trying to take my home from me and my sister.
The knowledge of the child aged six of this circumstance reflects the mother enmeshing the child in the ongoing conflict between herself and the father.
On 18 May 2014 the mother informed the father that she would no longer make the child available to stay with the father. The child psychologist’s notes on 10 June 2014 reveal the following comment:
[The child] no longer having visitation with his father following issues concerns re-medication compliance, hygiene (not being showered), riding motor bike unsupervised.
Subsequently the child’s time with the father resumed after interim consent orders on 7 July 2014.
Thereafter the mother makes complaint in relation to an incident that occurred at changeover at McDonalds on 3 September 2014. The mother and father were in disagreement in relation to arrangements for the father’s time with the child on Father’s Day. The child described the incident to his psychologist in the following terms:
Mum was taking me out of the car, got my jumper and my stuff and gave me a kiss and a cuddle and dad started getting angry at mum. Dad said “he would take me away from mum and not give me back”. (They) argued about Father’s Day – mum told dad that she’d take me but dad didn’t listen. Mum didn’t yell. Mum chucked me in the car – I was scared, mum locked doors – seated (?) In car for ages. Mum rang some people, rang police. Scared that dad wouldn’t give me back to mum. Dad swore at mum. Dad grabbed me by the arm. Tried to pull me out from mum’s car – I held onto mum’s car.
The child was admitted to X Hospital on 9 October 2014 due to uncontrollable vomiting. The father was advised by the mother and the father attended at the hospital. The child was discharged on steroid tablets to be taken three times per day and provided with hydrocortisone injections for use when the child was under stress or otherwise unable to absorb the tablets.
In a document entitled “Instructions for patients requiring corticosteroids during illness, surgery, anaesthesia or major injury” dated 10 October 2014 forming part of Exhibit H, the child’s paediatric endocrinologist advises:
Your child has a form of ACTH (adrenal) insufficiency. They may be taking a small dose of hydrocortisone or may not require regular hydrocortisone therapy when they are well.
At times of significant illness or other stress to the body, they are at risk of an adrenal crisis. Unless extra corticosteroids are given at these times, your child could become very sick very quickly. This is a simple guide to what to do in such situations.
…
Trivial illness e.g. mild cold, no extra hydrocortisone is required.
If your child is mildly unwell or has a fever between 38 to 39°C: give hydrocortisone 12 mg (1/2 x 20 mg and ½ x 4 mg tablet) every 8 hours. This is equivalent to 52 mg/m2/day.
If your child is more unwell or has high fevers (above 39°C), vomiting or diarrhoea – give hydrocortisone 16 mg (1/2 x 20 mg tablets and 1.5 x 4 mg tablets) every 8 hours. This is equivalent to 93 mg/m2/day.
If a dose of hydrocortisone has vomited, repeat the increased dose in half an hour.
If further vomiting occurs or if your child appears very unwell (pale, clammy, drowsy or unconscious) they will need a hydrocortisone injection. Either take your child immediately to your GP or nearest hospital or if you have hydrocortisone injection at home, administer the dose and then seek medical advice.
The dose for your child is 70 mg (1.4 mls).
On 10 October 2014 the discharge notes from the Hospital reveal that the daily hydrocortisone regime for the child was 2 mg mane (sic) (morning) 2 mg 1:00pm and 2 mg evening. There was no other specificity in relation to times for administration of this medication.
On 15 October 2014 the child spoke to his psychologist and reported the following:
– last visit with dad – after attending tutoring (maths games), went to dad’s house, had shower, had dinner, grandma ([maternal grandmother]) picked up [the child] – no further arguments between mum and dad.
The psychologist in his notes thereafter reported:
2 Day – after session, planning to play Lego (no chattering today) – very keen to play with dad – “when can I play with dad?” – “last time I didn’t get to play with dad”
The mother gives evidence of various conversations with health professionals including a nurse who she says informed her that the child’s daily medication should be administered at 8:00 am, 2:00 pm and 8:00 pm. More relevantly she provides a medico legal report dated 4 November 2014 from Dr N, paediatric endocrinologist, at the X Hospital. The report was obtained after the child’s more recent admission to hospital and referred to above.
