Aikendorf and Pilau

FAMILY COURT OF AUSTRALIA

AIKENDORF & PILAU

[2016] FamCA 683

FAMILY LAW – CHILDREN – interim orders – where the continued supervision of the father’s time with the child is in dispute – where the child suffers Autism – where the father’s mental health is a consideration – where it is the mother’s position that the father poses an unacceptable risk to the child – where the Court does not consider the father presents as a risk – where supervision is to continue for six visits and thereafter the father will spend unsupervised time with the child.

Family Law Act 1975 (Cth) s 60B, 60CA, 60CC, 61DA, 65DAA

MRR v GR (2010) 240 CLR 461

APPLICANT:

Ms Aikendorf

RESPONDENT:

Mr Pilau

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of SA

FILE NUMBER:

ADC

1507

2015

DATE DELIVERED:

19 August 2016

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

2 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Lewis

SOLICITOR FOR THE APPLICANT:

Cardone & Associates

COUNSEL FOR THE RESPONDENT:

Mr McGinn

SOLICITOR FOR THE RESPONDENT:

Andersons Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Lee

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of SA

Orders

That orders made 22 December 2015 be discharged.
That the parties have shared parental responsibility for B (otherwise known as B Aikendorf-Pilau) born … 2013 (“the child”).
That in respect of health issues affecting the child, the mother will advise the father of same and provide her views about any major issues affecting the child’s health and shall consult with the father about such issues in a genuine effort to come to a joint decision, but if no agreement is reached between them THEN the mother shall make the final decision and advise the father of that decision.
That the child live with the mother.
That the father forthwith consult with the child’s paediatrician, speech pathologist, occupational therapist and any other health professional currently engaged with the care and management of the child as may be nominated by the mother for the express purpose of the father gaining an understanding (if necessary) of the child’s needs, developmental and management issues and strategies.
That the father spend time with the child supervised by Mr C, psychologist, for six (6) periods on a weekly basis and for not more than two (2) hours duration or as may be reasonably directed by Mr C who shall provide a brief observational report.
Providing that Mr C does not report a critical incident, the father shall spend time with the child as follows:-
(a)On six (6) occasions each Saturday from 9 am to 4 pm (including travelling time) to the father’s parent’s home upon condition that either of the paternal grandparents or the paternal uncle shall be generally at the premises, but not required to physically supervised the father’s time with the child;
(b)Thereafter, each Saturday from 9 am to 4 pm or as may be agreed between the parties.
For the purposes of handover, the father initially in the presence of his supervisor or either of the paternal grandparents or the paternal uncle, shall collect the said child from the mother’s home at the commencement of time and the mother or the maternal grandparents shall collect the child from the home of the paternal grandparents at the conclusion of such time PROVIDED THAT supervision is not required if order 7(b) shall come into operation.
Without admission, the father do continue to attend upon his treating medical practitioners and follow all of their reasonable directions and should there be a termination of the professional relationship between the father and Dr D, the father shall advise the mother of same within fourteen (14) days of the termination of his instructions.
That the parties utilise a communication book to advise each other of issues only in relation to the child.
That the mother is to provide information to the father of any illness suffered by the child that requires the mother to seek medical treatment and the details of the child’s diagnosis, treatment and prognosis as soon as practicable after attendance upon the doctor and shall authorise any health professional engaged with the care of the child to provide information to the father as may be requested PROVIDED THAT any cost incurred shall be his responsibility.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Aikendorf & Pilau has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1507 of 2015

