Webber and Budd

[2009] FamCA 1126

FAMILY COURT OF AUSTRALIA

WEBBER & BUDD [2009] FamCA 1126

FAMILY LAW – CHILDREN – Interim Application – Time to be spent with the father – where child has serious medical condition – where mother has serious concerns for the ability of the father to cope with the child during his medical treatment

Family Law Act 1975 (Cth) ss 60CA, 60CC(2), 60CC(3)

APPLICANT: Mr Webber

RESPONDENT: Ms Budd

FILE NUMBER: CAC 1614 of 2009

DATE DELIVERED: 4 November 2009

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 4 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Godtschalk

SOLICITOR FOR THE APPLICANT: Ms Lyndon, Watts McCray McGuinness Eley

SOLICITOR FOR THE RESPONDENT: Self represented litigant

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. a.     The young people, S, born … November 1999, and E, born … August 2002, will spend time with their father, with the pickup and collection points being the D Park between 10am and 4pm on Saturday 7 November 2009.

   b.      They will also spend time with their father on S’s birthday in November 2009 as follows:

   i.The father is free to and will, so far as he is able to do so, attend for S’s cricket match, commencing at 8:30am that day and at the conclusion of his cricket match will spend time with both children for a further half an hour to conclude not later than 12:30pm on that day to enable him to have an immediate celebration of S’s birthday.

   ii.During the time that S is playing cricket E will spend time with the father as well as the time at the conclusion of the game as herein before referred to.

2. Each of the parties will do such things as will facilitate the father’s communication with and obtaining of information from any relevant treating medical practitioner or any part of that medical practitioner’s support team about S’s condition, his treatment, his diagnosis and any requirements for his care or maintenance of his medical health and any prognosis. 

3. I direct that the father make contact with Dr N and such other medical practitioners or their support teams as may be appropriate to obtain immediate information about S’s condition and I require and request that the medical practitioners cooperate in providing this information.  I note that at the moment there is some dispute between the parents about the information that the medical practitioners have been provided about the father’s interest, concern with S and his condition and his past participation in both S’s treatment and in his medical consultations.  I make no determination about the validity of such claims at this point and I request that the medical practitioners proceed on the basis that the father is concerned about and wishes to be involved in S’s care into the future. 

4. Upon completion of the medical interventions associated with S in the coming week, that is the week commencing 9 November 2009 I require that the matter be brought back before me as soon as practicable to hear the medical evidence of the practitioners involved and to further hear evidence from each of the parties about the way in which the relationship between the father and the mother may appropriately be continued.

5. Each of the parents be and is hereby restrained from discussing with either of the children these Court proceedings or to make any adverse comment about the time that they spend with the other parent.  I further enjoin and restrain any other member of either person’s family or with whom that person is closely associated from discussing these proceedings with the children or from making adverse or unkind or unpleasant comments about the other parent either to the children or in the presence.  Such orders apply until further order. 

6. There by liberty to apply on short notice about any other matters that require my attention before the matter is next formally back before the Court.

7. I note that the respondent mother’s address for service is …, D, in the state of New South Wales and that she has agreed that she may be communicated with by facsimile if the need requires an urgent response.

8. On a continuing basis until further order, the children will have telephone communication with their father on Monday, Thursday and Saturday evenings between 6-7pm with the mother making the telephone call to the father’s home number, unless the parents otherwise arrange or agree.

9. I note that the Thursday telephone contact in the week commencing 7 November 2009 will not occur because of S’s medical treatment.

10. I reserve costs on both sides pending finalisation of this matter.

11. A copy of this order may be given to any medical practitioner or person associated with that medical practitioner in relation to S’s treatment. 

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1614 of 2009

MR WEBBER

Applicant

And

MS BUDD

Respondent

REASONS FOR JUDGMENT

Introduction

1. The proceedings before the Court relate to interim arrangements, given the somewhat unusual nature of the serious medical difficulties that have beset S, particularly in recent times.  Under the Family Law Act 1975 (Cth), my paramount consideration must be, as each of the parents has reminded me quite regularly during these proceedings, what is in the best interests[1] of S, (and, E, for that matter). I am not in any way suggesting that her best interests should not be regarded as an important consideration as well.

   [1] Family Law Act 1975 (Cth) s 60CA.

The best interests of the child

1. The Family Law Act 1975 (Cth) prescribes that in relation to any parenting order I should, in making that determination, take account of a number of factors. I do not propose to go through all of them because this is but one episode in a long saga involving both parents and the children. The primary considerations I am to take into account relate, principally, to the children's safety and physical protection,[2] and about questions of the importance of the benefit of a meaningful relationship between the children and their parents.[3]

   [2] Family Law Act 1975 (Cth) s 60CC(2)(a).

   [3] Family Law Act 1975 (Cth) s 60CC(2)(b).