Relevantly Dr N’s report says:
His growth hormone deficiency is treated with growth hormone injections in the form of Norditropin Nordiflex given 6 days/week, 0.5 mg daily, with every other Sunday not requiring an injection. These injections are given by the parents.
and
… Must have daily hydrocortisone in the dosage 2mg x3 times a day at set times. It is imperative that he receives these dosages on time and regularly throughout every week.
and
As [the child] cannot responded to stress, he requires stress dosages which amount to increased hydrocortisone according to a treatment schedule which the family have at home. If he cannot absorb is hydrocortisone stress doses due to for example to vomiting, then the family have an injectable form of hydrocortisone which needs to be given, again according to a written schedule. It is most important that [the child] receives these hydrocortisone dosages regularly and reliably. The outcome of inadequate or inappropriate lack of treatment is a life-threatening episode of collapse requiring urgent hospitalisation.
Of note is the wording of his response when it was put to Dr N when requesting a report that “the tablets must be given at six hour intervals namely 8 a.m., 2 p.m. and 8 p.m. and that the risk of not maintaining these times [the child] at serious risk including death” and that the father’s understanding that the administration of the child’s hydrocortisone tablets could be given within a range of one-hour from the times specified.
Exhibit E comprises the medico legal report obtained by the mother’s solicitors from Dr N. In that report Dr N refers firstly to the child’s daily requirement in relation to hydrocortisone tablets which is given at 8:00 am, 2:00 pm and 5:00 pm (sic). He says:
The dosages do not have to be given precisely on the hour with a few minutes variation either side, no problem. If he misses a dose, he would not be as well as he should be by the time of the next dosage, but his life is not at threat in this situation…
The doctor then goes on to describe the second treatment program when the child is under stress, etcetera as described above. He says:
The timing of the first of the dose schedules does not have to be as precise as the timing of the second schedule, but neither should be delayed for hours.
The Child and Parenting Issues Assessment
Exhibit B is the Child and Parents Issues Assessment prepared by Family Consultant Ms G and dated 20 November 2014.
The assessment report provides a more balanced insight into the relationship between the mother and father.
The consultant reports:
At the time of the assessment [the child] was not currently spending time with his father because his mother made a unilateral decision to cease the visits specified in the interim orders. The reason for this is apparently that, on a specific occasion, [the father] either did not administer [the child’s] prescribed medication, or an administered it at the wrong time. [The father] said that he administered it at 130 p.m. in accordance with the briefing he received at [the] Hospital (“between 1 p.m. and 2 p.m.”). [The mother] holds that the medication must be administered between 1 p.m. and 3 p.m. and optimally at 2 p.m.
And
[The mother] will not agree to [the child] spending time with the father unless [the father] adheres to the exact protocols she specifies in relation to consulting with [the child’s] doctors.
The Family Consultant identified the overriding issue being the child’s safety whilst in the father’s care, but noted that there appeared to be an enmeshment of the children’s issues and property issues which the mother described to the Family Consultant as “a big part of the conflict”. The mother is highly invested in remaining in her present property.
The Family Consultant notes that the child had more recently been diagnosed with adrenal insufficiency which may be life-threatening in certain circumstances and then requires immediate and appropriate treatment.
On interview with the Family Consultant the child presented as a lively, engaging and sociable child. The child indicated a positive attachment to his father whilst indicating that his strongest attachments were to his mother and his sister.
The Family Consultant identified the risk factors in the following terms:
a)There are life-threatening risks to the child if his medical conditions are not properly managed and he is not properly medicated in a timely manner;
b)There are risks to the child being exposed to parental conflict, including covert hostility between his parents;
c)There are risks to the child if his relationship with his father is disrupted;
d)The child needs to spend at home, down time with his father (not only appointment and shopping time) in order to maintain a normal parent child relationship as long as the court determines that it is safe for the child to do so.
The co-parenting relationship was identified by the Family Consultant as hostile and uncooperative, with the mother impressing as very angry towards the father. The mother is articulate and speaks rapidly, commented the Family Consultant, with the father being observed to unable to cope with the mother and “shut down” when the mother challenged him about medical issues. The mother was observed to adopt a confrontational style and the father reacted with a passive aggressive style.
The mother insists on the father’s consultations with the child’s doctors being dealt with entirely on her terms. Whilst this was to some extent understandable, comments the Family Consultant, however by disempowering the father she is not inviting cooperation, but rather distancing.