Ms Aikendorf

Applicant

And

Mr Pilau

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

By order of Judge Cole of the Federal Circuit Court, B (otherwise known as B Aikendorf-Pilau) born in 2013 (“the child”) lives with Ms Aikendorf (“the mother”) and spends time with Mr Pilau (“the father”) supervised by the paternal grandmother and/or the paternal uncle at the home of the paternal grandparents at Suburb E as follows:-
a)On Christmas Eve from 9 am to 1 pm;
b)Each Saturday from 9 am to 1 pm (including travelling time to the father’s parents’ home); and
c)For the purpose of handovers, the father in the presence of her supervisor or his supervisor collect the said child from the mother’s home at the commencement of time and the mother or her parents to collect the said child at the conclusion of such time.
It was further ordered that without admission, the father is to continue to attend upon his treating medical practitioners and follow their reasonable directions, the parties are to utilise a communication book and the mother is to provide the father with information in respect of childcare, future schooling arrangements and any illness suffered by the child that requires medical treatment.
The proceedings were transferred to the Family Court of Australia based upon the perceived complexity of the proceedings both as to the length of trial and the number of professional witnesses likely to be called.
On 6 May 2016, the mother filed an Application in a Case seeking orders that the father’s time with the child be supervised by an independent person and not related to either of the parties, that there be an addendum family assessment report undertaken by Ms F, family consultant and that paragraph 2 of the orders made 22 December 2015 be suspended.
The father relies upon an Amended Application in a Case which seeks to alter paragraph 2 of the orders of 22 December 2015 by removing the requirement and condition of supervision and extending the time that the child would spend with him from 9 am to 5 pm.
In the alternative, the father seeks that his time with the child resume in accordance with the existing orders.

BACKGROUND TO THE CURRENT APPLICATION

The mother considers that the child has a diagnosis of Autism and Sensory Processing Disorder. He is assisted by a number of health professionals, in particular paediatric involvement to assist and diagnose the extent of his autism, an occupational therapist and a speech therapist to assist with receptive language delay and expressive language delay. The mother attributes significant behavioural difficulties to the child’s presentation as a necessary corollary of the child’s health and behavioural difficulties. The mother presents a history of the child rocking back and forth on occasions, flapping his arms and at times biting himself and hitting his head with his hands. It was the mother’s observation that the symptoms had become more frequent and severe.
There are a range of health professionals that are integrally involved in assessing the child and assisting with his concerning behaviours.
The mother’s advice from the occupational therapist is that a diagnosis of Sensory Processing Disorder can result in the child becoming distressed when there is a change of routine, loud noises, crowded settings or other unfamiliar situations.
The result is that the child can act in a negative or defiant fashion and become “unregulated” or “dysregulated”. There is significant focus by the mother on the occasions and the extent to which the child’s presentation and behaviour is unregulated.
The mother has clearly adopted the advice that she has received and seeks to provide what she considers to be a regulated and certain environment for the child so that he does not feel anxious and “assaulted” by sensory input.
By her own admission the mother keeps a strict routine.
The mother is highly critical of the father’s engagement with the child and she asserts that since the orders of 22 December 2015 the child has become increasingly more unregulated. His episodes are more frequent and more extreme in terms of his coping behaviour. The mother is vigilant in respect of the child’s conduct and behaviour and in particular in terms of any circumstance that may trigger unregulated behaviour.
