Battista & Battista (No 2)
[2024] FedCFamC2F 268
•1 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Battista & Battista (No 2) [2024] FedCFamC2F 268
File number(s): PAC 3262 of 2021 Judgment of: JUDGE OBRADOVIC Date of judgment: 1 March 2024 Catchwords: FAMILY LAW – PARENTING – Young child with autism and global developmental delay – Final orders made by consent earlier for equal shared parental responsibility – Antagonistic parental communication – Very different parental views on child’s capacity to cope with change – Parental insight – What time child is to spend with father – Proposed orders by both applicant and respondent not in child’s best interest – Time to increase incrementally over a period Legislation: Family Law Act 1975 (Cth) Cases cited: Banks & Banks [2015] FamCAFC 36
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GR [2010] HCA 4
Slater & Light [2011] FamCAFC 1
Division: Division 2 Family Law Number of paragraphs: 117 Date of last submission/s: 20 February 2024 Date of hearing: 8-9 February 2024 Place: Parramatta Counsel for the Applicant: Mr Dura SC Solicitor for the Applicant: A B Mezzanotte Lawyers Counsel for the Respondent: Ms Petrie Solicitor for the Respondent: Urania Zafiris Solicitor ORDERS
PAC 3262 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BATTISTA
Applicant
AND: MS BATTISTA
Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
1 MARCH 2024
THE COURT ORDERS THAT:
1.X born in 2020 shall spend time with the Applicant (“Father”) as follows:
(a)At all times as agreed by the parents in writing; and
(b)Until 12 June 2024 in a two week alternating cycle:
(i)Week 1: From 9am to 5pm on Thursday;
(ii)Week 2: From 9am to 5pm on Thursday and from 8am on Saturday to 3pm on Sunday.
(c)From 13 June 2024 and until 9 April 2025 in a two week alternating cycle:
(i)Week 1: From 9am to 5pm on Thursday;
(ii)Week 2: From 5pm on Friday until 3pm on Sunday.
(d)From 10 April 2025 and until X commences school (kindergarten):
(i)Week 1: From 9am to 5pm on Thursday;
(ii)Week 2: From 5pm on Thursday until 3pm on Sunday.
(e)Once X commences school and during his first year of schooling (kindergarten):
(i)Commencing on the second Thursday of term 1 and each alternate week thereafter, from 3pm or after school on Thursday to 5pm on Sunday.
(f)From the commencement of X’s second year of schooling (year 1) and thereafter:
(i)During school term:
A.Commencing on the second Thursday of each school term, from 3pm or after school on Thursday to 5pm on Sunday;
(ii)During school holidays at the end of term 1, 2 and 3:
A.As agreed by the parties, but failing agreement for 5 consecutive nights from 9am on the first Monday of the school holidays until 9am on the middle Saturday of the school holidays; and
(iii)During school holidays at the end of term 4:
A.As agreed by the parties in writing, but failing agreement for 7 consecutive nights from 9am on 2 January to 9am on 9 January each year.
(g)Notwithstanding any other order, during Easter (on days as celebrated in the Roman Catholic faith):
(i)Commencing in 2025 and each odd numbered year thereafter from 3pm on the Thursday immediately before Good Friday and until 8am on Easter Saturday; and
(ii)Commencing in 2026 and each even numbered year thereafter from 8am on Easter Saturday until 9am on Easter Monday.
2.Notwithstanding any other order, X spend time with the Respondent (“Mother”) during Easter (on days as celebrated in the Roman Catholic faith):
(a)Commencing in 2025 and in each odd numbered year thereafter from 8am on Easter Saturday until 9am on Easter Monday; and
(b)Commencing in 2026 and in each even numbered year thereafter from 3pm on the Thursday immediately before Good Friday and until 8am on Easter Saturday.
3.Notwithstanding any other order, X spend time with the Mother from after school on Friday to 5pm on Sunday during Easter on days as celebrated in the Orthodox faith. If Roman Catholic Easter and Orthodox Easter fall on the same days, then orders 1(g) and 2 above will prevail.
4.X have communication via telephone or video call such as via Zoom or FaceTime with each of the parties as agreed to by the parents in writing or failing agreement:
(a)With the Father when he is not spending time with him on that day, each Thursday between 6pm and 6.30pm; and
(b)With the Mother when he is not spending time with her on that day, each Saturday between 6pm and 6.30pm.
THE COURT ORDERS BY CONSENT THAT:
5.Notwithstanding any other order, X shall spend time with the Mother as follows:
(a)Each year (being the Mother’s name day) if he is not otherwise in her care from immediately after school until 5.00 p.m. on a school day and from 8.00 a.m. to 5.00 p.m. if the day does not fall on a school day.
(b)Each year (being X’s name day) if he is not otherwise in the Mother’s care from immediately after school until 5.00 p.m. on a school day and from 8.00 a.m. to 5.00 p.m. if the day does not fall on a school day.
6.Each of the parties shall be authorised to travel with X outside the Commonwealth of Australia during any period that X is in their care pursuant to these Orders, or such other period time as may be agreed between the parties in writing, provided that:
(a)The travelling party provides not less than 60 days prior written notice of the intention to travel including the intended destination, dates of proposed travel, itinerary that identifies the return date and the particulars of where the travelling party and X will be residing during their travel including the address and contact details;
(b)The destination is a signatory to the Hague Convention; and
(c)The travelling party will facilitate X communicating with the other party via FaceTime or other visual electronic means not less frequently than every second day while X is travelling.
7.In the event that the Father is to travel with X in accordance with these orders, the Mother shall provide X’s passport to the Father not later than 7 days prior to the Father’s date of departure and the Father shall return X’s passport to the Mother when X is returned to the Mother upon the Father’s return from his overseas travel.
NOTATION:
A.The Court notes the orders made by consent and on a final basis on 20 September 2023 as follows:
a.The Mother and the Father have equal shared parental responsibility for the child of the marriage, X born in 2020 (“X”).
b.The parties are required to make all decisions about major long-term issues in relation to X jointly.
c.The parents shall each have responsibility for the day-to-day decisions in relation to the care of X during the periods that X in his/her care respectively.
d.X live with the Mother at all times other than when he is spending time with the Father in accordance with the Orders.
e.Notwithstanding the above Orders, X shall spend time with the Father as follows:
i.On X’s birthday if he is not otherwise in the care of the Father from immediately after preschool or school until 6pm on a preschool or school day.
ii.On the Father’s birthday if X is not otherwise spending time with the Father from immediately after preschool or school until 6pm on a school day.
iii.On Fathers’ Day if X is not otherwise spending time with the Father from 5pm on the Saturday before to 5pm on that day.
iv.That X spend time with the Father from:
1.3pm on Christmas Eve to 12pm on Christmas Day in odd numbered years;
2.12pm Christmas Day to 3pm Boxing Day in even numbered years.
v.That X spend time with the Father from:
1.3pm New Years Eve to 12pm New Years Day in even numbered years.
vi.Any other times as agreed between the parties.
f.Notwithstanding the above Orders, X shall spend time with the Mother as follows:
i.On X’s birthday if he is not otherwise in her care from immediately after preschool or school until 6pm on a school day.
ii.On the Mother’s birthday if X is not otherwise in her care from immediately after preschool or school until 6pm on a school day.
iii.On Mothers’ Day if X is not otherwise in her care from 5pm on the Saturday before to 5pm on that day.