The Family Consultant observed that the child is picking up on the conflict between the parents, a circumstance that was evident on the day of the assessment.
In evaluation, the Family Consultant observed that the mother has become hyper vigilant that medical instructions be strictly adhered to. The mother feels that she cannot trust that the father has the capacity to do so. The Family Consultant noted the anomaly in that the father who has attended many doctors’ appointments and training in relation to the child’s issues has been stopped from spending three hours sessions with the child when the child’s teachers who have had no such engagement have care of the child at school throughout each school day.
The relationship between the parents was assessed as currently being very poor, being exacerbated by property settlement issues and the mother’s fear that the house in which she and the child live will be sold.
The Family Consultant identified another factor contributing to the poor relationship between the parents being the father re-partnering and a young son being born of that relationship. The mother by contrast, left a violent relationship and is bringing up her daughter of that relationship as a single parent.
The father, observes the Family Consultant, impressed in interview as having the skills and capacity to administer any medical treatment that to the child that may be required.
In identifying future directions the Family Consultant reported:
a)The parents need coaching to assist them to co-parent. A court referral to Unifam’s Keeping Contact program as soon as possible is strongly indicated.
b)It may assist parental cooperation if the mother gives the father a list of all the treating doctors with their contact details and included how often the child is to see the doctors and the date of his last appointment and next appointment. This list could go in a communication book that accompanies the child when he is spending time with the father.
c)It will diminish the conflict if the father liaises with the doctors directly rather than through the mother. It is suggested that the parents’ appointments be requested from the doctors in writing and copies of all correspondence be sent to both parents.
The Best Interests of the Child
There is a strong inference that this present interim skirmish is a product of the mother’s understandable hyper vigilance in relation to the health of her son and the extraordinary poor relationship between the parents including the mother’s wish to have overwhelming control in relation to issues touching upon her son’s health.
The circumstances in relation to the mother’s unilateral suspension of the child’s time with the father arose from an issue as to the appropriate timing of the child’s daily hydrocortisone medication. The mother it appears insists upon a strict adherence to times that she perceives to be absolute.
However, the evidence referred to above is indicative of such rigidity not being necessary but that there be a substantial compliance with the timing obligations.
Perhaps the mother’s reaction was as a consequence of her concern for her child’s health but importantly more likely as a consequence of her hyper vigilance and wish to control all aspects relating to her son’s health. Her hyper vigilance and control issues can only be exacerbated by the ongoing conflict between the parents, a conflict that represents, as observed by the Family Consultant, an ongoing risk to the child’s well-being.
In Deiter & Deiter [2011] FamCAFC 82, the Full Court (Finn, Thackray & Strickland JJ) said:
61. The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made…
62. We are aware that in Goode and Goode (2006) FLC 93-286 the Full Court referred with some approval to the following statement made in Cowling v Cowling (1998) FLC 92-801 (our emphasis added):
18. The Family Law Act does not draw any distinction between the principles to be applied in determining residence in interim and final proceedings. The essential difference between them is one of procedure. Interlocutory proceedings do not determine the long term rights and obligations of the parties and their children. The issue for determination at an interim hearing involves a consideration of what orders should be made to properly regulate the position of the children pending the final determination of the matter. Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties. Accordingly, in determining what orders should be made, the Court traditionally looks to the less contentious matters, such as the agreed facts, the care arrangements prior to separation, the current circumstances of the parties and their children and the parties' respective proposals for the future. In some cases, it may also be necessary to consider child protection issues.
63. In our view, the proposition contained in the final sentence of the quotation is most important. In any event, in Goode and Goode, the Full Court said:
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
In Marvel & Marvel (No. 2) [2010] FamCAFC 101; (2010) 43 Fam LR 348 the Full Court (Faulks DCJ, Boland and Stevenson JJ), discussed the difficulties associated with making findings on contested evidence as follows:
120. As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
…
122. In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
123. Later, at paragraph 100 their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
The relevant principles in relation to parenting and interim proceedings are well settled: see Goode and Goode (2006) FLC 93-286.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act.
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.
The presumption does not apply where:
a) There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];
b) In interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)]; and
c) If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].
If the presumption in section 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of section 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.