A central feature of the child’s management is the use of a Picture Exchange Communication System (PECS board) which identifies and provides future notice to the child of the tasks and activities that are likely to be undertaken during the day. The mother considers that the use of a PECS board is essential in terms of minimising the child’s anxiety and thereby reducing his descent into unregulated behaviour. There are many other activities and strategies used by the mother to calm the child down if it appears to her that he is becoming anxious.
It is her contention that since the child has spent time with the father his behaviour has worsened and she considers “that he is suffering from emotional and physical harm in spending time with the father if arrangements are not urgently made to cease his deregulated behaviour”.
The mother has strong support from members of her family and the maternal grandparents have a significant involvement in the current application.
The mother concedes that between January and March 2016, whilst the child would return from his time with the father tired, he did not present with behaviour that had any long-term consequences. The mother asserts that she was able to return the child to his “normal self” within a day or two of his return to her care. The same could not be said of the child’s presentation after March 2016. The mother observed the child to be anxious, unregulated and exhibiting regressed behaviour. Unlike earlier occasions, the mother was not able to easily calm or moderate the child’s behaviour upon his return to her care.
The parties engage in extensive communication via the communication book which seeks to detail minute aspects of the child’s conduct, behaviour and reaction when in the care of each of the parties, but in particular the father.
The paternal grandmother has a significant role in the communication between the parties and appears to undertake and engage in the majority of communication on behalf of the mother.
The father considers that he has been marginalised in respect of the management of the child. He has concerns as to the extent of therapeutic intervention that the mother has arranged and whilst he agrees that the child does show some symptoms of Sensory Processing Disorder and Autism Spectrum Disorder, it is not such that he is unable to deal with the resultant behaviour and conduct. Specifically, the father does not accept that the child has unregulated behaviour in his care and presents that the child is less affected than as observed by the mother.
In clear distinction to the considerations of the mother that the child becomes easily anxious and then unregulated if there is an unexpected change in his environment or if he meets people who are unfamiliar to him, the father considers that the child has easily coped with his family and has not become distressed when meeting new people. Any behaviour that has an appearance of anxiety is explained by the child’s age and not necessarily only as a result of a diagnosis of Attention Spectrum Disorder and Sensory Processing Disorder.
In any event, the father asserts that he has followed certain therapeutic techniques and that they are incorporated into his play with the child, in particular limiting the amount of people with whom the child interacts and developing a routine of activities that has as its pre-cursor a text board.
The parties have attempted co-parenting counselling and have been assisted by Ms G, psychologist. The parties had three sessions, but the process of mediation and discussion is unlikely to assist the parties.
The parties are in significant conflict. The mother remains mistrustful of the father and his ability to take the child’s needs seriously. The father considers that he is easily able to understand the needs of the child and it is not his experience that whilst in his care the child has become unregulated, or that when exhibiting self-stimulating behaviour it is anything other than temporary and minor. The father considers that these behaviours are able to be dealt with and “are a part of [the child’s] personality” and a continual reality of spending time with him. There is significant conflict between the parties at almost every level of the child’s medical condition, presentation and management. It is unlikely that any position adopted by either of the parties will be easily and readily accepted by the other. Their mutual mistrust has the clear potential to impact adversely on the child’s presentation and development.