iv.That X spend time with the Mother from:
1.3pm on Christmas Eve to 12pm on Christmas Day in even numbered years;
2.12pm Christmas Day to 3pm Boxing Day in odd numbered years.
v.That X spend time with the Mother from:
1.3pm New Years’ Eve to 12pm New Years Day in odd numbered years.
vi.Any other times as agreed between the parties.
g.Each party inform the other party if they intend to take X interstate during the period that the child is in that party’s care.
h.Changeover (other than at preschool or school) shall occur in the carpark of the McDonald’s Restaurant located at B Street, Suburb C.
i.Within fourteen (14) days of the date of these Orders, the parties shall do all things necessary to apply for an Australian passport for the child and keep the child’s passport current and the parties shall meet the costs of the passport application equally.
j.The Mother will hold the passport of the child.
k.Within seven (7) days of the Mother receiving the child’s passport, she shall provide the Father with a certified copy of the child’s passport.
l.The parties advise the other of any change of telephone number or residential address within 24 hours of such change occurring.
m.Each party is hereby authorised to obtain from the child’s school and/or preschool all notices, letters, school reports and invitations and to attend parent/teacher interviews or other activities to which parents are invited.
n.The parties shall keep the other informed of:
i.X’s health and any health issues as well as any procedures or operations to be undertaken prior to those procedures or operations being undertaken except in cases of emergency (with the party in whose care X is at the relevant time to inform the other party as soon as possible).
ii.The names and addresses of any treating medical or other allied health practitioner who treat X and shall authorise that professional to provide any information to the other parent.
o.Each of the Mother and the Father are hereby restrained by injunction from denigrating or insulting the other party or members of the other parties family or friends or culture in X’s presence or hearing or permitting any other person to do so.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
These are the Reasons for Judgment in respect of competing parenting applications in relation to X, born in 2020 (“X”). The applicant is Mr Battista (“Father”), and the respondent is Ms Battista (“Mother”).
On 20 September 2023, the Court made a suite of final parenting orders with the consent of the parties (“September 2023 Orders”). The September 2023 Orders provide for the parents to have equal shared parental responsibility, for X to live with the Mother at all times he is not spending time with the Father, and for time with the Father on particular special occasions. At the time of final hearing, while the issues for determination were narrow, they were hard fought.
Currently, X lives with the Mother and spends time with the Father each Thursday from 9am to 5pm, and from 8am Saturday until 3pm Sunday each alternate week. Such time is spent in accordance with interim parenting orders made on 15 June 2022, as varied on 9 February 2024.
The Court has been asked to determine what time X will spend with the Father, what time he will spend with each of his parents on special occasions and during school holidays, whether a restraint is to be made in relation to the Father’s brother Mr D, and the terms of an order for electronic communication with the party X is not spending time with. The parties agreed during the final hearing about time X is to spend with the Mother on his name day and on her name day. The parties also reached agreement as to international travel.
The Father seeks orders to spend time with X in accordance with the following, culminating in what is effectively an equal shared living arrangement:
(a)From 28 September 2023, a two-week rotation, from 8am until 12pm Thursdays in week one, and 8am to 3pm Thursdays and 3pm Fridays until 3pm Sundays in week two;
(b)From 20 March 2024, a two-week rotation, from 3pm Wednesday to 3pm Thursday in week one, and 3pm Friday to 3pm Monday in week two;
(c)From 25 September 2024, a two-week rotation, from 3pm Wednesday to 3pm Friday in week one, and 3pm Friday to 3pm Monday in week two;
(d)From 26 March 2025, a two-week rotation, from 3pm Wednesday to 3pm Friday in week one, and 3pm Thursday to 3pm Monday in week two;
(e)From 24 September 2025 onwards, a two-week rotation, from 3pm Wednesday to 3pm Friday in week one, and 3pm Wednesday to 3pm Monday in week two; and
(f)Part of school and Christmas holidays and special occasions.
The Mother seeks orders for the Father to spend time with X in accordance with the following:
(a)From 23 March 2023, a two-week rotation, from 9am until 5pm Thursday in week one, and 9am until 5pm Thursday and from 8am Saturday until 3pm Sunday in week 2;
(b)From 21 March 2024, a two-week rotation, from 9am until 5pm Thursday in week one, and from 9am until 5pm Thursday and 8am Saturday until 5pm Sunday in week two;
(c)From 4 February 2026 onwards, a two-week rotation, from 3pm until 7pm Wednesday in week one, and 3pm until 7pm Wednesday and from after school on Friday until 5pm Sunday; and
(d)Part of special occasions.
The Mother also seeks orders the Father be restrained from bringing X into contact with or communicating with the Father’s brother.
PROCEDURAL HISTORY
On 16 June 2021, proceedings were commenced by the Father seeking final parenting and property orders.
On 17 August 2021, interim parenting and property orders were made by consent.
On 18 November 2021, further interim parenting orders were made.
On 15 June 2022, interim judgment was delivered, and interim parenting orders were made.[1]
[1]Battista & Battista [2022] FedCFamC2F 778.
On 29 November 2022, orders were made by consent finalising the property proceedings.
On 2 December 2022, the matter was listed for hearing on 20, 21 and 22 September 2023.
On 20 September 2023, the first day of hearing, the matter was marked “not reached” and listed for hearing on 8 and 9 February 2024. These orders also finalised by consent part of the parenting issues for determination as noted earlier in these Reasons for Judgment.
BACKGROUND
The Father was born in 1982 and is presently 42 years old. He is employed on a full-time basis as a professional and has flexible work hours. The Father currently resides with the paternal grandparents.
The Mother was born in 1987 and is presently 37 years old. She works four days a week, three days from home and one day in the office. After taking 12 months maternity leave, the Mother says that she has been unable to return to full-time work due to her carer’s responsibilities and X’s needs. The Mother currently lives with the maternal grandparents.
The parties met by way of mutual friends and commenced a relationship in early 2016.
In 2018, the parties married and commenced living together. Initially, the parties lived at the maternal grandparent’s home in Suburb F, moving into the matrimonial home in Suburb G in mid-2019.
In early 2019, the Father’s brother threatened his wife with a weapon after he found out that she had been having an affair. He was ultimately sentenced to a term of imprisonment to be served by way of an intensive corrections order until mid-2024.
Between April and May 2020, the parties had an initial period of separation in which the Mother lived with the maternal grandparents.
In 2020, X was born and is presently 3 years old.
In January 2021, the partied separated on a final basis. The Father moved out and returned to the paternal grandparent’s home in Suburb H.
Following separation and until the orders of 17 August 2021, the Father spent little time with X and any time he did spend was in accordance with the Mother’s wishes.
In January 2021, the Mother moved out of the former matrimonial home and moved back to the home of the maternal grandparents with X.
In late 2021, the former matrimonial home was sold.
In late 2022, X commenced spending overnight time with the Father, being 12pm Saturday until 12pm Sunday on alternate weeks.
X has participated in consultations with health professionals to diagnose and manage numerous health conditions.
In late 2022, X was diagnosed with Autism Spectrum Disorder (“ASD”) and Global Developmental Delay (“GDD”).
Both parties have been actively involved in X’s health and treatment, with both parties often attending consultations and appointments with X.
On occasion, the Father has complained of the Mother making medical appointments without first consulting the Father as to his availability. The Mother says that it is often necessary to accept dates subject to X’s illness and doctor availability as opposed to the Father’s availability.
On 29 November 2022, final property orders were made by consent.
