WEBBER & BUDD

[2011] FamCA 131

FAMILY COURT OF AUSTRALIA

WEBBER & BUDD [2011] FamCA 131

FAMILY LAW – CHILDREN – time to be spent with the father - where child has a serious medical condition – where mother has serious concerns for the ability of the father to manage the health issues associated with the eldest child – whether the father has the capacity to provide for the needs of the eldest child

Family Law Act 1975 (Cth): ss 60CA; 60CC, 65L

B and B (1993) FLC 92-357 at 79,780; Russell and Close (unreported 25.06.1993);  Sedgley and Sedgley (1995) FLC 92-623; Re Andrews (1996) FLC 92-692

APPLICANT: Mr Webber

RESPONDENT: Ms Budd

INDEPENDENT CHILDREN’S LAWYER: Jeanine Lloyd & Associates

FILE NUMBER: CAC 1614 of 2009

DATE DELIVERED: 15 February 2011

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Rose J

HEARING DATE: 14 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: A Carter

SOLICITOR FOR THE APPLICANT: Watts McCray McGuinness Eley

RESPONDENT IN PERSON: Ms Budd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: J Lloyd

Orders

1. That all current interim and final parenting orders in relation to the periods of time that the father may spend with the two children of the marriage S born … November 1999 and E born … August 2002 (“the children”) and his communication with them are set aside.

2. That the parties ensure that the father is able to spend time with the children as follows:

   (a)Each Saturday and Sunday between the hours of 12 noon and 3.00pm for two weeks commencing on Saturday, 26 February 2011.

   (b)Thereafter for a period of 12 weeks each alternate Saturday from 9.30 am until 4.30 pm commencing on the first Saturday after the periods of time referred to in Order 2(a) have taken place.

   (c)Thereafter each alternate weekend from 9.30 am Saturday until 4.30 pm Sunday PROVIDED THAT the parties have been jointly advised in writing by Dr N, paediatric endocrinologist or other treating paediatric endocrinologist for the eldest child that his health issues and the management of them by each of the parties are not likely to be adversely affected by the eldest child spending alternate weekends in the care of the father.

   (d)For such substituted, alternative or other periods as the parties may agree upon from time to time.

3. That the parties forthwith provide a written request to Dr N to furnish the written advice referred to in Order 2(c) as she may consider professionally appropriate and each of the parties shall forward to the other a copy of such written request as soon as it has been provided to Dr N.

4. That the father shall ensure that the children or either of them take part in such sport or extra-curricular activity organised for them by the mother upon him receiving notice from the mother of the detail thereof including the place where such sport or activity is to occur AND the father may attend that place to observe and communicate with the children PROVIDED THAT the period of time that they are to be in the father’s care pursuant to Orders 2(a), 2(b), 2(c) or 2(d) shall commence at the conclusion of such sport or activity.

5. That in the event of the children or either of them being unwell and as a consequence requiring the care of the mother then the mother shall so inform the father as soon as possible PROVIDED THAT the mother ensures that the child who is not ill is available to spend time with the father in accordance with these Orders.

6. That for the purpose of change-over care of the children as between the parties they shall be taken by the mother or her nominee other than the maternal grandmother to the park in B previously utilised by the parties or such other place as agreed for the purposes of being met by the father and returned by him to the mother or her nominee.

7. That in the event of the children or either of them suffering from an illness or injury such as to require medical treatment then the party who has the care of the child or children as the case may be shall promptly provide all relevant information to the other party including the name of any relevant hospital.

8. That in the event of either of the children being hospitalised then the father may visit the child in hospital for such period or periods as are arranged with the treating medical practitioner or social worker at the hospital unless the parties otherwise agree.

9. That the mother shall notify the father of any change in the children’s treating medical practitioner and of any change in the children’s medical conditions or treatment and the father being so notified shall contact the children’s medical practitioner to obtain any necessary instructions, treatment or training to allow the father to adequately care for the children whilst in his care.

10. That the mother will make the children available to communicate with the father by telephone at times to be agreed between the parties and in default of agreement on Monday and Wednesday between 6.30 pm and 7.00 pm with the father to initiate the telephone call on a telephone number nominated by the mother and the mother shall facilitate the telephone call and the children shall be at liberty to telephone the father as they wish.