23 April 2016

The child was delivered to the home of the paternal grandparents pursuant to the orders of 22 December 2015.
The maternal grandmother received information from the father that the child’s uncle would be supervising the father’s time with the child and that there would be no other children present.
The maternal grandmother delivered the child to the home of the paternal grandparents and observed that the paternal uncle was at the premises and that there appeared to be no other children or adults at the handover.
Whilst there is some confusion as to the subsequent events, it appears that the maternal grandmother received information that the child and father had been observed in the front yard of the home and without supervision. The maternal grandmother and grandfather became alarmed at the possibility that the child may have been in the unsupervised care of the father and returned to the home of the paternal grandmother.
Upon arrival, it was their observation that the child was with the father in the front yard. The paternal uncle and his son then appeared from the rear of the house. The father was challenged by the maternal grandfather and according to his affidavit and that of the maternal grandmother filed 6 May 2016, the father “went into an uncontrollable rage, screaming loudly ‘no way, you’re not taking him’”.
There was then an altercation which involved some pushing and shoving between the father and the maternal grandfather who by this time had picked up the child. He was removed from the premises and has remained in the mother’s care.
Notwithstanding that the mother was not present, she relays her understanding of what took place in her affidavit of 6 May 2016.
Not surprisingly given the context of this matter, the father denies that the child was at any stage unsupervised.
In his affidavit filed 11 May 2016 in support of the Application in a Case of the same date, the father sets out the events of that day and proposed to the child that they go outside to feed chickens. Later in the morning the child wanted to go outside again and the father and the child walked in the front yard pulling a wooden trailer. The father considered that his time with the child was supervised by the paternal uncle who was at the front door of the house. Later in the morning the child’s cousins arrived and the children played happily together. It was the father’s observation that the child was having fun kicking a soccer ball with his cousins and then the focus turned to playing with a billy cart. After lunch the father says that the cousins commenced to play in the front yard with the father and the paternal uncle watching from the top of the driveway. It was at this time that the paternal grandfather arrived and alleged that the father and the child had been seen in the front yard without supervision and accordingly he was taking the child. It was an unpleasant interaction between the adults and whilst the father denies that any language used could be considered an obscenity, it is likely that the language between the father and the maternal grandfather was heated.
The child was not provided to the father pursuant to the orders which was then the catalyst for his application seeking a re-instatement of his time, or in the alternative, that his time be extended and the need and necessity for supervision removed.
His application was also supported by the affidavits of the paternal grandparents who provide consistent observations of what they considered to be a close, affectionate and beneficial relationship between the father and the child.
Not unlike the maternal grandparents and their support of the mother, the paternal grandparents are highly supportive of the father.
It is a feature of this matter that the litigation has been seized upon by the parties with great energy. It is unfortunate that the matter having commenced on 4 May 2015 is reflected by 76 documents having been filed.
The affidavit material is voluminous and the parties appear intent on the vociferous pursuit and response to even the most minor detail. The concern is that the litigation does not so overwhelm the parties that they lose sight of what is in the best interests of their child.
Following the events of 23 April 2016, the mother’s solicitor forwarded a proposal to the father’s solicitor by letter dated 5 May 2016 which proposed that the father spend time with the child each week for 2 ½ hours to be supervised by an independent person.
Agreement was ultimately reached that the child would spend time with the father between 9 am and 11.30 am each Saturday at the home of the paternal grandparents supervised by Mr C, psychologist.
It is integral to the agreement that Mr C was to prepare observational reports.
The father’s time with the child has resumed under the supervision of Mr C.
The mother denies the assertion of the father that she does not want to support his relationship with the child. The mother summarises her position at paragraph 70 – 71 of her affidavit filed 26 May 2016:-
70… My primary concern is [the child’s] welfare. I have given the father significant amounts of information to assist him to regulate [the child’s] behaviour, however it is increasing in severity and is now impacting [the child] for a number of days following [the child] spending time with the father.
71 I am extremely concerned about the long term consequences of [the child] being unregulated for so long. I am further concerned that the father’s view that I do not support his relationship with [the child] is impacting his ability to communicate with me about [the child’s] activities, structure, routine and any observations the father makes when [the child] is spending time with him. This ultimately affects [the child] as I have to keep guessing what could be causing him to be so unregulated and making suggestions to regulate him.

