Xiu and Hodges

[2013] FamCA 175

FAMILY COURT OF AUSTRALIA

XIU & HODGES [2013] FamCA 175

FAMILY LAW – CHILDREN – Parental responsibility – Mother to have responsibility for education – Father to have responsibility for health

APPLICANT: Ms Xiu

RESPONDENT: Mr Hodges

INDEPENDENT CHILDREN’S LAWYER: Barbayannis Lawyers

FILE NUMBER: MLC 6222 of 2008

DATE DELIVERED: 14 February 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 11-14 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Chislett

SOLICITOR FOR THE APPLICANT: Lampe Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Baume

SOLICITOR FOR THE RESPONDENT: Horsfield & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Boymal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Barbayannis Lawyers

Orders

IT IS ORDERED BY CONSENT, SAVE FOR PARAGRAPHS 4(a), 4(d), 5, 12, 13 AND 16 – 25 THAT:

1. That all previous parenting orders in relation to the child K born … April 2002 shall be discharged.

2. That subject to paragraphs 3, 4 and 6 of these orders, the mother shall have sole parental responsibility for educational decisions for the child.

3. That the father shall be permitted to home-school the child on one day per week during school terms, on a day when the child is living with him pursuant to these orders, and being a day agreed between the parents at the start of each school year, and failing agreement, a day to be chosen by the mother provided that the mother shall be and is hereby restrained from making any educational appointments for the child on the home-school day unless:

   (a)The father consents;

   (b)It is the only available day and does not involve recurring periodic appointments, and in this event she shall give him 7 days notice; and

   (c)She shall be responsible for transporting the child to and from any such appointments.

4. That the mother shall arrange an annual case conference to discuss the child’s health and education:

   (a)To be held at MM Centre, and if unavailable, that the mother shall arrange premises other than Y School;

   (b)To be facilitated by a person as agreed between the parents and failing agreement as arranged by the mother;

   (c)To be held no later than the end of the third school term;

   (d)To be attended by each parent and up to 4 people chosen by each of them to include any family, doctors and allied health or teaching professionals, in addition to any other person nominated by the child’s school.

   (e)With an agenda to be provided by the mother to the father at least 28 days before the conference, to be returned to her by the father with any additional agenda items within 14 days of his receipt of it;

   provided that in the absence of any agreement the mother shall determine the educational issues and shall, between annual conferences, keep the father informed of any educational decisions, and advise him of appointments.

5. That the mother :

   (a)Shall keep the father advised in writing of the names of the child’s educational related providers for the child; and

   (b)As soon as practicable after any consultation with an educational provider advise the father in writing of the reason for the consultation and the recommendations thereof and provide the father at her expense with copies of any written report of the educational provider.

6. That the father:

   (a)May not arrange any educational appointments for the child without the mother’s   prior consent; but

   (b)May continue to take the child to LL Centre and to organise his use of communication devices;

   (c)May consult with any university special education departments in relation to home-schooling and keep the mother informed of the content of the consultations.

   (d)May attend any relevant meetings at the school with the approval of the school principal.

7. That if the mother and father fail to agree on the child’s attendance at a mainstream school the parents shall follow the recommendation provided by the majority of or a nominee of the following:

   (a)Y School:

   (b)The child’s paediatrician;

   (c)The Department of Education; and

   (d)The proposed mainstream school

   and such mainstream school shall be located within 10 kilometres of the mother’s     residence or such further distance with the written consent of the mother.

8. Subject to paragraph 9 of these orders:

   (a)The child shall live with the father during school term and holiday time each week from immediately after school Wednesday, or from 12.00 noon Wednesday when it is a non school day, to 6.00pm Saturday; and

   (b)The child shall live with the mother at all other times.

9. For the purposes of Christmas and Father’s Day:

   (a)The child shall live with the father;

   (ii)From 6.00pm on 24 December 2013 to 3.00pm on 25 December 2013 and each alternate year thereafter;

   (iii)From 3.00pm on 25 December 2014 to 6.00pm 26 December 2014 and each alternate  year thereafter;

   (iv)On the Father’s Day week-end in each year from 6.00pm Saturday to 6.00pm Sunday;

   (ii)            At such other times as may be agreed.

   (b)The child shall live with the mother:

   (i)  From 3.00pm on 25 December 2013 to 6.00pm 26 December 2013 and each alternate year thereafter;

   (ii)            From 6.00pm on 24 December to 3.00pm 25 December 2014 and each alternate year thereafter;

   (iii)          At such other times as the parents may agree.