11. That each of the parties is restrained from making any critical remarks about the other in the presence or hearing of the children or either of them and shall use his or her best endeavours to ensure that no other person conducts himself or herself in that manner.

12. That pursuant to section 65L a family consultant nominated by the Senior Family Consultant, Child Dispute Services at the Canberra Registry of the Court shall provide such assistance as is reasonably requested by the parties or either of them in relation to compliance with and the carrying out of all or any of the parenting orders made this day.

13. That the Registrar at the Canberra Registry of this Court forward sealed copies of the Orders made this day to:

    (a)Dr N, paediatric endocrinologist at the Sydney Children’s Hospital, Randwick for her information;  and

    (b)Dr S at the D Medical Centre.

14. That the parties shall note the obligations created by these Orders and the parenting orders made this day and the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Annexures A and B.

15. That all other outstanding applications of the parties are dismissed.

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:  CAC1614 of 2009

Mr Webber

Applicant

And

Ms Budd

Respondent

REASONS FOR JUDGMENT

Introduction

1. In these proceedings parenting orders have been sought by the father pursuant to his Application filed 2 October 2009.  One of the primary orders sought by him was that the two children of the marriage live with him.  The very helpful case outline document provided on the father’s behalf together with proposed minutes of orders did not pursue that issue and it is accepted that the two children remain living with the mother.

2. During the course of the hearing which took place on 14 February 2011, counsel for the father informed me that her instructions were to seek an order that the children live with the father.  Upon providing a short adjournment to enable her to obtain further instructions, that issue was no longer being pursued.

3. The father has sought orders for graduated and extended periods of time that the children spend in his care principally during the course of weekends and particular periods of time during school holidays, as well as other specified occasions.

4. The mother has been unrepresented in the proceedings before me, including the case management directions hearings.

5. The mother has not filed any affidavits notwithstanding having been given ample opportunity to do so, to which I will make subsequent reference.

6. The proceedings between the parties have an intensive history extending back to at least 2005 if not beforehand:  there having been numerous directions hearings;  hearings for the purpose of final orders being made;  interim hearings;  adjournments;  and other aspects of litigation between the parties.  Therefore, it seemed very much in their interest, particularly the interest of the two children the subject of these proceedings, to have this hearing proceed to completion, so far as it was reasonably possible to do so.

7. Consequently, upon the mother appearing unrepresented before me yesterday, she was given the opportunity without objection to state her position in terms of the orders sought by her.

8. In essence, the order sought by her is that there not be any order providing for periods of time that the father may spend with the two children or either of them, or that he may be able to communicate with them such as by telephone.

9. The independent children’s lawyer also provided very helpful assistance, including the provision of alternative minute of parenting orders, depending upon whether the mother appeared in the proceedings or whether the hearing proceeded on an undefended basis.

10. The independent children’s lawyer had sought an order which, in effect, reflected the terms of section 61C of the Act, as well as an order that the children live with the father.  Those orders were no longer pursued.

11. As a consequence the issues for determination by me are whether it is in the best interests of the children that:

    (a)orders be made for time to be spent by them in the care of the father;

    (b)if the answer is in the affirmative, the terms and conditions upon which such periods of time take place;

    (c)the opportunity for communication between the father and the two children by telephone.

Historical background

1. The brief history of this matter is as follows which represents uncontroversial facts.

2. The parties commenced to cohabit on 20 October 1993.

3. The parties subsequently married in 1996.

4. So far as I am aware the marriage was dissolved by decree or divorce certificate, although precise particulars are not before me.

5. The father is 41 years of age.  He lives in a committed domestic relationship in Canberra and is employed as a public servant.

6. The mother is 38 years of age.  The mother lives in D and is engaged in home duties.

7. The two children of the marriage are:

   (a)S who is 11 years of age having been born in November 1999.

   (b)E who is 8 years of age having been born in August 2002.

8. The parties separated on 25 May 2004 and have lived separate and apart from each other continuously since that time.

9. At the time of separation the two children were 4 years and 21 months of age respectively.  They have lived continuously in the primary care of the mother since the parties separated.

10. There have been a number of orders made in this Court which do not bear reiteration for the purpose of this Judgment other than the orders to which I will now refer.