Father’s mental health

The current state of the father’s mental health is a significant issue in the proceedings that is at least in part relied upon by the mother to resist the father’s application to spend unsupervised time with the child.

The father admits that since 2004 he has suffered from depression and anxiety. He has been in constant contact and consultation with his psychiatrist Dr D. He has been taking medication as prescribed by his psychiatrist and continues to consult with him on a monthly basis. There was a hiatus in his appointments with Dr D from about September 2013 until early May 2015. During this period the father consulted with a number of other psychiatrists and psychologists including a counsellor specialising in anger management.
Whilst the father considered that much of his presentation may have its genesis in relationship difficulties between the parties, for her part the mother sets out a long and detailed history of what she describes as “the father’s ongoing difficulties in managing his serious mental health problems”. She considers that the father may well be “bi polar”, paranoid and displaying signs of a “borderline personality disorder”.
She considers that towards the end of their relationship the father’s psychiatric episodes (highlighted by an episode in January 2014 which involved the Assessment and Crisis Intervention Service) resulted in her being fearful for her safety and that of the child. In short, unsupervised time represents an unacceptable risk to the child.
Dr D has clearly had an extensive involvement with the father and has prepared reports dated 10 June 2015, 10 August 2015 and more recently 3 June 2016.
The first report confirmed that Dr D first reviewed the father in September 2004 following a referral from his general practitioner. Thereafter the involvement with Dr D has been extensive. At first review he noted that the father presented with depressive and paranoid ideation.
The father apparently gave a detailed history to Dr D and reported as having difficulty coming to terms with his sexuality. He was critical of his own high standards and from age 15 had used marijuana, alcohol and other drugs as a form of self-medication.
In October 2004 he fell out of a motor vehicle while paranoid and after using alcohol and marijuana. He gave a long history consistent with an unhappy relationship with the mother. The level of dysfunction appears to have been confirmed in a joint consultation between Dr D and the parties in 2013 prior to the birth of the child.
The father’s mental health had been a constant point of contention between the parties. The father considered that the mother’s continuing focus on his mental health led up to the assault on 23 September 2015.
The diagnosis of the father was likely to be consistent with a Schizoaffective Disorder in remission with no current psychotic ideation together with an Adjustment Disorder with mixed emotional features.
It was also consistent with a major depression with psychotic features in remission, social phobia and self-critical personality traits.
There was a relapse of the depressive symptoms in February 2014 and then in April 2014. A return to treatment was considered by Dr D to have had the beneficial effect of stabilizing his condition.
Whilst he had previously suffered from early psychosis, that condition had been in remission now for a number of years.
The Court ordered that each of the parties undergo independent psychiatric assessment. Dr H, psychiatrist, was instructed to undertake the individual psychiatric assessments. His report in respect of the father is dated 9 September 2015.
Dr H considered that the father was likely suffering from Schizoaffective Disorder which was at the date of the report well controlled with the current treatment regime consisting of an anti-psychotic agent by way of medication.
Dr H considered that Dr D would be best placed to provide an appropriate opinion as to the ability of the father to function in a parenting role.
He noted that the father had a number of unhelpful personality traits, but did consider that the father was easily overwhelmed by the circumstances in which he found himself, but also that he and the mother had a “pathological and counter-productive relationship and this probably made his symptoms worse”.
Given the period of time that the father had been consulting Dr D, Dr H considered that the Schizoaffective Disorder was now likely to be chronic although well controlled. Whilst the condition may fluctuate at times and there may even be psychotic symptoms such as paranoid delusions, it was reasonable to assume that they would be well controlled and not “particularly troublesome”.
Dr H generally concurred with other medical practitioners that had been involved with and had commented on the father’s mental health presentation, that there was no evidence of depression or of paranoid symptoms and that following some professionally supervised time it would be reasonable for the father’s time thereafter to be unsupervised.
Dr H diagnosed the mother as suffering from a permanent Depressive Disorder and a generalised Anxiety Disorder, but both conditions are in remission. Her prognosis was favourable and was likely to fully resolve. Her mental health issues do not impact upon her ability to parent the child.
The most recent report of Dr D was requested by letter dated 11 May 2016. It was based upon the father’s application to the Family Court and had as its catalyst the incident of 23 April 2016. Dr D was provided with an up to date history by the father, in particular acknowledging that he had pleaded guilty to a charge of aggravated assault in December 2015. He has continued with his employment and there is no restriction on his ability to supervise and manage.
The aggravated assault was reported to his professional association and after consideration his registration enabling him to work was granted in December 2015.
Dr D reported that he had been seeing the father on a two weekly basis since August 2015 and that there had been “no episodes of depression, unusual thinking, no substance abuse, no problems with sleep”. The medication regime had remained unchanged and the doctor considered it important that this had occurred against the backdrop of potentially significant stressful events including the present litigation.
Whilst Dr D was not able to provide an opinion as to the father’s parenting abilities, the absence of any incident or adverse behaviour in terms of his employment with the public service, or in respect of the current proceedings, confirm his opinion which is that there are no issues relating to his mental health which would suggest the need for supervision.
The mother does not accept the current psychiatric opinion.

The father’s supervised time

It is not controversial that other than the evidentiary dispute as to the events of 23 April 2016, the father’s time with the child has been supervised.
There are extensive observational reports of the father’s contact with the child at the children’s contact service. There appears to be no issue taken that the father’s time progressed under the supervision of the children’s contact service without incident and with evidence of a close relationship.
There was however more formality to the father’s supervised time with the child as contained in the observational report of Mr C, psychologist.
Mr C appears to have supervised the father’s time on 28 May 2016, 4 June 2016, 2 July 2016 and 12 July 2016. There may have been other supervised visits.
The common observation of Mr C was that there were no critical incidents observed.
The clear focus of Mr C was not necessarily as to safety issues but rather to observe whether the child’s unregulated behaviour was reduced following the sessions. There was also a focus on whether the child’s behaviour may have deteriorated upon return to the mother’s care.
Mr C was also under close scrutiny. By letter dated 5 July 2016 he was asked whether he observed any display of unregulated behaviour by the child following the time that the child spent with his father on Saturday 28 May 2016. That initial request was also followed up by subsequent correspondence of 11 July 2016.
Mr C responded by letter of 12 July 2016 confirming that he did observe the child to “display precursors to unregulated behaviour (rocking back and forth in his high chair) during the time that he spent at [the mother’s] home” on Saturday 28 May 2016. He also observed some unregulated behaviour at the mother’s home on 2 July 2016.