10. For the purpose of change-overs in these orders:

    (a)All the child’s school possessions, communication devices and school uniforms must be returned with the child at the conclusion of any live with period;

    (b)The father or his nominee shall punctually collect the child from and return him to:

    (i)School where such time commences or concludes on a school day;

    (ii) The mother’s residence when such time commences or concludes on a non-school day.

11. That the father and mother shall:

    (a)Keep the other advised at all times of the child’s current residential address and landline and mobile telephone numbers;

    (b)Advise the other immediately in the event that the child suffers serious illness or injury; and

    (c)Authorise all schools the child may attend from time to time to:

    (i)Provide the other, at the expense of the other, copies of all school reports, school notices and school photographs in relation to the child;

    (ii)Communicate with the other by telephone, in writing or by personal attendance, in respect to the child’s progress at school; and

    (iii)Permit the other to attend all school functions to which parents are normally invited.

12. That the mother shall be and is hereby restrained herself or by her servants and agents from writing letters or sending material to any doctors, health professionals, schools, educators, the father, his family members or friends, or the Department of Human Services with any complaints in relation to the state of the father’s home or car, his day-to-day care of the child, or the father’s mental health.

13. That subject to paragraphs 4, 14 and 22 of these orders the father shall have sole responsibility for health decisions for the child, including but not limited to continence, dental and allied health services.

14. That the mother and father be entitled to retain their own general practitioner in respect to the child’s day to day care and minor ailments and make appointments for the child’s attendance when he is in their respective care.

15. The mother and the father;

    (a)Will keep the other advised of the name and contact details of the other’s general practitioner for the child; and

    (b)Will advise the other as soon as practicable after any consultation with the child’s general practitioner of the reason for the consultation and the recommendations and treatment prescribed by the general practitioner.

16. That the child’s paediatrician shall be Dr R or her nominee.

17. That the father be and is hereby restrained from making specialist health and health allied appointments  for the child on a non-home school day or any other day on which the child lives with the mother unless:

    (a)The mother consents;

    (b)It is an emergency;

    (c)It is the only available day and in this event he shall give her 7 days notice; and

    (d)He shall be responsible for transporting the child

18. That the father and mother shall follow all recommendations and directions of the child’s paediatrician and any other allied health service provider.

19. That the father shall follow all recommendations and directions of his nominated general practitioner for the child and the child’s paediatrician in respect to referrals to any other health related specialist and service.

20. That the father:

    (a)shall keep the mother advised in writing of the names of the child’s paediatrician and any other health related providers for the child; and

    (b)as soon as practicable after any consultation with a health provider advise the mother of the reason for the consultation  and the recommendations, directions and treatments thereof and provide the mother at his expense with copies of any written report of the health provider.

21. That the mother be restrained from seeking any health and allied health service referrals from her nominated general practitioner for the child.

22. In the absence of any agreement in relation to the agenda for health issues at the annual case conference the father shall determine the health issues and shall. Between annual conferences, keep the mother informed of any health decisions and advise her of appointments.

23. Notwithstanding these Orders:

    (a)The Mother be entitled to attend upon any of the child’s  service providers without the child; and

    (b)The Father be entitled to attend upon any educational institution without the child including any school at which the child attends from time to time and any health professionals at the child’s school.

24. That the Independent Children’s Lawyer shall send a copy of these Orders to Y School, Dr R and each parent shall give a copy to their chosen GP.

25. That each party is hereby restrained from filing any application under the Family Law Act 1975 (Cth) without first obtaining the leave of a judicial officer.

26. That the appointment of the Independent Children’s Lawyer be discharged.

27. That all existing applications shall be otherwise dismissed and the case removed from the list of cases awaiting finalisation in the court.

28. That pursuant to s65DA(2) and s62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties to adjust to and comply with these orders are set out in a Fact Sheet attached hereto and these particulars are included in these orders.

29. That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.

NOTATION

1. The Intervention Order made in the Magistrates Court at Melbourne on … February 2013 due to expire on … May 2014 is not inconsistent with these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Xiu & Hodges  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 MELBOURNE

FILE NUMBER: MLC 6222 of 2008

Ms Xiu

Applicant

And

Mr Hodges

Respondent

REASONS FOR JUDGMENT

1. K (“the child”) is now eleven.  His physical and intellectual disabilities still mean that he requires basically 24/7 care.  He has been the focus of extensive litigation: three major rounds spanning almost 40 days, or eight weeks of sitting time if you look at it that way. 

2. There have been two previous very long hearings.  In June 2007 I heard the case over a period of about 10 days, and in June 2011 over about 12 days.  Sadly, these proceedings started within a relatively short time of that second hearing.  The stresses and distractions of so much litigation has taken its toll on the parents and could only be unhelpful to the child.