At the beginning of 2023, X commenced attending childcare three days a week on Mondays, Tuesdays, and Wednesdays.
In early 2023, the parties both attended an appointment with a Dr V where they were advised that X needed surgery. The parties agreed to schedule the surgery for mid-2023, and to go on a standby list in case an earlier appointment became available.
In mid-2023, X had his surgery.
Since the parenting orders of 20 September 2023, the Father has spent time with X largely in accordance with orders. However, he is of the opinion that the Mother has been difficult in allowing flexibility with the time he spends with X. The Father also complains of the Mother not allowing his Zoom calls with X on certain dates, and for not providing make-up time for these missed calls.
FAMILY REPORTS
Family Report dated 29 March 2022
The family report prepared by Mr J, dated 29 March 2022, was released to the parties on in March 2022. At the time of the report X was aged 14-months, and Mr J identified in the report that from an emotional and psychological perspective, X’s primary need was for stability, predictability, and security in his care and relationships.[2] Mr J identified the Mother as X’s primary attachment figure, and that the Father’s relationship with X was developing positively and that the arrangements at the time, whilst unsatisfactory to the Father, were sufficient for X to develop a secure attachment relationship without placing undue stress on X.[3]
[2] Family Report prepared by Mr J, dated 29 March 2022 at [140].
[3] Family Report prepared by Mr J, dated 29 March 2022 at [141]-[142].
Mr J noted in his assessment of the Father that the Father would benefit from a greater understanding about the importance of attachment relationships for young children. Mr J commented that some of the statements made by the Father “suggests that his proposal for [X’s] time in his care is somewhat underpinned by his perception that it is his right to be considered as equally as [the Mother] as [X’s] parent”.[4] Mr J stated that the Father’s proposal for X to spend overnight time at around 18 months was too ambitious and not supported by X’s developmental needs, but saw no reason why the Father’s time with X could not increase.[5] Mr J also noted the Mother’s support of the Father spending time with X based on X’s developmental needs.
[4] Family Report prepared by Mr J, dated 29 March 2022 at [144].
[5] Family Report prepared by Mr J, dated 29 March 2022 at [146].
In the report Mr J set out a possible pathway for incremental increases in the Father’s time with X:
(a)Starting with an additional half day at two and a half years of age, possibly Tuesdays;
(b)Moving to spending two consecutive days with the Father before commencing one overnight each week when X turned three years of age;
(c)Considering the possibility of an additional night per fortnight after X turns four years old;
(d)Considering another additional night per fortnight when X turns five years old;
(e)After X starts school, moving the Tuesday time to after school on Thursdays when X turns six years old; and
(f)Considering an additional overnight per fortnight when X turns seven.
Moderating this suggested pathway, Mr J commented:[6]
As stated, at the current time there are significant contraindicators for [X] living in an equal time arrangement. The parents do not have the requisite quality of relationship – flexibility, clear, open, and honest communication and an ability to problem solve together – for such an arrangement to be successful for [X]. However, if the co‑parenting relationship has benefited from professional therapeutic assistance, the possibility of [X] spending additional time in [Mr Battista]’s care and possibly living equally between the parents could be considered and the parents might consider attending mediation to ascertain the likelihood of such an arrangement working for and benefitting [X].
[6] Family Report prepared by Mr J, dated 29 March 2022 at [178].
Mr J made the following recommendations:
(a)The parties have shared parental responsibility;
(b)The X live with the Mother and spend increasing time with the Father until he is spending five nights per fortnight with the Father by the time he is seven years old, in line with the pathway outlined at [38] above;
(c)That the parties engage with a senior mental health professional to assist with communication, co-operation and problem solving;
(d)That the Father attend a mental health professional for individual therapy to improve his understanding of how his behaviour may impact others; and
(e)That both parties undertake the “Circle of Security’ course.
Updated Family Report dated 12 January 2024
The updated report, dated 12 January 2024, was provided to the parties on 15 January 2024. In the updated report, Mr J again identified concerns over the parties’ ability to communicate.
In making some general comments about the presentation of both parties, Mr J noted the Mother presented as ‘somewhat worn down’ and that she acknowledged the importance of the Father in X’s life and took some responsibility for the current state of the co-parenting relationship and its lack of improvement. In relation to the Father, Mr J noted that he presented as ‘somewhat rigid’ and that he eschews any responsibility for the poor state of the co-parenting relationship and laid the blame solely at the feet of the Mother.
As part of his report, Mr J collected what he referred to as “Collateral Information” which included five reports and two telephone conversations.[7] The first report was prepared at the request of the parents by Ms L dated 18 March 2022, who was X’s speech pathologist. Ms L assessed X when he was 14 months of age as the parents had raised concerns regarding his eating and expressive communication. The assessment indicated that X presented with below average language skills and feeding difficulties. In the report, Ms L recommended that X commence speech therapy, indicated that he had been having speech therapy since early 2022, and that Ms L and X’s paediatrician Dr K recommended a developmental assessment.
[7] Updated Single Expert Report prepared by Mr J, dated 12 January 2024 at [78]-[109].
The second report was prepared by Ms M dated 16 November 2022 as X’s occupational therapist. The report was to ascertain X’s sensory processing and was prepared after her assessment and observation of X in late October and early November 2022 which included X’s interactions with each parent and Ms L. Ms M recommended: that X attend childcare for peer modelling and socialisation and play skills; that those around X use increased affect when interacting to draw him into the interaction; that X be exposed to a range of textures; that X would benefit from being coregulated by a parent if overwhelmed; that new food should be introduced visually to his plate; that he would benefit from movement related activities; and that X needs a consistent routine, structure and predictability to maintain regulation as when he becomes dysregulated his feeding and general affect is impacted.
The third report was prepared by Dr N and Ms O, X’s development specialists. In this report X was diagnosed with ASD and GDD requiring substantial support. The report noted that the separation proceedings of the parents were characterised as “volatile and acrimonious” and, when exploring whether there was any family history of similar conditions, “some heightened disharmony became apparent” between the parties. Mr J noted several items mentioned in the report including: if X wakes and the Mother is not present then he may “subsequently become distraught”; X whinges and leaves to indicate displeasure; X has prominent repetitive behaviours; broadly, assessment was difficult as X was hyper focused and did not respond to direction; there were significant delays in overall adaptive functioning compared to his peers; and that X is at increased risk of multiple co-occurring conditions. The report made various recommendations the parent’s had already engaged with, in addition to recommending applying to NDIS for support and education.
The fourth report was prepared by Dr P dated 7 July 2023, as a consultant paediatrician. This was a letter to X’s GP after he was reviewed at two years and nine months following his ASD diagnosis. Dr P indicated in his letter that the marriage was “high conflict” and “certainly the relationship of [the Mother] and [the Father] in my consulting rooms was, in my opinion quite acrimonious”. It also recommended that X have psychological counselling either weekly or fortnightly.
The fifth report was prepared by Ms Q, a dietician, and Ms R, a speech therapist. In the report it was noted that X failed to indicate hunger and inconsistently accepted known foods. The assessment indicated that X’s reluctance to try new foods placed him at nutritional risk and that he met the criteria for paediatric feeding disorder. Mr J noted that a range of recommendations were made.