11. On 6 May 2005 Faulks J made final parenting orders.  Those orders provided for the two children to live with the mother and for the father to have what was then described as “contact” for varying periods of time.  Subsequent to those orders, other parenting orders were made from time to time.

12. On 24 August 2010 Faulks J heard and determined a contravention application filed by the father.  Faulks J made a finding that the mother had, without reasonable excuse, failed to comply with orders of the Court.  His Honour determined that it was inexpedient to inflict any penalty upon the mother.  In relation to parenting orders, Faulks J then made interim orders which provided for the father to have the care of the two children every second weekend for a period of three hours on Saturday and Sunday between the hours of 12 noon and 3.00 pm.  Further orders were made to enable such an order to take place.

13. Orders were also made for communication, in particular requiring the father to communicate with Dr N.  Dr N is a specialist paediatrician who has been the treating doctor for the eldest child for the purpose of ensuring that the father’s knowledge of the optimum manner of managing the child’s health issues, to which I shall subsequently refer, can be availed of and for Dr N to reach some level of satisfaction as to the two children, but in particular the eldest child, being in the care of the father having regard to his ability to care for him.

14. Directions were made for the filing and service of affidavits and to enable the issues to be crystallised for a further hearing of what is known as the Less Adversarial Trial practice and procedure set down for 28 and 29 October 2010.

15. On 7 December 2010, upon the matter being listed before me for the purpose of pre-trial case management, given that I was to be the trial judge for this hearing, I made orders which fixed the hearing for two days commencing 10.00 am on 14 February 2011 in the Canberra Registry.  Further orders were made in relation to the parties having an opportunity to file and serve affidavits upon which they sought to rely.  In addition, an order was made requiring the parties to attend a child settlement conference to be organised by the independent children’s lawyer.  As a consequence, that enabled each of the parties to have approximately two months within which to file such affidavits of relevance that they may seek to rely upon.

Relevant legal principles

1. For the purpose of making parenting orders, section 60CA of the Act requires that a parenting order be made in the best interests of a child of the marriage and that that best interest factor is the paramount consideration.

2. Part VII of the Act provides for the rights that children have in terms of the relationship with each of the parties in order to further their development and education, in particular the relationship that a child is entitled to have with each parent.  What I have succinctly summarised was emphasised by counsel for the father during the course of her submissions.

3. However, it must be recognised that those rights do not stand alone.

4. The legislation makes it clear that all of such rights and the objects and principles for the purpose of making parenting orders are subject to an important exception.  That exception is when it is in the best interests of the child or children to do so.  For the purpose of determining what is in a child’s best interests, I am required to give consideration to what are described as primary and additional considerations contained in the provisions of section 60CC and its various subsections.

5. Those primary considerations include the benefit to a child of a meaningful relationship with each of the parents and the protection of a child from family violence or exposure to it.

6. The position, so far as the father is concerned, is that he only has the best interests of the children at heart and that he has ensured, so far as is possible to do so, that he is available to care for them and that his levels of knowledge and appreciation of their health issues, particularly those affecting the eldest child, are kept up to date.  I will refer to those matters in this Judgment.

7. The mother for her part opposes any period of time being provided for, in terms of care of the children by the father, and also opposes any communication order to enable the father to communicate with the children by telephone on the following bases:

   (a)that the father has sexually abused each of the children;

   (b)that the children do not wish to spend time with him or talk with him;

   (c)that the father has not demonstrated that he has the requisite level of knowledge and ability to properly manage the health issues that unfortunately affect the eldest child.

8. With regard to the matter of sexual abuse of the children and the matters relied upon by the mother, evidence in relation to such allegations was given during the course of the hearing before Faulks DCJ on 26 to 28 April 2005.  His Honour had the benefit of expert evidence, both in a written and oral form.  So far as one of the experts was concerned, a report was apparently tendered by the author of the report.  Nevertheless, he was not required to attend for cross-examination or to give further evidence orally.

9. The child expert in those proceedings, Dr W, psychiatrist, provided a substantiative report dated 3 December 2004 and subsequently gave oral evidence.  The expert evidence was also before his Honour in relation to the aspects of the health of the youngest child who the mother claimed had been sexually abused by the father.  As the Judgment delivered on 6 May 2005 made clear, the trial judge made findings that the allegations of sexual abuse had not been established.