The child’s presentation

There has been substantial focus on assisting the child’s development. In particular, the child has attended weekly occupational therapy and speech pathology at I Child Development since February 2016. There were a number of areas of development delays that were noted, in particular:-
·Receptive and expressive language
·Self-care
·Sensory processing
·Play
·Social Development
·Self-regulation
·Fine motor skills
·Gross motor skills
It appears that his inability to tolerate or gain a level of independence in relation to his routine and environment suggest a diagnosis of a child with Autism Spectrum Disorder.
In therapy sessions in April 2016, the child was observed to demonstrate the following:-
·    Increased difficulty in entering therapy rooms
·    Difficulty in engaging in activities and with therapists
·    Reduced verbal communication
·    Inconsistent ability to follow verbal/visual instructions
·    Increased squealing, crying and lying on the floor
·    Reduced eye contact
Importantly, the father was invited to engage with the therapists and there has been a crossflow of information at least as at May 2016 which would assist the father with information regarding dysregulation, the child’s behaviour when happy, dysregulated and very dysregulated as well as triggers for his behaviour and coping strategies.
The recommended management plans appear to be well understood both when the child is happy (and his behaviour that would suggest that he is happy) and his behaviours that may indicate he is likely to become dysregulated or very dysregulated.
The following recommendations of the speech pathologist and the occupational therapist as appear in their report forming annexure “TA12” to the mother’s affidavit filed 26 May 2016 are clearly relevant:-
It is important to note that new triggers may emerge at any time. [The child] has been observed to demonstrate complex behaviours that may make it difficult to determine what has triggered the dysregulation. [The child] has the ability to appear as though he is coping well in some situations and then may become dysregulated once he has left that situation. Due to the delayed onset of dysregulated behaviours it may be difficult to identify what has triggered the behaviour and how best to support [the child].
Change is often an unavoidable part of everyday life and coping with change is an important skill for a child to master. Due to [the child’s] young age it is important to teach his carers strategies to assist him in coping with change and as he develops teach him strategies to assist him to self-regulate and increase his independence. [The child’s] triggers may change over time and therefore the strategies used to support his regulation may also change. It is therefore important to identify what is difficult for [the child] to support him appropriately.
Strategies that have demonstrated to improve his regulation have included increasing structures and routine in his environment. When provided with significant structure and routine during therapy sessions, [the child] has demonstrated improved regulation, verbal communication, eye contact, engagement in activities and the ability to tolerate change. He has benefited from the consistency and structure of a weekly routine and is also reported to have improved behaviour when structure and routine is consistently implemented within the home environment.

Family consultant

The Court has the advantage of a report prepared by Ms F, psychologist, dated 13 July 2016.
The family consultant accurately records the parenting arrangements noting that the father’s time was currently supervised by Mr C, but that the father was keen for his time to be increased and without supervision.
The focus of the mother’s concerns was upon the father’s mental health. I suspect however that there is now a further focus on the ability of the child to cope with the proposed parenting arrangements given his propensity for unregulated behaviour.
The mother reported that since February 2016 when the child commenced speech and occupational therapy, there has been improvement in his behaviour and regulation.
Each of the parties had a different view or observation of the child’s development. Whilst accepting that there had been improvement, the mother emphasised that it was not to be considered within a normal range, but representative of an improvement for the child.
The father was generally more upbeat. He considered that the child was developing “quite naturally”, whilst observing that there were “peaks and troughs” and not having witnessed any severe emotional dysregulation, the father considered that the child was developing and with him was settled and happy in his care. A point of contention between the parties was the ability of the child to interact with groups of people.
The family consultant observed the child with each of his parents. Whilst the father was appropriate and engaged, the child nonetheless presented as unsettled and anxious. This was in contrast to the observations of the child with the mother on the following day where he was observed to be “more settled in focus and activity, spontaneously more verbal and clearer in speech, with less echolalia”.
Whilst the mother remained mistrustful of the current state of the father’s mental health and with the reliability of the report of Dr D, she did concede that since the involvement of Mr C there had been a significant improvement in the extent of communication passing between the parties following the child’s time with the father.
She accepted that the father appears to have adopted some of the relevant management strategies such as using the PECS board to structure the day and thereby avoid over-stimulation.
The family consultant recommended that the father meet with the child’s health professionals and in particular the director of I Children’s Development to learn directly how he might support the child and thereby avoid any unnecessary upset to the child causing dysregulation.
It would also be important for the father to speak to the child’s paediatrician and to receive direct feedback.
There was an advantage in the current supervision by Mr C continuing in order to provide feedback.