The first telephone call was with Ms S, the Director of T Childcare. Ms S confirmed that X had commenced childcare in February 2023 and described him as “such a sweetheart”. She said that X is “definitely on the spectrum”, that his eating has “ups and downs”, but that he does not engage in any difficult or aggressive behaviour. She stated that X communicated with educators by holding their hand and taking them to what he wants and pointing, and the educators then spend time to understand what he is trying to communicate. Ms S said that in 2024 he would be in a different room with more children and lower ratio of staff to children and that an assessment would be conducted to see if he would require additional assistance. Ms S could not comment at the time of the call whether this would be likely or not, aside from the comment “next year will be different”. Ms S told Mr J that X does not demonstrate particularly clingy behaviour and if he is with the Mother, that he settles very quickly and easily after she leaves. Though, if X is run down or unwell, he is clingier in the morning with the Mother. In relation to the parents, Ms S told Mr J that, from her perspective, the parents have worked well together and there had been no issues to her knowledge, and that the parents had indicated that all correspondence ought to be sent to both parents. Mr J also noted that Ms S said that the parents had arranged for various health professionals to attend the centre to conduct observations and provide staff with advice such as the use of a particular plate for X, and that the parents have also provided staff with reports about X that might be useful or contain recommendations that can be implemented by the educators.
The second telephone call was with Ms U, a psychologist who had been working with the parents since mid-2023 in relation to X’s ASD. Ms U told Mr J that the Father did not necessarily “see the point” of psychology appointments because X’s behaviour in his care is fine and any issues X is having occur when in the Mother’s care and that he did not notice there being any issue. Ms U told Mr J that, initially, she had a joint appointment then conducted separate appointments at the Mother’s request. Ms U told Mr J that the initial appointment gave her the clear impression that the parents had great difficulty with communications as they “clashed and could not agree on things” and they bickered and spoke over each other during the appointment, and that a therapist had come to her for advice about managing the parents’ behaviour in session because their communication was “not on par at all” and conflictual. Ms U told Mr J that she had, at the time of the call, ceased working with the parents because she has nothing more to offer them, but when she was working with them, she had identified various issues between the parties including:
(a)That the parties identified changeovers as a flashpoint of conflict and that she tried to get the parents to improve their communication, but was unsuccessful in getting the parents to implement suggested strategies;
(b)That there are differences between the parents in what they considered the frequency, content and how communication between them ought to occur. Ms U told Mr J that she perceived the Mother to be willing to provide the Father with information about X, that the Father wants to keep himself informed about X, but daily emails are a little excessive as the Mother may lack the time to respond;
(c)That the Mother indicated X can be clingy and unsettled when he comes back into her care. Ms U said this could be “normal” because he missed the Mother or was anxious. Ms U had suggested that X could have a FaceTime call when in the Father’s care overnight, but the Father had advised Ms U there are orders in place in relation to such calls and he did not see the need for such a call. Ms U said that such a call ought to be a non-negotiable if X spends more than one consecutive night with the Father;
(d)That the parents’ behaviour in front of X was important modelling behaviour for him and that she had told the parents she wanted them to adopt more flexible thinking. She provided Mr J an example of when the Mother was 10 minutes late to changeover and the Father telling the Mother that he would bring X back 10 minute later. Ms U said the Father could have accepted that getting a small child to changeover on time can be difficult and not expect time to be made up, and the Mother could have accepted her lateness and agreed to X returning to her care 10 minutes later;
(e)That X might not be able to communicate freely between the parents about his time in their care and that this may lead X to think he needs to keep secrets from his parents. Ms U perceived that neither parent wanted to share anything about their lives with the other parent and that this was concerning and does not provide X with a “good model of communication”;
(f)That consistency between the parents’ homes will be very important for X, but Ms U noted that the parents have varying parenting styles. She gave Mr J the example about the Mother encouraging X to eat even if he is resistant, while the Father not wanting to force X to eat if he does not want to. While Ms U did not have any significant safety concerns for X while in his Father’s care, she told Mr J that the parents’ communication needed to improve; and
(g)That the parents have very little respect for each other. Ms U told Mr J that she perceived the parents to be “fed up’ with each other and walking on eggshells, and that the parents were aware of their communication difficulties and would like to change but that they currently relate to each other with “concrete rigidness, stubbornness and spite”.
The ill feeling between the parties and overall lack of improvement in their co-parenting led Mr J to state:[8]
Therefore, the co-parenting relationship remains, with even more certainty, contraindicative for [X] to be able to live in an equal time parenting arrangement without suffering any negative emotional and psychological impact and no information obtained for this assessment dissuades the writer from that opinion. Rather, this position has been strengthened, given there has been no appreciable improvement in the co-parenting relationship, and feasibly a deterioration, since the initial assessment.
[8] Updated Family Report prepared by Mr J, dated 12 January 2024 at [144].
Regarding X’s ASD diagnosis, which was after the original report, Mr J noted that this means the co-parenting relationship required even greater flexibility, trust, cooperation, and open and amicable communication which X’s parents lack. Mr J commented generally, that children on the autism spectrum need to have a regular, predictable, and maintained routine.
While both parties professed to accept X’s diagnosis, Mr J noted that it is possible the Father may not fully accept the diagnosis as he postulates other reasons to explain X’s developmental delay, eating problems, and behaviour. Mr J emphasised it to be imperative for parents of any child with special needs to accept the diagnosis and work together to care and support the child.
The updated report again supported a long incremental increase in the Father’s time with X. Mr J made the following recommendation:[9]
It is recommended that [X]’s time in [the Father’s] care increase one night (Friday) per fortnight until mid-2024. It is recommended that this arrangement remain in place until the first quarter of 2025 and then another night be introduced so that, by the time [X] commences school in 2026, he is spending from after school Thursday until 4.00PM on Sunday each alternate week in [the Father’s] care. It will be important for [X] to start the school week from [the Mother’s] home on the Sunday afternoon as this will set him up for the week ahead.
[9] Updated Family Report prepared by Mr J, dated 12 January 2024 at [156].
In addition to suggesting that the Court might need to revisit parental responsibility and consider granting sole parental responsibility to X’s primary carer, Mr J made the following recommendations:
(a)The X live with the Mother;
(b)That X spend three nights per fortnight with the Father in line with the recommendation outlined above at [53];
(c)That there be no change in X’s parenting arrangements during the school holidays for his first year of school;
(d)That the parties engage in a parenting coordinator to assist in decision-making and mediate conflict;
(e)That the parties attend a senior mental health clinician with family law experience for two years after final orders for joint sessions to improve communication and the co‑parenting relationship; and
(f)That the parties use a communication application such as Our Family Wizard.
Mr J was not moved from his recommendations during cross-examination.
RELEVANT LEGAL PRINCIPLES
The central enquiry is for the Court to determine the outcome that will be best for the child the subject of these proceedings.
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”). Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in a child’s best interests, the Court must consider the matters set out in s.60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child. The Act does not mandate the discussion of considerations under s.60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[10]
[10] See Slater & Light [2011] FamCAFC 1 at [45].
In applying the primary considerations, the Court is to give greater weight to the need to protect children from harm than to the benefit to the child of having a meaningful relationship with both of their parents.
A meaningful relationship “is one which is important, significant and valuable to the child.”[11] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[12]
[11] Mazorski & Albright [2007] FamCA 520 at [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 at [121] (“McCall”).
[12] McCall at [122].
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence, and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests. In this instance, the parents had earlier invited the Court to make orders for equal shared parental responsibility.
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[13]
[13] MRR v GR [2010] HCA 4 at [13].