10. There had not been an appeal by the mother from the orders made by Faulks DCJ on 6 May 2005.  In relation to the same allegations raised before me, there was no new evidence adduced with respect to any of such allegations.

11. Consequently, applying well-established principles, I am bound by the findings previously made in the judgment delivered on 6 May 2005.  I explained to the mother the purpose of such principles, namely, to re-agitate issues already determined between the same parties in proceedings of the same nature, amounts to, in effect, an abuse of process and would have the consequence of litigation never being brought to an end.

12. The mother had opportunities to appeal if she was so advised.  The mother has also had ample opportunity to adduce further evidence if, indeed, such evidence was not before the court during the hearing before Faulks DCJ due to reasons beyond the mother’s control.  Those steps were not taken by her.

13. It needs to be emphasised that, particularly as an unrepresented litigant, the mother has had generous opportunity to file and serve such material upon which she may seek to rely.

14. The mother was urged by me at the directions hearing on 7 December 2010 to make an urgent application for legal aid so that, in the event of her circumstances falling within the means test and satisfying the Legal Aid Commission as to any other criteria that they may wish to apply, the mother could be legally represented.  As a consequence, material could have been appropriately prepared, filed and served on her behalf, both by her and any witness that she sought to rely upon.  The mother was unable to explain to me why she did not avail herself of that opportunity.

15. Consequently, the mother quite clearly made a choice which she was free to do, namely, that legal aid was not being pursued by her for the purposes which I have indicated which may well have assisted the mother in the presentation of her case.

16. With regard to the issue of the father’s appropriate education, training and understanding of management required of difficult health issues associated with the eldest child, again for reasons to which I will subsequently refer, I am satisfied that he has undertaken the requisite steps to ensure that he is appropriately informed and reasonably able to care for the child in the event that it is in the eldest child’s best interests for that child to be in the care of the father.

The views expressed by the children

1. The mother emphasised that the views of the two children, and in particular the eldest child, should be adhered to.  The only evidence of their views comes through the mother’s evidence.  Her evidence is that the two children have consistently refused, or expressed opposition to, spending time with the father and it was implicit in her evidence that they also resist speaking with him on the telephone.  It is a difficult situation for me to deal with when a parent on the one hand is emphasising matters which she considers to be of great concern to her yet does not avail herself of the opportunities to produce affidavit evidence in relation to such issues.

2. The matter of the views of the children could have been ascertained by an independent witness, namely a family consultant in this registry.  Indeed, appointments had been made with the relevant family consultant, Ms V, so that she could prepare a comprehensive and relevant family report in relation to such issues having regard to her particular professional qualifications and experience.  The family report that was provided by Ms V is dated 21 October 2010 annexed to an affidavit sworn by Ms V which became Exhibit 2.

1. In the family report Ms V noted that her report:

   “...has not been completed due to the mother’s cancellation of three scheduled appointments.  Appointments for [Ms Budd] were made on 20 September 2010, 30 September 2010, and 21 October 2010.  Following the last cancellation, the consultant informed [Ms Budd] by telephone on that day that there were no other appointment times available prior to the hearing on 28 October 2010.”

   The hearing to which she refers was that which had been set down before Faulks DCJ which ultimately appeared to have resolved by agreement between the parties.  Unfortunately, if there was such an agreement, it was not reflected in any orders that were subsequently to be made by consent.

2. Consequently, Faulks DCJ was left with no other alternative other to ensure that the proceedings were set down for hearing before another judge, especially given that he considered he had become privy to at least part of the terms of the proposed agreement.  As a result, I do not have any evidence of the views of the children from any source other than the evidence of the mother to which I have referred.

3. The mother’s evidence must also be seen against a background where there have been considerable periods of time which the children have spent in the care of the father.  There is no evidence of substance upon which I can rely that such periods were marked by emotional disturbance for the two children or either of them.  However, the mother’s evidence is that the children returned on those occasions upset and expressing opposition to spending further periods of time with the father.