The Full Court in Goode and Goode (supra) provided a “framework” as to how applications for parenting orders are to be determined. The High Court in MRR v GRR (2010) 240 CLR 461 affirmed the legislative pathway.
Best Interests of the Children
The court is required to have regard to the objects and principles underlying the parenting provisions of the Act. Included therein as one of the primary objects is “protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”. It is as to this issue will that the orders sought by the mother address.
The Additional Considerations: s 60CC(3)
The Court has had regard to each of the additional considerations set out in section 60CC(3) of the Act. The relevant considerations are as follows:
(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;
The child is six and a half years of age and little weight could be afforded to any expressed views in any event. Inferentially as to wishes the child identified the mother as his primary attachment but also demonstrated to the family consultant a positive attachment to his father.
(b) The nature of the relationship of the child with each of the child's parents and other persons (including any grandparent or other relative of the child);
As referred to above the child is primarily attached to the mother, his primary carer since the parties’ separation when the child was very young. The child also has a primary attachment to his younger half sibling sister in the mother’s household.
The child has a positive attachment to the father and by reason of his attendances within the father’s household is to be inferred a relationship with the father’s new partner, her children and their new son.
In considering the Family Consultant’s assessments it is thus important that the child remain in a settled environment pending determination of these proceedings on a final basis. That is indicative of the child remaining in the primary care of the mother but having a significant relationship with the father.
(c) The extent to which each of the child's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child;
The mother raises issues in relation to the father’s lack of engagement in the child’s health issues. There is a dispute in relation to this assertion by her and a determination of the issue if ultimately relevant will await a final hearing. Otherwise this consideration is of little utility in the context of the present proceedings.
(ca)……
(d) The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The mother seeks orders that would significantly restrict the child’s time with the father. She does so notwithstanding that the father has overall had significant and regular overnight and weekend time with the child and significant and regular mid-week time with the child.
The Family Consultant identifies one of the risks to the child being a disruption of his relationship with the father. In this context the Family Consultant suggests that the child needs to spend at home, down time with the father, not just time that facilitates attendance at medical or therapeutic appointments or shopping. More meaningful time would maintain a normal parent-child relationship between the child and the father.
(e) …
(f) The capacity of each of the child's parents; and any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
This consideration also has been touched upon in the discussion above. The conflictual relationship between the parents which is to such an extent that they communicate entirely by email reflects very poorly on their parenting capacity. The mother’s overarching hyper vigilance is to an extent that she now seeks to diminish the child’s relationship with the father to a level where the family consultant expresses concern as to the maintenance of a normal parent-child relationship between the child and the father.
The mother needs to be aware that is important for this child, particularly in the health circumstances that confront the child, to have as best can be facilitated, a normal and cooperative relationship between his parents. The capacity of both parents in this regard is problematic at best and a continuation of their conflictual relationship will bode ill for them having the capacity to properly address the needs of the child, particularly the child’s emotional needs.
A full consideration of this issue will await a final hearing
(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;
Comment has been made above in relation to the maturity of the child and the child’s health circumstances.
(h) …
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The conduct of the parties as it impacts upon this consideration has been referred to above. The parties in the maintenance of the ongoing conflict and inability to communicate which with each other have demonstrated clearly inappropriate attitudes to the welfare of the child and their responsibilities as parents.
It is a recommendation of the Family Consultant that the parties engage in a Unifam program to address this issue and such an order is proposed to be made.
(j) Any family violence involving the child or a member of the child's family;
The mother makes reference to allegations of domestic violence perpetrated by the father at or shortly after separation. The issue has no significance in the context of the present interim application and a determination of the mother’s historical allegations will await a final hearing.
There is no doubt on the mother’s own evidence that subsequent to the separation from the father in these proceedings she commenced a later relationship that appears to have been marked by significant violence resulting in her partner presently serving a custodial sentence. The relevance of conduct in that relationship as it impacts upon the subject child will be a matter for final hearing.
(k) Whether a family violence order applies;
There is no relevant family violence order.
(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;
These are interim proceedings and a determination as to final parenting orders will await subsequent agreement by the parties at a final hearing.
(m) Any other fact or circumstances that the court thinks is relevant.
There is no other relevant fact or circumstance.