While all relevant primary and secondary considerations have been considered, not each of the considerations has been discussed in these Reasons. The reason for this is that discussion does not mean consideration.[14]
[14] Banks & Banks [2015] FamCAFC 36 at [52].
DETERMINATION
X is a young child of 3 years. He has ASD and GDD. He is a child with special needs, which manifest themselves, inter alia, in him displaying impairments in responding to attempts at engaging him in joint attention, generally avoiding making or sustaining eye contact, being impaired in his use of simple gestures, displaying a number of repetitive motor movements, and having difficulty with transitions and resisting change.[15] X also has difficulty feeding and remains a very fussy eater, and he is required to take vitamin and mineral supplements to meet his nutritional and health needs. Such matters highlight X’s particular vulnerabilities.
[15] Exhibit 4, pages 11-14 of 14.
X has a meaningful relationship with both of his parents, and strong attachments to each of them. While the Mother has been his primary care giver for the majority of his life, and is his primary attachment figure,[16] he is nonetheless strongly attached to the Father.
[16] Family Report prepared by Mr J, dated 29 March 2022 at [141] where the expert said that the Mother is “undoubtedly” so.
There was robust cross-examination of the Mother apropos her assertion in an email to the Father of 22 December 2023, where the Mother wrote to the Father “you will no doubt appreciate that I am his secure attachment”.[17] The Mother conceded in her oral evidence that presently X also has a secure attachment to the Father.
[17] Exhibit 2.
Such robust cross-examination is an example of the Father’s need to prove himself important in X’s life. It is also an example of his rigidity and misguided focus on his own needs rather than those of his child.
The email arose in the context of the September 2023 Orders and the interim parenting orders. Because the September 2023 Orders did not purport to suspend the interim parenting orders on special occasions and similar, the effect of the two orders when read together was that X was due to spend time with the Father from 8am Saturday 23 December 2023 to 3pm on Sunday 24 December 2023 (interim parenting orders), and from 3pm on Christmas Eve to 12 pm on Christmas Day in odd numbered years (September 2023 Orders). The emails also arose in the context of the parents not being able to agree on final orders with respect to X spending time with the Father, an issue that was very much alive at the time, particularly as the matter was not reached for final hearing in September 2023.
When the Father initially emailed the Mother on 16 December 2023 and sought to “confirm” what time X would be spending with him between 22 December 2023 to 23 January 2024, he conflated the two sets of orders such that the end result was X spending two nights in a row with the Father.
After receiving the Father’s email, the Mother raised her concerns about X spending consecutive nights away from her, and that this was not in his best interest. She also made known her view that the court orders did not suggest the same. She included a proposal for X to spend time with each of the parents over the Christmas period.
It is conceivable (although not the subject of any specific evidence) that in the context of what was going on between the parents and their continued dispute in respect of parenting, together with the fact that the interim parenting orders and the September 2023 Orders were not easily reconcilable in certain respects, that it was not the intention of the parties at the time of asking the Court to make those final September 2023 orders for X to spend more than one night with the Father; this being the very issue that the Court was being asked to decide on a final basis. Certainly, the Mother’s reluctance at X spending consecutive nights with the Father, in the relevant context, is understandable and consistent with her position in respect of final orders.
The Father’s insistence of compliance with “the orders”, in light of the Mother’s ongoing concerns about X spending more than one night away from his primary home, and her explanation for the concerns in respect of the Father’s assertion about the effect of the two sets of court orders, makes light of her parenting capacity, her concerns, and is dismissive of her and in one sense X’s needs.
What else it does is that it feeds the existing conflict by insisting on compliance with “the orders” when, arguably, the September 2023 Orders:
(a)by virtue of being final orders; and
(b)including an order that “X live with the Mother at all times other than when he is spending time with the Father in accordance with the Orders” (emphasis added);
infect the operation of any previously made interim orders with uncertainty.
In any event, the above brief analysis is not meant to be a finding in respect of the effect of the orders, but simply an explanation for the benefit of the parents who will hopefully read this judgment carefully that there are, at times, very different ways of looking at certain things which are legitimate, and that the other parent’s view point should not simply be dismissed out of hand (as it seems to have been done here by the Father) even if he is arguably technically in the right about the effect of the simultaneous operation of the two sets of orders . This is particularly so when the point of view which is being expressed is done from the Mother’s perspective as to what may be best for X given his particular vulnerabilities.
The Father’s email to the Mother that “unfortunately” he will “have no alternative than to engage [his] … lawyer to ensure that…[she complies]” is a further prime example of his inflexible attitude and his insistence that, if he is in the right, then there will be no deviation, even when reasonable and understandable. The Court accepts the Mother’s evidence that the Father, as a matter of course, intimates that he will call his lawyer or accuse her of breaching court orders in circumstances where the Mother acts in a manner which he does not see as consistent with court orders.
These matters also feed into the Court’s findings about the Father’s lack of trust in the Mother in respect of her opinions as to how X is presently coping, and how he will likely cope in the future with spending significant and substantial (if not equal) time with the Father and away from her. Despite the Father accepting that the Mother is more involved with X’s everyday routine than he is, his concern seems to be that her apprehension about X having more overnight time away from her is not genuine but rather borne out of a desire or attempt hinder a meaningful relationship between him and the child.[18]
[18] Affidavit of Mr BattistaMr Battista, filed 31 August 2023 at [33].
Each of the parents loves X very much and each parent is capable and does meet his primary needs. Each of the parents looks after X while X is in their care to the best of their ability and in ways that the other parent, by and large, trusts and accepts. Each of the parents accepts that the other provides a loving and caring environment for X. However, the parties share very little of what X’s experience is across the households and what he might do on a day-to-day basis. Such information is important, if for no-one else then for X, so that he feels he is understood in both households and so that each parent knows what is important to him.
While there was much talk about trust and many questions posed of each of the parents in cross-examination about whether or not they trust the other, it is abundantly clear that the parents, while accepting that the other provides a loving and caring environment for X, have an innate distrust of what the other says, but only about certain things. That distrust arises out of different viewpoints and a lack of understanding and acceptance of the other parent’s viewpoint. It is a mistrust that is difficult to define, and it certainly does not amount to anything overt such as, for example, one parent disbelieving the other that the child has been fed appropriately. It more arises out of the parents’ need to control and direct the other parent and perhaps hypervigilance in ensuring that X is well rested and well looked after, so that he can thrive in the best way possible.
An example of this is when X spent overnight time with the Father on 22 October 2022. On that occasion, the child had a fretful night and did not sleep well (as is usually the case). The Father did not tell the Mother when the child returned to the Mother’s care that he had not slept well, something the Mother thinks the Father should have told her so that she could ensure that he was given more time to rest that day. The Father took this to be criticism from the Mother and an attempt at micromanaging him, rather than an attempt at her being properly informed so she could look after X in the best way possible.
At present X spends each Thursday with his father and one night each alternate weekend. Following the regular Thursday time, the Father religiously writes to the Mother and provides important detail of X’s time with him. He does not do so in respect of the overnight time. When cross-examined as to why, the Father said that if the Mother requested it, he would do so. The Court finds that the Father knows full well that his refusal to email the Mother about the overnight time X spends with him in line with the emails he sends to her each Thursday, of his own free will and without being specifically asked for them by the Mother, borders on being spiteful.
The Father’s complaints in his evidence about the Mother addressing him in emails with “Hi [Mr Battista]”[19] while in one sense valid as there do not appear to be any other typographical errors in those emails, is also a complaint about an objectively trifling issue. It was exhausting to hear the parties’ trivial complaints about one another.