4. It is ironical given that evidence and the mother’s steadfast conviction that the father had sexually abused the two children, from time to time during the last few years, orders have been made by consent for periods of time that the children might spend with the father.  Upon those circumstances being drawn to the mother’s attention during the course of her evidence yesterday, the mother blamed her former lawyers.  The substance of her evidence was that she was left in the position of having the view that final orders made from time to time meant that they were literally final orders and could never be the subject of variation or to be set aside and that this Court would not make an order on principle, which would prevent a parent from spending time with the child.

5. Without more detailed evidence about such matters and not knowing the full circumstances of all matters that may have been the subject of advice, which in turn is a matter of client privilege which the mother waived, albeit not with full knowledge of the principles that apply, I am not in a position to be reasonably satisfied that such advice was given.

6. It would be a matter of grave concern if any lawyer, sufficiently qualified and experienced in a specialty jurisdiction such as family law, would give such advice.  Without a court knowing the full circumstances and the range of or detail of instructions that such lawyer received prior to giving such advice, such a finding should not be made.

7. Consequently, in the circumstances to which I have referred, I do not accept that the mother took no further steps on those matters due to legal advice that she had received.

8. I did raise with counsel, as well as the mother, that one lawyer to whom the mother referred was a solicitor with whom I had a professional and personal relationship over some years and that I was willing to hear an application that I disqualify myself from further hearing of the proceedings.  No application was made by counsel for the father or the independent children’s lawyer.  I explained the basis for such a possible application to the mother during the course of her giving oral evidence.  The mother also indicated that no application was made by her and that the matter should proceed.

9. I have been satisfied that the brief evidence given by the mother by reference to one of her former lawyers was not such as would prejudice me in making an impartial determination of the issues and orders in the best interests of the children having regard to the evidence before me.  As a result, I am not satisfied that the views of the children are such as to oppose spending time with the father or that there is opposition to him communicating with them by telephone.

The nature of the relationship of the children with each of the parties

1. I am satisfied that the children have a close and loving relationship with the mother.  I am also satisfied that in the past the children have had, if not a loving, then certainly a fond and compliant relationship with the father.

2. The difficulty of making any further findings is that the evidence of their relationship in recent times, and particularly over the last 12 months, is scant due to difficulties in enforcing or complying with orders to enable him to spend time with them.

The capacity of each of the parties to provide for the needs of the children including emotional and intellectual needs

1. I am satisfied that the mother has the capacity to provide for all of their needs, save and except in relation to their emotional needs with regard to their relationship with the father.  The father freely acknowledged that the mother has been a good mother to the children and has quite clearly carried out her parental responsibilities to a very high degree, especially given the difficulties associated with health issues affecting the eldest child.  Those health issues may be now conveniently referred to.

2. I have had the benefit of expert evidence provided by Dr N, as well as Dr S, general practitioner of the D Medical Centre.

3. Dr N by her report dated 27 September 2010 which is Exhibit 3, identifies major health problems affecting the child which include, but are not limited to, a particular category of diabetes and Cushing’s disease.  The diagnosis extends back to 2005 when the child was very young.  The child has had hospitalisation with surgery, as well as ongoing specialist treatment and review together with treatment by his general practitioner.

4. There are a number of aspects to his health which are of great concern.  They include hypoglycaemia which Dr N refers to as being such that it:

   “...can make [S] feel unwell at the time, and in its worst manifestation can result in confusion and potentially unconsciousness and seizures.  In the event that this was to happen, he would require an injection of glucagon.  Hyperglycaemia can also make [S] feel acutely unwell and increases his risk of long-term diabetic complications.  Keeping his glucose readings stable is a constant juggle of appropriate food (timing, and carbohydrate content) insulin injections and activity levels.  [S] [sic] diabetes is quite labile, meaning his BG response to insulin, food, and exercise is far more unpredictable than the average child with diabetes.

5. Dr N explains the importance of S maintaining stable glucose levels:

   “Keeping his glucose reading stable is important to reduce both the risk of low blood glucose readings (hypoglycaemia) and high readings (hyperglycaemia).  Hypoglycaemia can make [S] feel unwell at the time, and in its worst manifestation can result in confusion and potentially unconsciousness and seizures.  In the event that this was to happen, he would require an injection of glucagon.  Hyperglycaemia can also make [S] feel acutely unwell and increases his risk of long-term diabetic complications.  Keeping his glucose readings stable is a constant juggle of appropriate food (timing, and carbohydrate content) insulin injections and activity levels.  [S] [sic] diabetes is quite labile, meaning his BG response to insulin, food, and exercise is far more unpredictable than the average child with diabetes.”