PRINCIPLES RELEVANT TO PARENTING ORDERS

Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The best interests of the child are met by the application of the objects of s 60B(1).
I am cognisant of the primary considerations and the additional considerations in respect of the matters as set out in s 60CC(2) and (3) in order to determine what is in the best interests of the child.
In particular, I am mindful of the directions contained in s 60CC(2A) and have regard to the allegations of the mother that whilst together the father was the perpetrator of family violence.
Section 65DAA(1) provides:-
Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Section 65DAA(2) provides:-
Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
I am required to bring to account the provisions of s 65DAA(3) as part of my consideration of the appropriate orders that are to be made.
I am also obliged to consider that in circumstances where I make an order for equal shared parental responsibility, whether the proposals of each of the parties are reasonably practicable for the purposes of s 65DAA(2)(d). The Act provides assistance in the determination of “reasonable practicality”.
Accordingly, I propose to adopt the following approach:-
(1)Give consideration to the proposals put forward by each of the parties as they were identified and presented to the Court;
(2)Have regard to the objects expressed in s 60B(1) and the underlying principles in s 60B(2);
(3)Have regard to the provisions of s 60CC in order to determine in each case what is in the child’s best interests;
(4)Have regard to the primary considerations under s 60CC(2) namely, the benefit of the child having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm;
(5)Have regard to additional considerations under s 60CC(3);
(6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and (3) are to be considered and if more weight is to be given to one or more of the matters then this must be the subject of delineation and comment.
Section 61DA requires the Court to consider whether to apply the presumptions of equal shared parental responsibility by having regard to whether the matters as set out in s 61DA (if relevant) could rebut the presumption.
If the presumption is rebutted the Court can proceed to make parenting orders having regard to the provisions of the Act but based on findings pursuant to s 60CC. If the presumption applies (and in any event the parties seek an order of equal shared parental responsibility) and it is not rebutted, then s 65DAA requires the Court to consider whether there should be an order for equal time. If not, then substantial and significant time. The test is whether the orders would be in the best interests of the child and reasonably practical. As was said in MRR v GR (2010) 240 CLR 461, the consideration of whether equal time is feasible “requires a practical assessment”.
Section 60CC(2)(b) requires the Court to consider as a primary consideration:-
the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The mother is alleging that the father presents a risk to the child arising from his poor mental health. That was clearly the basis upon which supervision was put in place. Issues relating to the child’s dysregulated behaviour have arisen for more recently and in particular following the incident on 23 April 2016.

PARENTAL RESPONSIBILITY

The parties are highly mistrustful of each other and are unlikely to agree as to the child’s ongoing health management plan and needs.
Whilst the father may consider that the mother’s conduct borders on hyper-vigilance, nonetheless the child’s needs are not helped by disagreement and disharmony. Whilst there have been no submissions made in respect of parental responsibility, I do not consider it appropriate that there should be an order of equal shared parental responsibility at this time.

That does not mean that the father should not play an active and involved role in the child’s care, but rather, the child’s ongoing management and development must be free of conflict and disagreement.
Even on the orders sought by the father, the child will live primarily with the mother and it is reasonable that she retain some confidence in her ability to put in place whatever may be required to best suit the child’s needs.