[19] Having regard to the “QWERTY” keyboard, the typographical errors are understandable and do not of themselves imply any malicious intent.
In one sense, each of the parents is very rigid in their approach to what they see as the other’s shortcomings. They are easily annoyed by the other’s idiosyncrasies and take to heart things which in the scheme of things are not, objectively, particularly important. Having observed the parents in the witness box and having heard and read their evidence, it is the Court’s view that the Father is the more inflexible and rigid of the two.
The Mother should not have to walk around on eggshells to ensure that her actions do not set the Father off. The Father should be more mindful of his tone and manner of interaction with the Mother when the parents are face to face. He should not be going off at the Mother at being waved over. He should not be going off at the Mother, period.
It is not appropriate for the Mother to purposefully be on a phone call during changeover with a view to minimising her engagement with the Father. It shows contempt and a lack of respect for the Father in front of the child. The Mother said in her oral evidence that she would not behave like that in Court, so one wonders why does she behave like that in public with the Father?
The Mother should be more mindful of her tone and manner of interaction with the Father through email and be mindful that what she may view as a suggestion often comes across as a direction. For example, where the Mother, in her email to the Father of 29 August 2023, said to the Father “You will also ensure [X] has a snack during this time” is outlandish micromanagement. This part of the email was amongst a chain of emails between the parties comprising of a petty tit-for-tat in respect of Father’s Day at the child’s pre-school. Of course the Father knows to feed X if he is hungry or if the Father thinks that X has not eaten sufficiently. He does not need to be told to do so. The fact that he would be annoyed at such suggestions is perfectly understandable.
The Father should be trusting of the Mother when she tells him that X is clingy and tired after spending time away from her. He should understand that just because X does not display this type of behaviour when with him, that it does not mean that he does not behave in this manner when with the Mother. She is, after all, his primary attachment figure. It is unfortunate that the Father focuses on himself rather than the child in respect of not accepting that such behaviours are observed by the Mother. It shows a lack of understanding of X’s needs.
The answers given by the Father in cross-examination were indicative of his lack of trust in the Mother’s assessment and knowledge of X’s needs and her parenting capacity. For example, when he was asked if he accepts that X is tired and hungry and very clingy after returning from spending overnight time with him, his reply was “I don’t accept it… I haven’t seen it.”
The cross-examination of the Mother was illuminating of the Father’s attitude to parenthood, his attitude towards the Mother, and his enthusiasm for laying blame at the feet of the Mother for things he does not agree with or which, to his mind, have not been done in a manner that is consistent with what is best for X.
A prime example of this were the questions which were asked of the Mother in respect of the timing of X’s surgery. To put things in context, at the time that the operation was booked, which was in early 2023, X had been suffering from symptoms for over twelve months. The first available date for the operation was mid-2023, which the parents accepted, and thereafter the Mother made arrangements to take time off work to not only be present on the day of the operation, but also for 2 weeks afterwards while X recuperated. It was still done in a timely manner and no doubt required the Mother and her employer to make those arrangements very quickly. X was also placed on a waitlist in case an earlier date for the operation became available.
In or about early 2023, the Mother was contacted by the specialist’s surgery and told that an earlier date had become available. The Mother was not able to be available on that date due to her work commitments, and she declined to change the date of the surgery. She made that decision without consultation with the Father. She did however, notify the Father almost immediately that the surgery had called and that she had declined to change the date, and explained her reasons. The Father’s reaction was to show upset, and express to the Mother his frustration at not being involved in that decision, particularly as he was himself able to make arrangements to be available for the day of the surgery.
X then got sick, this occurred in about mid-2023. He was on antibiotics and the condition was painful. He, however, was well enough to undergo the surgery, which he did and took two weeks to recuperate. The Mother was present at the surgery and X stayed home with her for the two weeks post-surgery and did not spend time with the Father, in accordance with an agreement reached between the parents.
The cross-examination of the Mother included the following questions of her:[20]
[20] Not from an official transcript, but transcribed by Court staff from the audio of the hearing.
Counsel: So when [Dr V] was giving you the date, when you’re at that appointment, you made yourself available to be with [X] on that day? On the day of the operation?
Mother: And the two weeks for his recovery period.
Counsel: Ok. Alright. And then, you then advised [Mr Battista] of that date?
Mother: No, [Mr Battista] was present when the appointment was made.
Mr Dura: Ok, so you’re both there?
Mother: Yes.
Counsel: So you both made yourselves available to be there [for the operation]?
Mother: We basically scheduled the first available appointment, which was [mid-2023], we were put on the waitlist for any potential cancelations.
Counsel: So you both knew that the operation needed to happen as soon as it could?
Mother: Yes.
Counsel: Correct? Cause you booked the first available and you had yourself on standby if there was an earlier cancelation?
Mother: Yes.
Counsel: You both knew that it was something that [X] had been struggling with and that’s why you were there with [Dr V].
Mother: Yes.
Counsel: So [in early 2023] keep reading from paragraph 130, you say you received a call from [Dr V]’s office and said to you, consistent with you being on standby, we’ve got an opening [earlier]?
Mother: Yes.
Counsel: Right. You’ve said to them “I’ll speak with [Mr Battista] and I’ll get back to you”?
Mother: Correct.
Counsel: Right? And you say you then reviewed your week your work calendar and realised you couldn’t take the two weeks off?
Mother: Yes.
Counsel: And then, without consulting with [Mr Battista], you immediately rang back to the [Dr V’s] offices and told them “well let’s just keep the date”?
Moter: Yes, there was other…
Counsel: That’s what you did, didn’t you?
Mother: Sorry, yes, yes.
Counsel: And then what you did is you rang [Mr Battista] said to him “they called me, we could do [the earlier date], I’m not available, so I told them to keep it [mid-2023]”?
Mother: Um, yes, but sorry…
Counsel: That’s what happened wasn’t it?
Mother: Yes, however, there’s some other mitigating circumstances with regards to [X]’s surgery that…
Counsel: No, I’m just reading your affidavit.
Mother: Oh, ok, yes.
Counsel: If there are other mitigating circumstances are they not referred to in your affidavit?
Mother: There is further down yes.
Counsel: Ok. So, [Mr Battista] told you, when you had the conversation with him [in early 2023], that he could be available for [X] to take him to the appointment and be available for him on [the later] operation didn’t he?
Mother: Ah, yes.
Counsel: But you didn’t bother to enquire with [Mr Battista] before making the decision to delay the operation for a month did you?
Mother: We weren’t delaying it, it was scheduled in.
Counsel: [Ms Battista], you had the opportunity to bring it forward a month?
Mother: Somewhat, yes.
Counsel: Not ‘somewhat’, yes.
Mother: Almost a month, yes.
Counsel: Right. And that was for [X]’s benefit, hence the reason why you were on standby, and didn’t have to wait till [mid-2023]?
Mother: Correct.
Counsel: Right, something the two of you agreed to do when you were with [Dr V] [in early 2023]?
Mother: Correct.
Counsel: Right. You didn’t enquire of [Mr Battista] if he was available to take your son to have the operation a month earlier before dismissing it as an option did you?
Mother: I, sorry, before dismissing it as an option we were advised by [Dr V] That [X] needed to isolate from daycare the week preceding his surgery.