6. Dr N completed her report by stating:

   “[S’s] medical problems are complex and his management changes from day to day.  In addition to the knowledge required to look after [S], a process needs to be agreed and implemented to exchange information and equipment at the time of transfer between both parents as to current health issues.”

7. Dr N then provided advice with regard to management of the child’s diabetes, including the supply of various medications and equipment that the father should have at hand for that purpose.

8. Exhibit 4 is a further report of Dr N dated 4 February 2011.  In that report Dr N, referring to previous correspondence in September 2009 in which she had outlined S’s “complex medical problems” and proceeded to state:

   “Since this time the main issue with [S] [sic] health has been in regards to the continued difficulty in managing his diabetes mellitus.  His other conditions whilst stable, require the continued vigilance and monitoring as outlined in the previous correspondence.”

9. Dr N concluded in Exhibit 4 as follows:

   “On the basis of this anxiety and high risk of psychological problems in [S], my recommendation to both parents was, that whilst [the father] may have the understanding of [S’s] medical problems to manage him safely, it was in the best interests of [S’s] mental health that the time [S] spend in [the father’s] care should be gradually increased from the current level and that should initially be at most during the day time.  I specifically suggest to both parents that this should be from after breakfast with [S] returning to his mother’s care before dinner as this avoids the times that [S] is most anxious about his health.  Both parents gave verbal agreement to this suggestion during the October hospital admission.  In addition to my observations of [S] and his family, I think it would be appropriate for the Court to consider [S’s] opinion regarding the time he feels comfortable in his father’s care.”

10. I interpose here that that last opinion is one which I am unable to explore any further on the evidence due to its limitations and the loss of opportunity provided to the mother for such views to be expressed, the subject of my earlier review and findings.

11. Exhibit 1 is a medical report dated 11 February 2011 provided by Dr S who is the general practitioner for the mother and the children and practises at the D Medical Centre close to the place of residence of the mother and the children.  Dr S states as follows:

    “As you know from previous applications to the Court, her son [S] has serious medical issues.  Some progress has been made over the last year but the particular issue at the moment is his highly labile blood sugars with frequent hypoglycaemic episodes.  These occur with little warning and progress rapidly to a state of altered consciousness.  There have been several over the last few weeks.”

12. It is obvious from the medical evidence that not only does the child unfortunately have very serious medical issues, but that those who accept the responsibility to care for him, which in the first instance are the mother and potentially the father, must be vigilant as to any possible changes in the child’s health and symptoms.  They must be ready to ensure that he receives not only proper care from them, but professional attention from medical practitioners best able to provide medical service for the child.

13. That matter is one which, in my view, goes very much to the heart of the orders which I will subsequently make in these proceedings.  As I have endeavoured to emphasise at times during the hearing, the legislation which has been in effect now for over 35 years has consistently emphasised that for the purpose of making orders about what used to be called the welfare of the child being the paramount consideration is now expressed as the best interests of the child being the paramount consideration.

14. That is where the focus must lie, not on what is best for one parent or the other, nor does the question of inconvenience to a parent assume such priority that it may tend to overtake the paramount consideration to which I have referred.  That is not to say that parents’ views, requirements, and interests are unimportant, quite to the contrary.  However, ultimately it’s the child’s best interests which is the paramount consideration and that is what I will emphasise, regardless of such dissatisfaction or disappointment that one parent or the other may have with regard to orders that are ultimately made.

15. With regard to the father’s capacity to provide for the needs of the two children, I am satisfied that he does have the appropriate capacity.  As I have earlier stated, I am bound by the earlier findings in relation to the serious issues of child abuse that the mother had raised and which were determined over five and a half years ago.  They cannot be revisited for the reasons previously given.  So far as his other behaviour or conduct that might be relevant to the issues, the father admitted that some years ago in a fit of irritation and frustration he had hurled a pot plant through the window of the premises in which the mother was residing.  He expressed his regret and paid for the damage.