SUPERVISION

There is no dispute between the parties that it is in the best interests of the child to maintain a meaningful relationship with the father.
It is the risk as perceived by the mother which initially supported supervision.
There is considerable evidence before the Court as to the state of the father’s mental health. Notwithstanding the mother’s scepticism, there is an unusually significant body of psychiatric information pertaining to the father that assists the Court.
If the psychiatric evidence was limited to an assessment confined to a snapshot in time, I would have more hesitation as to the current state of the father’s mental health than is the case where Dr D (and others) have had the care of the father since 2004. He continues to see Dr D on a fortnightly basis.
Moreover, Dr H considers that it is proper to defer to the opinion of Dr D. It would seem a sensible focus given the long and extensive involvement of the father and his treating psychiatrist.
I am not of the view that the father’s mental health is in and of itself a basis to maintain long term and ongoing supervision.
The father holds down a responsible position within the public service and has the confidence of his employer in terms of supervision.
There does not appear to have been any unnecessary or adverse episode save and except the incident at his parents’ home on 23 April 2016.
I am not able to make a clear determination of exactly what happened on that day. It may well be the case that it is unnecessary to do so. Even on the most pessimistic view of the observations of the maternal grandparents namely that the father appeared to have his time unsupervised with the child in the front garden, the observation was benign. There was no adverse conduct or behaviour by the father towards the child and whilst there may not have been anybody physically present, it could not be said that the father was alone with the child at the home of his parents.
The father asserts that there was a supervisor who was observing his time with the child in the front garden of the home.
The matter could have been dealt with in a less inflammatory fashion. On hearing the assertion of the father that his time with the child was supervised, it would have been possible for him to have been reminded of the obligation under the order either at that point or subsequently.
In the absence of the child being adversely affected, or of any potential for harm, the actions of the maternal grandparents appear to have been unnecessarily precipitous.
Seen against the background of all that has occurred since that date, the parties could easily have adopted a more conciliatory approach with a better delineation of each of the parties’ reasonable expectations based upon the orders.
Whilst a matter of dispute, in a general sense the father’s time with the child had been progressing in an orderly fashion since 22 December 2015. Demonstrably that came to an end as of 23 April 2016.
I do not consider that the father’s time should be supervised either in respect of mental health issues or anything arising from the assertion that the father failed to have his time supervised on 23 April 2016.
The focus must clearly be upon the best interests of the child.
The needs of the child are well understood and have been documented in various reports. Moreover, the father is able to speak with the health professionals and to understand clearly what is required to ensure that the child’s special needs are appropriately considered and catered for. Whilst the father may consider that the mother is hypervigilant, nonetheless it appears that her ability to calm the child and to recognise the subtle changes that he may exhibit is superior to his.
In some respects the father may well have to defer to the mother’s better judgement. To some extent the acceptance by the mother of dramatically improved communication between the parties may well be a pleasing development.
I bring to account the views of the family consultant, but also acknowledge that the suggestion of ongoing professional supervision is difficult and is not without considerable expense. Whilst that should not be the determining factor, it does require focus on whether and if so to what extent supervision should be required.
I do not consider that the father presents as a risk to the child.
It is however important that before the father’s time with the child should be unsupervised, he should obtain all relevant information as to the appropriate management strategies that he needs to become familiar with and to adopt that will directly benefit the child.
I propose to require the father to consult with the child’s occupational and speech pathologists and the child’s paediatrician, that his time with the child will be supervised for a further six visits with Mr C and if there are not observed to be any critical incidents, the father’s time will thereafter be unsupervised provided that for a further six visits his time is taken at the home of the paternal grandparents, with either of the paternal grandparents or the paternal uncle to be at the premises, but without the requirement to be physically present with the father. The child will be three years of age in October 2016. It does not seem unreasonable that after the requirement of supervision by Mr C has come to an end, that time to be extended from 9 am to 4 pm each Saturday.
The father shall collect the child from the mother’s home at the commencement of his time in the presence of his supervisor whilst his time is the subject of supervision by either Mr C or taken at his parents’ home, but thereafter he shall attend personally with the mother or her parents to collect the child at the conclusion of the father’s time from the home of the paternal grandparents.

CONCLUSION

I make orders as appear at the commencement of these reasons.

I certify that the preceding one hundred and thirty four (134) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 19 August 2016.

Associate:

Date: 19 August 2016

[2016] FamCA 683

19 August 2016

Key Legal Topics

Areas of Law

Family Law