Counsel: Ma’am stop. You did not engage with [Mr Battista] to say “surgery’s just rang, we can get him in [on the earlier date], can you do it”?
Mother: No.
Counsel: Right. All you did, is you looked at your work calendar.
Mother: Correct.
Counsel: Realised, you couldn’t be there for [X], so decided it wasn’t an option for [X] to have that surgery [at the earlier date]?
Mother: As well as the other…
Counsel: No, I’m reading your affidavit. What you’re telling me now is nowhere in your affidavit is it?
Mother: The appointment with the dietitian as well.
Counsel: What you’re telling me now, is not something you put in your affidavit about [X] having to isolate for two weeks, or a week, before [the earlier] operation. You didn’t say that in the paragraphs do you?
Mother: Ah, no it doesn’t look like it, no.
Counsel: Right. I’m sure, if that’s what they did tell you, you would have said to them “well he won’t be able to isolate for a week before [the earlier date], so we can’t do that”. You didn’t say that to them did you?
Mother: To the…
Counsel: To the surgery.
Mother: Yes, sorry, no I didn’t say that to them but then…
Counsel: Because you immediately ruled it out because you couldn’t be there, irrespective of whether or not his father could?
Mother: I had a conference so no I couldn’t be there.
Counsel: Right. But even if for [X]’s benefit it was brought forward 28 days, and his father was there to support him and you weren’t, you weren’t prepared to do that for [X]’s benefit were you?
Mother: I, I don’t think it would have been a good idea.
Counsel: You weren’t prepared to do it for [X]’s benefit were you?
Mother: For [X]’s benefit?
Counsel: To have the operation 28 days earlier?
Mother: Yes, there was also the matter of the two week recovery period after the fact as well that needed to be taken into consideration.
Counsel: You had to be there didn’t you?
Mother: I think it’s important that I was, yes.
Counsel: Right. More important than his dad being there?
Mother: No, [Mr Battista] was also at his surgery as well. I think it’s important that both of us would be there. So if either of us…
Counsel: Even if it was to [X]’s detriment
Mother: I don’t think it was to [X]’s detriment.
Counsel: Well, let’s read on in your affidavit.
Mother: Yep.
Counsel: In paragraph 131, where you talk about this phone call, you say that “[Mr Battista] continued to accuse me of making decision unilaterally”. See that there?
Mother: Mmm
Counsel: And on that occasion, that is exactly what you did, wasn’t it? You decided, without consultation with [Mr Battista], that [X] would not have the operation 28 days earlier?
Mother: I don’t think that would have been a good idea no.
Counsel: No, you, did you understand….
Mother: Sorry, yes.
Counsel: Right, thank you. And he told you didn’t he, that being [Mr Battista], said to you that he would be available for [X]’s surgery and that if you couldn’t be there, you didn’t have to be there? He said that to you didn’t he?
Mother: He said that yes.
Counsel: Now, we then read on in your affidavit in the following paragraphs, and we have, if I understand that chronology correctly, we have the weekend of Mother’s Day.
Mother: Yes.
Counsel: Where we heard some questions about that, and we read over the page. When he comes into your care [in mid-2023], paragraph 137, so he’s back in your care, you tell [Mr Battista] that [X] needed to see his GP because he was unwell?
Mother: Yes.
Counsel: And he’d been unwell for a few days thereafter so he doesn’t go to childcare, paragraph 139?
Moher: Yes.
Counsel: And he doesn’t go because he has [an illness]?
Mother: Correct.
Counsel: All of which could have been prevented if he had his operation [earlier]?
Mother: Potentially.
Her Honour: Well you can’t have [surgery] if you don’t have […] can you?
Mother: Yes, but he could have had [illness] the week leading up to the surgery. When was it, the reschedule one, [the earlier date].
Counsel: Sorry, are we clutching at straws [Ms Battista] Sorry, I said that wrong and I apologise. But are we clutching at straws?
Mother: I don’t think so, I think it was important for both [Mr Battista] and I to be present for [X]’s surgery.
Counsel: Your son would not have been ill with [an illness for 2 days] if he had his operation [earlier]?
Mother: He would have been convalescing, he would have been recovery period yes.
Counsel: He would have been recovering, he wouldn’t have been suffering from [an illness]?
Mother: No.
Counsel: Right. But, because it didn’t meet your convenience, your little boy had to go through that?
Mother: I think that’s a bit unfair sir.
Counsel: Well how else do you put it?
Mother: I was not available to be present for [X]’s surgery at that point in time.
Counsel: How long was your conference.
Mother: Three days.
Counsel: Right. So he could have had his operation, and where was the conference?
Mother: In Sydney.
Counsel: Right, were you overnight at the conference?
Mother: No.
Counsel: Right. So he would have had an operation…
Mother: Or two days maybe I’m sorry.
Counsel: Ok, lets call it three days, in Sydney, not overnight?
Mother: Yep.
Counsel: He goes in has his operation, you’d be there in the evening when he comes out of his operation. He wakes, mum’s there dad’s there. Right, when he had his operation, how long did he stay in hospital for?
Mother: Overnight.
Counsel: One night?
Mother: Overnight, yes.
Counsel: OK, so let’s assume he did it [on the earlier date], when did your conference start?
Mother: I can’t remember sir. It was that week. I think it was a Tuesday and a Wednesday, I’m not certain.
Counsel: Right, so he stays overnight, you could have stayed there overnight, you both could have stayed there overnight because that wasn’t the conference time correct?
Mother: Overnight?
Counsel: Yes.
Mother: Yes.
Counsel: Next morning…
Mother: Sorry, I wouldn’t have felt comfortable staying overnight with [Mr Battista] just…
Counsel: Well one of you could have stayed there. Let’s assume you could have stayed there right? The next day [Mr Battista] rocks up, you go off to your conference and he spends the day with his dad, convalescing in hospital until he is released?
Mother: Ok.
Counsel: Right. By that stage you’ve had two days of your conference. He may have had a third day home recovering with his dad until your conference is over. Or he could have been home and been cared for by your mum. Correct?
Mother: Correct.
Counsel: Right. By that stage your conference is done, he’s had his operation, he’s got another eleven days of convalescing at home?
Mother: Yes, sorry I keep nodding, yes.
Counsel: But you elected not to make that call?
Mother: I elected not to make that call, yes, no I did not.
Counsel: In your affidavit at paragraph 138.
Mother: 138?
Counsel: Yep. You describe what the GP told you was going on with [X]’s [illness].
Mother: Yes.
Counsel: They were [infected]?
Mother: Yes.
Counsel: Must have been painful for the little boy, wasn’t it?
Mother: Absolutely.
Counsel: All of which could have been avoided?
Mother: I understand what you’re saying …, but I thought it was…
Counsel: But you don’t agree with me?
Mother: I don’t agree that I shouldn’t have been at [X]’s surgery and vice-versa [Mr Battista] shouldn’t have been at [X]’s surgery.
Some months after the event, the Father still cannot let go of the Mother making that decision in respect of not having X’s surgery 4 weeks earlier than originally scheduled. He clearly blames the Mother for the child picking up an infection and, to his mind, unnecessarily suffering from an illness in mid-2023.
The evidence does not suggest that the surgery was life-saving or was the condition which X suffered from life-threatening. It was elective surgery, and while having a medical condition and being prone to a medical condition must have been uncomfortable for X, in the scheme of things, a “delay” of 28 days was not in any way detrimental to the child, except (on the evidence) in so far as it gave rise to another opportunity for illness.