16. With regard to his perceived lack of knowledge or education and ability to manage health issues associated with the eldest child, being a matter raised by the mother, I am satisfied on the evidence before me, which includes the expert evidence of the child’s treating specialist Dr N that the father has suitably informed himself.  The father’s evidence, which I accept, is that he ensures he not only has the appropriate facilities to care for the child but that the mother provides a pack which has all the necessary supplies and information.  In addition, the parties have been using a communication book for the purpose of exchange of information.

17. Consequently, I am satisfied that the father has the capacity to provide for all of the needs of the children.  No issue was raised in relation to his capacity to provide for the other needs of the two children, nor was any issue raised in relation to his partner.

Family violence

1. With regard to matters of family violence, I have referred to the findings previously made and the lack of any new evidence before me which would persuade me that those issues should be revisited.  Consequently I find that matters raised in terms of family violence have previously been judicially determined.  No new findings are required to be made by me, given the circumstances previously outlined.

The likely effect upon the children of separation from the mother with whom they live

1. A matter of caution with respect to the likely effect upon the children of separation from the mother with whom they live is that the eldest child does suffer from anxiety, given his concern as to changes in his condition which may occur from time to time during the day, as well as no doubt other times.  That is a matter which is emphasised by Dr N.  As a result it would seem only a matter of commonsense that some graduated periods of time to be spent by the father should take place, if it is indeed in the best interests of that particular child to do so.

2. The father would, of course, also need to be acutely sensitive to the child’s feelings and to appreciate that there may be changes in the child’s outward manifestation of health issues which should be promptly attended to by an appropriate professional and not simply left in the hands of the father to deal with on the basis that perhaps the issue will recede.  It is impossible to be more specific without knowing all of the circumstances that may occur.  I am satisfied that the father has carried out all that has been asked of him in terms of being properly informed and educated.  The father has the necessary parental attitude to ensure that he will not create any risk for the child’s welfare in the event of the child being in his care, regardless of the period of time that is involved.

3. In terms of the period of time that might be encompassed, Dr N’s written evidence is that it may be appropriate for it to take place during the day after breakfast and concluding before dinner.  Nothing more precise was stated.  There is currently an order providing for three hourly periods to be spent by the children with the father.  Dr N was of the view that that could slowly increase.  I accept her evidence.

Conclusion

1. I have determined that orders will be made to enable the father to spend time with the children for the periods to which I will subsequently refer on the basis that it is in their best interests that such orders be made.  The orders that I will make reflect a resumption of the periods on each Saturday and Sunday for two weeks between the hours of 12.00 pm and 3.00 pm, being similar to orders made last year.  Following each of those weekly periods, on two occasions, those periods then be extended for a further period of 12 weeks, being each alternate Saturday from 9.30 am until 4.30 pm commencing on the first Saturday after such periods earlier referred to have taken place.

2. After that period of 12 weeks there will then be an order providing for each alternate weekend from 9.30 am Saturday until 4.30 pm Sunday, but that is on the basis of an important term and condition.  That term and condition will be that the parties have been jointly advised in writing by Dr N, or other treating paediatric endocrinologist for the child, that his health issues and the management of them by each of the parties are not likely to be adversely affected by the eldest child spending alternate weekends in the care of the father.

3. Consequently, that provides the responsibility for both parents not to simply act upon their own no doubt well-meaning view about what is best for the child but to seek the advice from the treating specialist who, by the very nature of her qualifications, experience and years of treatment of the child is best placed to provide the determining view as to the eldest child’s health issues and management of them by each of the parties.

4. It is obvious that the reasonable needs and requirements of the two children will change from time to time and this is due to their current young ages.  That which is appropriate for them this year may not be appropriate in following years.  In addition, there are other serious issues so far as the eldest child are concerned which may require substituted, alternative, or indeed other periods of time that he spends in the care of the father, rather than one of the specified periods to which I have referred.

5. The parties are urged to place the child’s needs as the only consideration and not questions of their convenience or whether or not time might be spent with the child in one area as opposed to another area.  After all, the purpose of making orders is to ensure, as one of the primary considerations states, the benefit to a child of having a meaningful relationship with each parent.

