FATHER SEEKS FOR OVERNIGHT TIME WITH HIS CHILDREN WHO IS DIAGNOSED WITH OBSTRUCTIVE SLEEP APNEA
Beshara & Halim [2021] FCCA 244 (12 February 2021)
This is a parenting application filed by the father seeking to spend overnight time with his child. The mother is concerned about the child spending overnight time with the father since the child has been diagnosed with moderate obstructive sleep apnea.
Facts:
This is a parenting case about a child, X, who is five and half years old. X lives with his mother in Darwin. His father lives in Region B and X has not spent any time with his father since mid-2019 when his father visited Darwin for a relatively short period when X went into hospital for some surgery.
X suffers from moderate obstructive sleep apnoea. He is under the care of a pediatrician and he uses a machine, called a CPAP machine, during the night to monitor his sleep, sleeping, breathing and oxygen levels.
The father did not dispute that the child suffers from the condition but he asserted that there was no serious risk to the child's health from the condition. He said that if the child were to spend time with him in Region B, he would purchase a CPAP machine and he was perfectly capable of operating it correctly and monitoring the child's health while in his care. The father is a medical professional.
The mother asserts that such are the risks to the child's health, if the father does not adequately monitor the child's health while he is in his care, that the child should not spend overnight time with the father in Region B until he turns eight years old.
Issue: Should the child spend overnight time with the father?
Law:
Analysis:
The court is satisfied that there is benefit to the child in having a meaningful relationship with his mother and father. The child has spent no time with the father over the past 18 months or so but it is not in dispute that the father loves the child and the child has a good relationship with his father.
The child suffers from a serious medical condition, moderate obstructive sleep apnea. The court is concerned that the father underplays the seriousness of that condition.
The father needs to show that he takes the matter seriously and that he needs to demonstrate that to the mother. The court considers that the mother is, to some extent, justified in her anxiety about the child in the father’s care. Nevertheless, any risk to the child from the father’s scepticism or ignorance about this condition can be reduced to an acceptable level. The court proposes to make orders that the father is to consult, at his expense, the child’s treating paediatrician in order to fully inform himself about the child’s condition. He is to undertake training to familiarise himself with the operation of the child’s CPAP machine and to provide confirmation to the mother that he has done so.
Conclusion: The court orders that the father shall consult the child’s treating pediatrician or other treating medical practitioners in relation to the child’s condition of sleep apnoea and so inform himself of the nature and severity of the condition and requirements for the appropriate treatment and management of the condition.
The father shall supply written evidence to the mother that he has complied with such before the child spends any overnight time with him.