The Primary Considerations: s 60CC(2)
The primary considerations are:
(a) The benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(2)(a) – “meaningful” relationship: In Mazorski & Albright [2007] FamCA 520; Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark (2009) FLC 93-405 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
Whilst the mother has historically been and will remain the child’s primary carer, her relationship with the child is marked by her hyper vigilance and enmeshment in the child’s medical issues. Whilst that aspect of her relationship with the child is understandable in the context of the child’s ongoing medical issues the mother needs to be cognisant of the need for the child to have a significant and meaningful relationship with his father.
At present her position is not amenable to that relationship continuing or developing on any meaningful level. The orders that she seeks minimise the child’s time with the father to the extent that the development of a normal parent-child relationship could be in jeopardy.
This aspect of her relationship with the child renders questionable her behaviour and conduct being in the child’s best interests. This is particularly so in the context of the conflictual and non-communicative relationship that has developed between the parents. Perhaps therapeutic intervention for the mother and the father as recommended by the Family Consultant will ameliorate this concern.
The father seeks to have his relationship with the child restored so as to facilitate the development of a father-child relationship on a normal basis without artificial strictures perceived to be protective of the child by the mother. He also needs assistance in dealing with the mother’s hyper vigilance and understandable protective concerns for the child and in ameliorating the nature of his relationship with the mother such as to benefit the child.
There is no doubt that both parents have exposed the child to their conflict. It needs to stop.
Section 60CC(2)(b) – need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
This issue is significant in the mind of the mother. As referred to above she has taken an extraordinarily rigid stance in relation to the one issue as to the administration of the child’s daily hydrocortisone medication. An incident which she perceived justified the termination of the child’s time with the father. A closer examination of the medical material that is referred to above demonstrates the mother’s hyper vigilance and overprotective controlling behaviour in relation to the child’s medical issues.
The mother needs to develop confidence in the child’s time with the father being extended to a more meaningful arrangement. The Family Consultant expresses no concern as to the father’s ability to manage the child’s medication regime. The father for his part readily concedes that he did not administer the child’s hydrocortisone tablet promptly at 2:00 pm but within a small window of time to one side of that requirement. That window of time being of no major issue when one considers the material provided by the child’s paediatric endocrinologist. The mother needs to understand this.
There is no doubt that in circumstances where the child is unwell or unable to keep down the hydrocortisone medication as contemplated by the information provided by Dr N both parties need to be on guard, act as provided for in the information and if necessary seek urgent medical help.
Clearly the father should be required to ensure that at all times he has appropriate medication including emergency hydrocortisone injection available when the child is with him.
The Presumption as to Parental Responsibility
The father on an interim basis seeks an order for equal shared parental responsibility. The mother’s minute of orders sought on an interim basis makes no reference to such issue.
For the reasons set out above the court is satisfied that there are no circumstances as contemplated in section 61DA of the Act that would rebut the application of the presumption nor are they circumstances that would satisfy the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.
Indeed in circumstances where the parties are both significantly involved in the complex medical circumstances that pertain to their child and the mother has demonstrated a hyper vigilance in that regard it is appropriate that they are required to share that parental responsibility.
However it is noted that notwithstanding any allocation of parental responsibility on an interim basis, at final trial such allocation must be disregarded (s61DB).
Section 65DAA
In light of there being an order for equal shared parental responsibility proposed, the Court is required to give consideration to whether the child spending equal time with each of the parents or spending substantial and significant time is in the best interests of the child and reasonably practicable, and if so, to consider making an order for equal time or substantial and significant time.
The ambit of the orders sought by each of the parties as to the child’s time with the father is set out above. Neither party seeks an order for equal time on an interim basis.
The father seeks interim orders that would provide for mid-week, weekend and school holiday time. Recent developments in relation to the child’s health are indicative of the child spending regular time with the father but until a determination at final hearing extended block periods could be problematic. A consideration of the child’s best interests as discussed above is indicative of a resumption of the time similar to that was previously enjoyed by the child with the father both mid-week and on alternate weekends, with the father’s weekend time extended during school holiday periods for an extra night.
Orders will be made as set out at the forefront of this judgment.
I certify that the preceding one hundred and twenty-six (126) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 12 December 2014
Legal Associate:
Date: 12 December 2014
Key Legal Topics
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Family Law
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Evidence
Legal Concepts
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Procedural Fairness
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