3. Paradoxically, underlying cause for a lot of the litigation has been because both his parents love the child very dearly and want what is best for him – as they perceive it.  The trouble is they perceive it differently and the added trouble is that they perceive it so fervently. 

4. Dr X, an experienced psychiatrist, has given a forensic psychiatric report about each parent and has noted in the shortest summary form that both parents display traits of rigidity and inflexibility, to some extent obsessively, in the way they approach things, but that is not to say that either has a psychiatric illness.

5. It is ironic that what appeared to be the new facts and circumstances that warranted this new round of litigation revealed themselves as virtually “more of the same” once the detailed material was to hand.  What was new though, was the crisis that had erupted and it was a crisis that erupted because of the parents’ ongoing declining capacity to communicate with each other.  Their communication had reached a point of some violent exchange, and intervention order proceedings. Most notably, it had reached a stage where doctors who had treated the child for most of his life simply refused to remain involved.

6. Tragically for the child, there was an impasse between his parents and his treatment was impeded, as indeed it had also been when the matter last came before me. 

7. The mother has sought a number of orders.  I did not ultimately hear all of the evidence but I did make it clear to counsel in the course of the case that some of those applications were simply not going to succeed.

8. I did that conscious that natural justice and procedural fairness will usually dictate the fullest hearing before a view can be reached.  In this case however, because the issues raised were identical to issues that I had heard over some 22 previous days, I was in the unusual position of being able to fulfil my responsibility not only to the child and this family, but also to other families and to proportionality generally in court proceedings, by saying there were some issues that simply should not be aired further and it was on that basis that some discussion broke out between lawyers.

9. Just to make it clear,  I note that the mother once again sought a K-centred home, one home that the parties would use for the child, set up for his particular needs.  She has always pursued that in front of me.  I must say that it has now moved beyond what I would have described in earlier hearings as the “ideal” to something that is really no more than a “fantasy”.  It could never possibly work.  The intervening factors since the matter first came before me, including the escalating conflict, the intervention order, doctors refusing to act as I have just mentioned, mean that putting the mother’s case at its highest, it is simply not a viable option for the parents to share a home in that way.

10. The mother also asked that the father’s time take place at his mother’s home.  I have decided that issue twice previously.  She seeks it on the same basis that the child is unsafe in his father’s cluttered and untidy home.  In fact, orders that I have made previously were specifically designed to stop the mother from raising those issues, and to stop her from writing to people about those issues.  Even though she has clearly not let go of the issue, I would not and made it clear that I would not visit the same issue for a third time.

11. Moreover, I am conscious that the paternal grandmother has said that she does not agree to the proposal and, therefore, it is simply untenable. 

12. The mother also wants the father’s home-schooling day with the child to stop.  Again, it is an issue I have already decided twice.  There is no new argument offered, and that is why I made it clear that it is an issue that really could not sensibly be pursued. 

13. The mother has also tried to control the day that the father spends with the child, by suggesting that he have university students with him who could help with some form of curriculum.  There is nothing intrinsically wrong with that proposal on the mother’s part.  It is well-intentioned, it is well-researched, and I fully understand why she would make that sort of suggestion, but again it is completely impractical to start prescribing what the father can and cannot do on that day.  What these parents clearly need is the autonomy to care for the child in their own way in their own homes, subject of course to his particular needs for some continuity and routine.

14. Finally, I note that the mother has wanted the child’s time with his father reduced a little.  I do not for one moment suggest that she was deliberately trying to reduce his time in order to diminish his relationship with the child in any way.  She was simply trying to come to an arrangement whereby the child would live with her during school time so that she could ensure that he goes to school on time.  In fairness to her, and to my astonishment, there is still a problem with the father getting the child to school in a timely way.  If I refer to there being “same old/same old” issues in this case, that is definitely one of them.

15. The mother was suggesting that the child would have longer periods during school holidays with his father, to make up for the day-to-day reduction.  However, I am conscious that the child has sufficient needs, that caring for him is really very hard work for whoever is in charge at the time.  I know his parents adore him and they might not see it as hard work, but objectively speaking he does require a great deal of care and assistance and the task is a very hard one that they rise to. 

16. I am not critical of the mother for this, but it is obvious on the evidence that I heard so far – and I did not hear all of it – there have been various occasions when she has asked the father or his mother to step in and have the child for extra time.  And, for example, when she was moving home there was a whole month that the child was out of her care.  She has no extended family here and I think it is excellent that she asks when she needs that help, but I am satisfied that there is no basis at all for putting the child more in her care in blocks of time as she sought.  They both need to continue sharing the task. 