2. In this regard, both parents have expressed in the past, and to some extent today as well, that they accept that it is important that the children have a relationship with the other parent.  So that is not, in fact, an impediment (on the stated positions of each of the parents.)  There is an understandable, but perhaps overworked concern on the part of the mother, as to the safety, particularly of S, if he is with his father.  This relates principally to the adequate and proper treatment of his medical conditions, and I will return to that in a moment, briefly.

3. The other matters I am properly to take into account are the practicability of the times and the arrangements for time to be spent with the children;[4]  and the importance of each of the parents preserving the children’s relationship with the other parent and their willingness to do so.[5]  I am also to take into account the ability of each of the parents to honour their obligations as parents in relation to the children[6] and any issues of family violence[7] (which I note are not directly involved in these proceedings at this time).  I must also consider the question, ultimately, of how the children's best interests are going to be met in the development and preservation of the relationship they have with each of their parents.[8]

   [4] Family Law Act 1975 (Cth) s 60CC(3)(e).

   [5] Family Law Act 1975 (Cth) s 60CC(3)(c).

   [6] Family Law Act 1975 (Cth) s 60CC(3)(f)(i).

   [7] Family Law Act 1975 (Cth) s 60CC(3)(j).

   [8] Family Law Act 1975 (Cth) s 60CC(3)(b)(i).

The relationship between the parents

1. It is impossible, in the context of this matter, for either parent to say more than three or four words without engaging in some criticism of the other parent.  I note that both are trying very hard to avoid that, but they are not succeeding at the moment.  This is very sad because, at the moment, what S needs beyond anything else is a united front from his parents so that he does not have to worry about arbitrating their dispute, at the same time as trying to overcome what is an illness that should not be inflicted on anyone, let alone someone of his tender age.

2. Needless to say, that is not something that is going to happen overnight. It is just not the case at the moment.  The parents are incapable of exercising that level of cooperation.  Each asserts it is the fault of the other.  I am unable, on the facts before me at this point, and the evidence of both parents, to determine who it is that is either contributing to or causing the division between the parents.  What I can say with absolute certainty is that there is such a division.

Discussion

1. In my opinion, the appropriate arrangements I should make on an interim arrangement will take account of the fact that the mother has a concern which may or may not be legitimate about the ability of the father properly to care for the children.  I take account further of the fact that S’s birthday is in the next few days. When I inquired of the father about the time that he felt was appropriate for the children to spend with him this weekend, he took as an opening point the fact the children should spend the entire weekend with him, notwithstanding it was S’s birthday on the Sunday. 

2. Now, the fact that he was not prepared in that volunteered statement to take account of the fact that it might be appropriate that S spend some time with his mother as well on his birthday, is a factor which I find distressing.  I find equally the fact that the mother seems to think that it is impossible for the father, who is, ostensibly, an intelligent and reasonable human being, to be able to understand what is necessary for S’s welfare, equally inexplicable and distressing.

3. The fact that E does not require the sort of treatment that S will at the moment, should mean that she is, to some extent, immune from the considerations that are disturbing the mother.  But that does not seem to be the case either. As a result, what I am trying to do in the context is to find something which will reduce the level of tension for S as he approaches what could be a very difficult time for him in his life, by ensuring that each of the legitimate concerns of the parents about the time they might spend with him, are accommodated.

4. I do not pretend that the solution that I have come up and have indicated to the parties in advance, is appropriate and the only solution.  It seems to me, however, it is the right solution, given the evidence I have before me and the attitudes as expressed by the parents at this point.  I am also concerned that for the longer term, there should not be a debate or even bickering, as there presently is, about what doctors have said, what the parties have been told by medical practitioners about what they are able to predict about what is appropriate for S’s medical care, physical care, and the ability that he has to develop and spend time with his father and his mother.

5. In this context, before I make any further decisions in the continuation of this matter, it seems appropriate to me that I should hear from the medical specialists.  I have asked the representatives of the father to cooperate with the mother ensuring that these doctors are available to give their evidence by telephone when the court resumes next, which will be, in part, dependent upon whether the medical interventions on behalf of S are resolved next week, or at some time in the immediate future.

6. I have also indicated that I will accommodate the convenience of the doctors, so far as I am able to do so, by taking their evidence by telephone, and doing so if required, out of ordinary business hours.  For these reasons, therefore, briefly expressed in the circumstances of this matter I make orders which are designed to deal with S’s birthday weekend only and to postpone a further consideration of the appropriate continuation of the time that the children spend with each of their parents until I have more appropriate medical evidence which, as I have said, I will accommodate on short notice and outside normal hours if necessary. 

Conclusion

1. Accordingly, I make the orders as set out in the Judgment.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Faulks

Legal Associate: 

Date:  13 November 2009