The Father’s displayed attitude (through cross-examination of the Mother) is unreasonable. It is almost entirely dismissive of the Mother’s viewpoint and desire to be with the child during surgery and post-surgery. Indeed, the parents had agreed that the Mother would be there with the child for two weeks post-surgery while he recovered, and that she would be able to ensure that he isolated prior to the surgery. The parents had not agreed that the child would recuperate in the Father’s household. There is no evidence that such a scenario was ever discussed and/or contemplated, nor is there evidence in the Father’s case that he was available for X both pre-surgery and post-surgery. It is the Mother who had made herself available to care for X pre and post-surgery, she should not be criticised by the Father because she was not able to change her work and other arrangements to make herself available for a period of at least two weeks at very short notice. X still had to isolate pre-surgery and there were appointments that needed to be had with his feeding specialist prior to the surgery.
The Father, through his own evidence and cross-examination and through the cross-examination of the Mother, impressed as a parent with rigid and inflexible views, who, although he very much loves his son, was incapable of appreciating the value of the Mother’s opinion and her knowledge and understanding of X’s behaviour. The Father’s evidence is peppered with criticisms of the Mother for missed time between X and the Father, which the Father keeps a tight record of, including to the minute. For example, he was cross-examined on his insistence of make-up time when the Mother was 4 minutes late to changeover.
In addition, when the parents were discussing the pre-school X was to be enrolled in, after very strong recommendations were made by his treaters that he be enrolled without delay, the Father’s insistence that he would “agree to pay 50%” of the fees on certain conditions being met was again evidence of him not putting the child’s needs first and foremost. The conditions which the Father was imposing, namely that it be “a co-enrolment”, that he is listed as an emergency contact, that he is listed as a person who can collect the child, and that he is informed of all events, are all to do with him and not the child.
The Mother impressed as a thoughtful yet at times perhaps hypervigilant parent, which in the circumstances of X’s special needs and the parents’, at times rather acrimonious relationship, was understandable.
It is, of course, not for the Court to tell the parents how to behave and how to parent. This is not about imposing some sort of behaviour standard on parents. This is about ensuring that the orders which the Court makes meet the child’s best interests.
Even though the parents invited the Court to make orders by consent for them to have equal shared parental responsibility in September 2023, and although that order has been in place for over 5 months at the time of final hearing, the parents were still only in the embryonic stages of an effective co-parenting relationship.
The parents have however, since separation, moved leaps and bounds in terms of their capacity to co-parent, notwithstanding their stated difficulties and differences in opinion. On the evidence, they are ad idem in terms of professional and medical care which is provided to X, and they seem to be in large agreement about X’s schooling going forward.
Both parties are competent parents and perfectly capable of looking after X on a day-to-day basis, for example by ensuring that he is fed and well rested, that he is provided with appropriate day-to-day routine and that his medical and special needs are met.
The expert’s assessment indicates that:[21]
[X] will likely benefit from having one primary residence with [the Mother]… This will allow [X] to have the majority of the time with one consistent carer without having to adapt to changes… [X] needs to have one primary synchronised relationship…
[21] Updated Single Expert Report prepared by Mr J, dated 12 January 2024 at [155].
In addition and overall, the facts do not support an equal shared time arrangement for X. The parental relationship is far too conflictual. While the parents are able to agree about long-term decisions and have consented to an order for equal shared parental responsibility, their everyday communication and capacity to effectively co-parent this particular child with his special needs as would be required by an equal shared arrangement, is sadly lacking.
The Court accepts the evidence of the expert that it is better for X that he spend longer periods with the Father rather than going between households more often. Mr J was also of the opinion that, once X commences school, it will likely be difficult for him to spend a few hours after school with the Father rather than simply going home to an environment that he finds secure. The Court accepts that this year will be more challenging for X in terms of expectations at pre‑school than the previous year had been, and that as he gets older the expectations on him will be greater which will likely cause him more difficulties. In the words of Mr J, X needs to have a sense of attunement and that he needs “someone who gets me totally, I am with that person 100% of the time”.
A further matter which the Mother seeks orders about is that the Father be restrained from bringing the child into contact with his brother. There is no doubt that the Father’s brother’s conduct in pulling a weapon on his wife in front of their children was not only criminal but utterly reprehensible. The Father’s brother is not a witness in the proceedings. The Mother was not able to articulate any specific risk in respect of the Father’s brother. The Father gives evidence that his brother continues to be in therapy and continues to comply with the terms of the Intensive Corrections Order. The Court accepts that the Father does not consider his brother to be a risk to the child and that the Father will act protectively to the child at all times. The Court is not satisfied that the Mother has discharged the onus in respect of the injunctive relief sought.
Despite very helpful and detailed submissions by the parents’ respective counsel, the Court is not satisfied that either party’s proposal is in the child’s best interest. The Mother’s proposal does not allow for enough time between the child and his father and the Father’s proposal is far too ambitious and places too little emphasis on X’s special needs and capacity to cope with change, and his need for stability and routine.
While one might understand that routine can involve very many changes as long as they are done in a predictable manner, such changes are not what is best for X. Meeting his best interests is best done by acknowledging and respecting his special needs and the difficulties he will have as he grows up with managing the world around him. X’s need for stability and safety will likely be greater than that of his peers who are neurotypical, and it will be important to honour that. A primary home base is one way in which this can be achieved, although at some expense to his time with the Father.
The Court accepts the evidence of the expert in respect of how time between X and his father might incrementally increase to cater for X’s special needs and his limited capacity for coping with change.
In respect of video and electronic communication between the parents and the child when he is spending overnight time with the other parent, this too has not been without difficulties to date. While the evidence is that the parents are each understanding that a toddler is not likely to spend half an hour on a video call, the reality is that there are complaints in their respective evidence about such video calls being cut short, the other parent’s perceived expectations when this happens, and complaints about such calls not taking place.
The evidence is that the Mother has at times asked the Father to have the call at an alternative time which the Father refused, and that the Mother has asked the Father to provide a device which has its own SIM card so that the child can receive calls while they are outside of the house, which the Father has not supplied. On the other hand, the Mother does not explain adequately why she cannot provide an alternative device for the child when they are out (such as allow the use of her own mobile phone) or why she cannot “hotspot” the call. The Father lists in his evidence all of the video calls that have been missed, no doubt with the purpose of showing that this indicates to him that the Mother does not consider his time with the child important.
Again, such evidence demonstrates the parties are getting caught up in the minutiae of their conflict and that they cannot see the forest for the trees. Neither is willing to give.
The present interim arrangements for video and electronic communications are too onerous for X given his young age and special needs. For that reason, time between X and each of his parents when he is spending overnight time with the other parent will be less frequent, but will include periods when X is spending away from the Mother.
During the hearing, the Father conceded in cross-examination that it is appropriate for X to spend time with the Mother during Easter as celebrated in the Orthodox faith. The parties agreed on time X is to spend with each of them during Easter as celebrated in the Roman Catholic faith.
At the conclusion of the hearing, the parties indicated that they would be providing a minute of order in respect of certain matters that had been agreed by the parties during the hearing. That minute was provided but ultimately the Court declines to make all of the orders as agreed, and in particular in so far as they conflict with the 2023 September Orders, otherwise those proposed orders will be made.
For all of those reasons, orders as set out at the forefront of these Reasons for Judgment will be made.
I certify that the preceding one hundred and seventeen (117) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 1 March 2024
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