17. Ultimately, after some of my observations along the lines of those I have just made, and after discussions, to their credit, the parties agreed a substantial number of orders.  The parents agreed, with the ICL’s agreement, that the living arrangements for the child will remain in accordance with my previous orders.

18. They have agreed that the mother shall have sole responsibility for the child’s educational decisions, subject to an annual case conference between the parents, schools, health professionals and others.   The father’s involvement at LL Centre will continue.  LL Centre is the organisation that helps with the child’s communication.  The father initially sought it out and it has been successful.  Also, the father will have mechanisms to obtain information about the child’s educational setting.

19. There were a number of small issues determined by me when I was shown the agreed Minutes of Orders, and they have been included into the orders. 

20. There was one outstanding remaining issue and that was as to who would take responsibility now for medical issues.  Ideally, both parents would remain responsible for those important issues.  But that has been tried.  After the first case, it became apparent that it did not work.  Another version was tried after the second case, and given the scenario of crisis that I outlined a little earlier, it was clear that that did not work either.

21. I approached this difficult question on the basis of certain givens. 

22. First that both parents do adore the child and do try to do their best by him. 

1. Next, that the child has multiple ongoing issues.  They were briefly summarised by Dr M in late 2011 when she described the child as having “ongoing intellectual disability, motor dyspraxia and autism” and that he remained “incontinent and verbally very limited”.  Now, with the passage of more than a year, his incontinence has shown a few optimistic signs, but he does remain largely incontinent and I think it would be fair to expect that, perhaps, some of his verbal communication has improved a little with the help that he has been having, but her summary then is still sufficiently apposite for today’s purposes.

2. Another given is that the child is not necessarily facing urgent medical issues as such.  Dr M describes him as “very healthy”. 

3. It is a given that the parents have, as I have noted, different and in each instance rigidly held views.  Both parents have presented difficulties to the doctors who have treated the child over the years.  The mother has relentlessly pursued the same issues, particularly in relation to the father’s home and his safe care of the child.  And there has been, I have heard over the years, an ongoing issue when the father has not accepted advice and at times has been bombastic as a result, although it would appear from Mr O’s affidavit, albeit I emphasise untested, that the father may well have been working very hard on the way he presents himself when he disagrees with someone.

4. Another given for me is that sadly the parents can no longer attend doctors together.  The events in 2011 that led to Dr G, the child’s longstanding GP, and Dr M, the child’s longstanding paediatrician simply refusing to remain involved with the family make that much clear.  In that context I note the mother’s well-intentioned but totally unrealistic suggestion that they should in the near future be able to attend doctors together.  They cannot. 

5. It is a given too that each parent needs to be kept informed and have full access to an understanding of the child’s health needs, as they are both caring for him and he does have those special needs.

6. It is a given, unfortunately, that neither parent can be trusted to communicate well or fully with the other about these medical issues.  And it is a given that, although I doubt it is deliberate or conscious, there is a huge power play now that is established between the parents so that each is so wedded to their own views that they simply cannot give way to the other. 

7. I said in the course of the hearing that there is no ideal solution.  In fact, we are really now a very long way from any ideal solution for the child.  It has got to the point where I have even had to revisit past solutions that I have rejected. 

8. Dr G, during the last hearing, suggested that each parent have one portfolio, one for health, one for education.  That is the course proposed to me now by the ICL and the father.  It is rejected by the mother, but I see it as the only remaining viable option.  It simply will not work for the child if one parent - either parent – takes over responsibility for all the decisions.  It would leave the other parent caring half-time for a child who needs intense care and supervision, whilst nursing the grievance and loss from feeling excluded from important decisions.  The way things have evolved, although I had hoped last time that I could have removed some of the uncertainty for the child, I think it is no longer in his best interests to have a situation whereby either parent feels disenfranchised.

9. At the same time, as noted, it is certainly not in the child’s best interest for the parents to act together with experts.  And it would also not be in his best interests for either parent to be excluded from obtaining information that they require from the experts even if those experts were outside the parent’s particular portfolio of responsibility. 

10. The only viable option left to me at this stage is, as I said, the scheme proposed by the ICL and supported by the father, whereby the mother has overall responsibility for education, and the father has overall responsibility for health.  They and the relevant experts and family members shall attend an annual case conference to discuss both aspects of the child’s life.  Each parent should be free to use their own GP, so that they can attend to the child’s day-to-day medical needs. 