6. It is not only the question of a meaningful relationship but also the benefit to a child of such relationship.  That should be at the foremost, rather than whether it would be more pleasant to spend time with a child in D or Canberra.  I am confident that each of the parties individually is able to have these considerations at the forefront.  The real difficulty is that the parties have a poor relationship which has existed over some years and communication in a constructive way is almost non-existent.

7. It is sometimes expected in this Court that court orders will somehow or other structure a life for people or force them to behave and conduct themselves in a manner which is suitable for an adult, responsible and mature person.  Ultimately the Court’s function is to determine legal issues.  It is not a clinic for psychology or a branch of a government department providing for social welfare services.  As a result, there comes a time when parents have to exercise their own responsibility in terms of furthering the best interests of their children.

8. Consequently, I consider the orders that I will make to be as practical and realistic as is possible on the evidence before me.  Making such orders work for the benefit of the children must ultimately lie in the hands of the parties who are the children’s parents.

1. I will not be making orders providing specifically for periods to be spent during school holidays with the father or other specific occasions.  The reason is the emphasis upon not only the nature of the issues affecting the eldest child but that those issues are volatile and require day-by-day review and sensitivity by the parent having the care of the child.

2. Whilst it would no doubt be satisfying, particularly for the father, to have orders made which specify periods during school holidays and other occasions as representing a platform for the relationship to work between himself and the mother and certainly between himself and the two children, on the other hand it could be used as a basis for further acrimony or additional anxiety and dispute between the parties.

3. I am guided by past judgments in the Full Court that a primary carer’s anxiety in relation to orders that might be made is a relevant consideration.[1]  I accept that the mother does have a sincerely based anxiety in terms of the care of the children and in particular the eldest child.  Whilst I have not accepted her evidence such as it has been in relation to past determined issues of child sexual abuse, I do accept her concern and worry in relation to the management of the eldest child’s health issues by the father.

   [1] B and B (1993) FLC 92-357 at 79,780; Russell and Close (unreported 25.06.1993);  Sedgley and Sedgley (1995) FLC 92-623; Re Andrews (1996) FLC 92-692.

4. The father, to his credit, freely acknowledged that the mother has been a good mother for the children, has cared for them well, and on a positive side, so far as the eldest child is concerned, his health at times has been at a sufficient level to enable him to develop further through sporting activities with other children of his own age.

5. Consequently, the mother’s concerns must be given appropriate weight, after all she has had and continues to have the daily care of two young children, one of whom has had debilitating health issues.  The pressures that she has had to deal with in that regard on a daily basis accentuated by the range of medical and hospital treatment that the child has had to undergo and particularly, as for much of that time, as a single parent cannot be overstated.

6. It is very much in the children’s best interests that her anxiety be laid to rest, so far as it is possible to do so, with regard to the father’s care of the eldest child.

7. Consequently, I have concluded that by providing an escalating period of time over a weekend in the terms to which I have referred, bolstered by the need to seek and obtain advice from the eldest child’s treating specialist, should enable there to be development of the father’s relationship with the two children, especially the eldest child, in their best interests as well as demonstrating to the mother that misgivings she has had in the past no longer have any foundation.

8. I will make an order which provides for the parties to agree upon substituted or alternative periods that will reflect hopefully an improved relationship between them as well as proper management of the eldest child’s health issues.  Such an order will be in general terms which can encompass school holiday periods or such other additional periods or substituted periods that the parties may agree upon.

9. It is not possible to lay down a program of perfection.  If one party or the other has a real basis for seeking orders to be changed based upon unreasonable opposition by the other party, then he or she always retains a legal right to make a fresh application to a court exercising jurisdiction to set aside or vary orders.

10. The parties have had a long history of litigation between them.  Further litigation should be avoided so far as it is reasonably possible to do so.  Consequently, I will make an order, pursuant to section 65L of the Act, to enable a family consultant nominated by the senior family consultant, Child Dispute Services at the Canberra Registry to provide such assistance as is reasonably requested by the parties, or either of them, in relation to compliance with and the carrying out of all or any of the parenting orders that I will make.

I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose delivered on 15 February 2011.

Associate: 

Date:  4 March 2011