11. The child’s education at the moment should remain at Y School with one day a week home-schooled by his father.  The experts can have the say on mainstream schooling in the future, that being a very sore point and a difficult issue between the parents. 

12. The paediatrician shall be Dr R or Dr R’s nominee.  There has never been an argument that Dr R is other than a very fine doctor.  As the ICL has not been able to contact her, I cannot simply make the order that it be Dr R because it may not suit her, but if it is not her, there is every reason to be comfortable that she would have a suitable person as her nominee.

13. The mother will be able to obtain information from the doctors, on the structure of the orders as put to me, and the father will be able to obtain information from the school on the structure of the orders.  That overall schemer is the only one that I see as appropriate now for the child, but I am left with two concerns. 

14. The first is that there must be a stop to this endless litigation and it is very hard for me to feel confident that it will occur.  I am concerned that there is a mindset in this family that the court is the place of first resort when there is an issue with the child. 

15. There will always be contentious issues in parenting children even when parents remain together, but certainly when they separate, there are bound to be more complications.  With the degree of care that each parent needs to give the child, the complications here are more profound.  But if they rush to court each time there is an issue, then their energy and money and time is diverted. 

16. A very poignant piece of evidence I heard was that the parents have sometimes cooperated well, in the context of swapping the child, when one or the other is working on their affidavit for court.  I am not sure the parents could see the irony in that, but it certainly was not lost on me. 

17. I will make an order restraining each parent from returning to court without leave of a judge.  I am concerned that they must not misinterpret that order, to think that it simply means, “So each time we go to court we just get leave of the judge first”.  The idea is that the court will be closed off to them, unless there is a genuinely new and serious issue that only a court can address.

18. The second concern that I have is one that I cannot solve today.  I want to put it on the table so that the parents understand that if this concern comes to reality, there will be no option but the most draconian measures in relation to the care of and decisions for the child.  The concern is that there is still an obvious potential for the parents, either together or separately, to alienate various experts involved in the child’s care. 

19. I have seen instances of the mother pushing on issues long-closed, that have clearly caused anxiety and distraction to doctors who have been asked to deal with issues that are not medical in nature, and they have been drawn into litigation when they are far too busy looking after sick children and others.

20. I have also seen the father questioning beyond a reasonable or useful amount, for example alienating the school in the manner that he has done in the past. 

21. The stakes are high for both these parents now, because the court simply has run out of options.  It is the last throw of the dice for both of them and if this matter returns to the court I cannot see any solution other than the solution proposed by Mr O, the psychologist the father has been seeing, that possibly a guardian for the child would need to be appointed by another tribunal, so that someone outside the family, unrelated to either of these loving parents would, in fact, be the person charged with the responsibility to make decisions for him.

22. It is simply not possible for the child to have the childhood he deserves and the care that he needs if his parents remain constantly at war about what is best for him. 

23. When it comes to the orders, I have done a fair bit of work on the orders so that I have combined the two sets of orders, but the one thing that stood out for me that I think was an oversight was in what was order 3(c) of the health orders proposed by the ICL and the father.  It has the parents being restrained from attending upon the other’s nominated general practitioner save with the written consent of the other parent and the consent of their nominated general practitioner.  And that is now in conflict with what was proposed of the mother being able to get medical information.

24. Remember the other order - we took out the restraining order which was 10, “The mother be restrained from making or attending” and we put in instead an order - it is just hard for me, I have renumbered them all, but we put in the one that, “The mother is entitled to attend upon any of [the child’s] health service providers”.  So should I, perhaps, just delete (c)?  Okay. 

RECORDED   :   NOT TRANSCRIBED

1. So the first lot of orders that were largely by consent, after order number 12 I have then added in what became 13 to 25, which is the other set of orders.  Because they are all the substantive orders.  And then it left all the ones that were just cleaning up the proceedings.  And 13 to 25 I have shown - you will see which ones were by consent and which ones weren’t.  And the only one that needed reworking for numbers was what was paragraph 1, because it referred to paragraphs 2, 10 and 14 and paragraph 4 of the others.  I have done it, I think, correctly.  I have made it now - it will be subject to paragraphs 4, 14, which is the next order, and 22 of these orders.

2. And that works.  And I deleted the rest of it, the reference to paragraph 4, because it no longer applied actually. 

RECORDED   :   NOT TRANSCRIBED

1. I am going to make orders in accordance with the minutes dated today’s date.  I will direct they remain on the court file.

RECORDED   :   NOT TRANSCRIBED

1. And the ICL should prepare the orders.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 14 February 2013.

Associate: 

Date: