BECKLIN & BECKLIN
[2020] FCCA 941
•30 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BECKLIN & BECKLIN | [2020] FCCA 941 |
| Catchwords: FAMILY LAW – Children – equal shared parental responsibility – children with complex special needs – capacity of parents – currently equal shared care – mother’s application for primary care. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CC, 60CA, 65DAA |
| Cases cited: McCall & Clark (2009) 41 Fam LR 483 Mazorski & Albright (2007) 37 Fam LR 518 |
| Applicant: | MS BECKLIN |
| Respondent: | MR BECKLIN |
| File Number: | ADC 2674 of 2017 |
| Judgment of: | Judge Cole |
| Hearing dates: | 11, 12 & 13 September 2019 |
| Date of Last Submission: | 17 February 2020 |
| Delivered at: | Adelaide |
| Delivered on: | 30 April 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Horvat |
| Solicitors for the Applicant: | Weatherly & Associates |
| Counsel for the Respondent: | Mr Anderson |
| Solicitors for the Respondent: | White Berman |
| Counsel for the Independent Children's Lawyer: | Ms Lee |
| Solicitors for the Independent Children's Lawyer: | Legal Services Commission of South Australia |
ORDERS
That the parties have equal shared parental responsibility for the children namely X born in 2009 and Y born in 2010.
That unless otherwise specified, each parent shall be responsible for making decisions concerning the day to day care of the children when the children are living with them.
That the children live with the parties as follows:
(a)In Week One:
(i)With the mother from the conclusion of school Thursday until the commencement of school Monday; and
(ii)With the father from the commencement of school Monday until the conclusion of school Thursday.
(b)In Week Two:
(i)With the mother from the conclusion of school Friday until the commencement of school Monday; and
(ii)With the father from the commencement of school Monday until the conclusion of school Friday save and except during school holidays whereby time will conclude at 9:00am.
(c)Such further or other time as agreed between the parties in writing.
Special Occasions
That the children spend time with each of their parents on special occasions as follows:
(a)On the occasion of Christmas:
(i)With the mother in 2021 and in each alternate year thereafter from 3:00pm on Christmas Eve until 3:00pm on Christmas Day;
(ii)With the father in 2021 and in each alternate year thereafter from 3:00pm on Christmas Day until 3:00pm on Boxing Day;
(iii)With the mother in 2020 and in each alternate year thereafter from 3:00pm on Christmas Day until 3:00pm on Boxing Day; and
(iv)With the father in 2020 and in each alternate year thereafter from 3:00pm on Christmas Eve until 3:00pm on Christmas Day.
(b)On the occasion of Easter:
(i)With the father in 2020 and in each alternate year thereafter from the conclusion of school on Maundy Thursday (or 5:00pm if it is a non-school day) to the commencement of school on Tuesday (or 10:00am if it is a non-school day); and
(ii)With the mother in 2021 and in each alternate year thereafter from the conclusion of school Maundy Thursday (or 5:00pm if it is a non-school day) to the commencement of school on Tuesday (or 10:00am if it is a non-school day).
(c)With the mother on the occasion of Mother’s Day from 6:00pm on the evening preceding Mother’s Day until the commencement of school on the following Monday.
(d)With the father on the occasion of Father’s Day from 6:00pm on the evening preceding Father’s Day until the commencement of school on the following Monday.
(e)The parties be otherwise at liberty to agree for the children to spend time with each parent on special occasions in writing.
That in respect of the children’s autism, the parties do facilitate the children’s attendance on the following practitioners in respect of their special needs:
(a)In the case of Y:
(i)Ms B, speech therapist, or such other therapist as recommended to take her place;
(ii)Ms C, occupational therapist, or such other therapist as recommended to take her place;
(iii)Dr D;
(iv)Dr E, or such other psychologist as recommended by or via F Service; and
(v)Any professional provided by the Department of Education, NDIS or any other organisation providing funding or assistance for Y’s benefit;
(b)In the case of X:
(i)Mr G, speech therapist;
(ii)Ms H, psychologist;
(iii)Ms C, occupational therapist, or such other therapist as recommended to take her place;
(iv)Dr D; and
(v)Any professional provided by the Department of Education, NDIS or any other organisation providing funding or assistance for X’s benefit;
(c)NOTING THAT the parties will follow the reasonable recommendations and advice from any other professionals identified and FURTHER NOTING that the mother shall continue to liaise with NDIS and any other organisation providing funding assistance to the children.
That the parties and each of them do:
(a)Keep the other informed via email or text message as to all medical and other issues concerning the children and any illness or medical emergency that may arise;
(b)Authorise the other to consult with and obtain advice from any of the children’s treating medical, specialist or allied health practitioners;
(c)Be at liberty to receive any and all information from any of the children’s treating medical, specialist or allied health practitioners;
(d)Be at liberty to attend at all of the children’s school functions and activities to which parents are ordinarily invited to participate and attend;
(e)Be at liberty to obtain copies of all school newsletters, school reports, photographs and the like at each parent’s sole expense in all things;
(f)Facilitate the children (or either of them) communicating with the other parents by any means whatsoever at any reasonable time; and
(g)Enrol in the J Families “Kids Are First” program within thirty (30) days of this Order and provide the other party with a copy of the certificate received by him/her on completion of the same.
That the parties be at liberty to take the children on a holiday in each calendar year for a period of up to fourteen (14) nights provided that the party proposing to take an extended holiday with the children provides written notice to the other party of no less than twenty-eight (28) days before the proposed holiday and that such holiday does not include the Christmas period.
That the parties be restrained and injunctions are hereby granted restraining each of them from removing the children or either of them from the State of South Australia save and except if the travelling party has first provided fourteen (14) days’ notice in writing to the non-travelling party and provided the travelling party has provided the non-travelling party with the details as to departure and return dates, flight numbers or details as to other modes of travel and particulars of destination.
That the parties do within twenty-one (21) days agree upon a psychologist at K Psychology (or as nominated by K Psychology) on whom the parties do consult on at least an annual basis in an effort to improve their co-parenting relationship and/or to discuss the parenting of the children at the parties’ joint and equal expense.
That the parties shall only take the children to the L Medical Centre for ordinary general practitioner visits.
That within twenty-one (21) days the father does by this Order authorise the transfer of the children’s medical files from the M Clinic to the L Medical Centre.
That within twenty-one (21) days the mother does by this Order authorise the transfer of the children’s medical files from the N Medical Centre and the O Medical Centre to the L Medical Centre.
Handover
That in the event that handover does not occur at the children’s school that handover be at a mutually convenient location as agreed between the parties and failing agreement the P Shopping Centre on Q Street.
That the parents shall communicate with each other by telephone and email or text message.
That in the event the children are invited to a party or other special occasion at a time when the children are spending time with the other parent then the mother or father as the case may be shall forthwith upon receiving such an invitation provide the other parent with a copy of such an invitation to enable the other parent to respond to the invitation as they may choose.
That the proceedings be otherwise dismissed.
The appointment of the Independent Children’s Lawyer be hereby discharged.
IT IS NOTED that publication of this judgment under the pseudonym Becklin & Becklin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 2674 of 2017
| MS BECKLIN |
Applicant
And
| MR BECKLIN |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings are about X who was born in 2009 and Y who was born in 2010. They currently live with their parents in a shared care arrangement.
Both children have complex special needs. X is nonverbal and requires a high level of support. Y is on the autism spectrum albeit relatively high functioning.
Both children qualify for assistance through the National Disability Insurance Scheme (‘NDIS’).
The children currently live in an equal shared care arrangement with their parents. The father says the current arrangement is working and seeks to have it continued. The mother does not agree and seeks the primary care of the children and sole parental responsibility.
Common ground
The father was born in 1973 and will be 46 this year. The mother was born in 1975 and will be 44 this year.
The parties commenced cohabiting in 2008. They married in 2008.
X was diagnosed with autism spectrum disorder in 2011. Y was diagnosed with high functioning autism spectrum disorder in 2012.
In 2014 the parties sought marriage counselling.
In late 2015 X commenced attending R School at Suburb S. Y commenced attending in Term 1 2016.
The parties separated in February 2016.
In mid-2016 X commenced attending T School.
In August 2016 the parties attended mediation with U Counselling. Agreement was reached that the children would live with them in the shared care arrangement of four nights, three nights, three nights, and four nights.
In Term 1 2017 Y commenced attending at T School.
On 13 October 2017 the parents were divorced.
On 20 November 2017 proceedings were commenced in the Federal Circuit of Australia by the mother.
In February 2018 the children commenced attending V School.
On 5 February 2018 interim orders were made which continued the shared care arrangement.
During the course of the trial the parties agreed on a number of matters, including:
a)The mother would continue to liaise with the NDIS and any other organisation providing funding assistance on behalf of the children;
b)The parties would take all steps necessary to have the children attend upon the L Medical Centre so that they are attending on one medical practice only. To effect that change steps would be taken to organise the transfer of the children’s notes to the L Medical Centre;
c)The parties would take all steps necessary to arrange for psychological support for Y with Dr E; and
d)The parties would continue to have the children attend upon the following practitioners in respect of their special needs:
In the case of Y:
i)Ms B, speech therapist, or such other therapist as recommended to take her place;
ii)Ms C, occupational therapist, or such other therapist as recommended to take her place;
iii)Dr D;
iv)Dr E, or such other psychologist as recommended by or via F Services; and
v)Any professional provided by the Department of Education, NDIS or any other organisation providing funding assistance for Y’s benefit.
In the case of X:
vi)Mr G, speech therapist;
vii)Ms H, psychologist;
viii)Ms C, occupational therapist, or such other therapist as recommended to take the place of Ms C;
ix)Dr D; and
x)Any professional provided by the Department of Education, NDIS or any other organisation providing funding assistance for X’s benefit.
The parties also agreed to within twenty-one days agree upon a psychologist at K Psychology (or as nominated by K Psychology) upon whom the parties would consult on at least an annual basis in an effort to improve the co-parenting relationship and/or to discuss the parenting of the children at the parties’ joint expense.
The evidence
The mother relied on:
a)Her Amended Initiating Application filed on 26 February 2019; and
b)Her Trial Affidavit filed on 23 August 2019.
The mother gave evidence and was cross-examined.
The mother had issued subpoenas to:
a)Dr D, a doctor the children attend upon with their mother in respect of their autism;
b)Dr W, the general practitioner the father takes the children to; and
c)Ms Z, the director of the autism unit at the children’s school.
The mother’s counsel initially indicated she wished to cross-examine each of these witnesses as hostile witnesses. Objection was taken to this as they were being called by the mother and no evidence had been given to the Independent Children’s Lawyer or the father’s counsel of amongst other things their response to the mother’s request. After some robust discussion, counsel agreed that:
a)The report and notes of Dr D were in evidence before the Court, with the notes having been annexed to an affidavit of Mr Ashley Kent, the Independent Children’s Lawyer. Dr D would therefore not be required;
b)Dr W would not be required; and
c)The reports of Ms Z of the meeting that occurred in April 2018 were accepted into evidence and Ms Z would not be required.
The father relied on:
a)His Response to the Initiating Application filed on 25 January 2018;
b)His Trial Affidavit filed on 28 August 2019;
c)The Child Dispute Conference Memorandum to Court dated 20 April 2018; and
d)The Family Report (‘The Report’) dated 22 March 2019.
The father gave evidence and was cross-examined.
The Family Report was admitted into evidence and Ms AA, the report writer, attended and was cross-examined by counsel.
The parties
It was clear that each party, having realised the significant challenges faced by their children, had made and continue to make extraordinary efforts to do all they can for the children.
The father in response to a question which arose during the discussion as to whether he was on the autism spectrum provided some insight into the pathway they had been on.
He was asked by the Court whether the discussion that he and the mother had had as to whether he was on the autism spectrum (noting there is no formal diagnosis) was because they were looking for a reason as to why X was as he is? “We all were,” he answered. “We went through a lot of self-blame.”
It is not hard to form a conclusion that each party, faced with the issues confronted by the children, has been highly motivated to do all that is possible to help their children overcome their difficulties.
The report writer at the beginning of her evidence commented on how sad it was that such highly motivated and competent parents were unable at this stage to go that extra step and resolve the issues that prevented them from communicating effectively on the business of parenting. I agree with that comment and will refer to this later in these Reasons.
I would note however that the parents have agreed at the Court door to enter into co-parenting counselling with K Psychology or such other psychologist as is recommended by K. Whilst this is something that could have been done some months ago, it is a step in the right direction.
The mother
The mother presented as a motivated and hardworking parent.
The assessment of the report writer that her portrayal of herself:
…as better positioned to be the primary caregiver and sole decision maker…seem[ed] to prevent her from being able to acknowledge, appreciate or support the unique and independent contribution of the father….[1]
[1] See Family Report of Ms AA dated 22 March 2019, 69.
Her assertion that “…the father is fundamentally incapable of co-parenting and that he does not have the ability to manage or to prioritise the children’s special needs” [2] did not appear to be made out.
[2] Ibid, 68.
The mother appeared unfortunately to draw a number of conclusions about matters on which there was limited or no evidence.
She appeared convinced, for example, that the father had denigrated her parenting efforts with the M Clinic that he attended with the children. She referred to the fact that there was an entry on the notes subpoenaed from the clinic that had the words “warning” followed by her name and number, which she took to mean that the father had instructed the clinic not to talk with her. It was not explained why the note included the phone number of the mother, and if she was not to be spoken to, why the note was not more specific. In other words, there were a range of options arising from that note however the mother chose one and could not consider the others.
Attempts were made by the mother to portray the father as autistic. This appears to have been picked up by the report writer where in the Report she noted that:
[A]lthough seemingly sympathetic to the associated personality idiosyncrasies inherent in a diagnosis of autism in relation to the father, the mother nonetheless believed the father lacked the necessary “empathy, patience and sensitivity” required to meet the emotional needs of the two children.[3]
[3] Family Report of Ms AA dated 22 March 2019, 21.
There is no diagnosis of autism of the father. There is only some suggestion that comments were made that he may have some autistic traits when the parties attended upon the necessary specialist for the testing and diagnosis of the children.
There is also some discussion between the parties where the father may have accepted that he had some autistic traits.
Apart from that, there is no evidence upon which I can safely rely.
The mother had difficulty highlighting any positive aspects of the father’s parenting. When asked to comment on this, she did however after some delay note that she and the father both agreed that X will develop. Her evidence was that the father said this when others could not.
I note the report writer’s comment in her Report that:
“…both parties seem to share a common vision for both X and Y, namely for both children to be able to achieve the best possible developmental outcomes, a dream that is not necessarily shared by others in regard to X, with neither parent believing that X has an intellectual disability.”[4]
[4] Ibid, 71.
The father
The father presented, like the mother, as a parent committed to his children.
He acknowledged that he and the mother had different approaches to parenting however considered that this could be used to the children’s advantage.
His answers when questioned on how he approached the task of getting the children to school on time were of interest. He explained how he was working with them and their ability to self-regulate so there was less risk of a meltdown with either child at school. It appeared that he was attempting to develop some strategies necessary to enable his children to establish a routine and self-regulate themselves.
He acknowledged some of the mother’s attributes of a parent including her ability to run and manage the NDIS funding for the children.
He was closely questioned in respect of the mother’s allegations of family violence and I will refer to that when considering the risk to the children of physical or psychological abuse or being exposed thereto.
He was closely questioned about his daughter’s attendance upon her doctor in respect of her complaint of vaginal irritation and the requirement that she have a vaginal swab. His answers in respect of this issue were acceptable, particularly when the line of questioning seemed to imply that he should be either deferring the swab to when the mother was present or, in the alternative, obtaining her consent.
The description of the vaginal irritation and the fact that the child was at the doctors and the doctor considered a swab was necessary did not support a deferral of the child’s treatment on a matter such as this.
His failure to notify the mother of what had occurred however, was a cause for concern and provided an example of the father’s inability to communicate.
The father’s suggestion that the mother had mental health issues was completely unsupported by any evidence. His persistence with this line of reasoning echoed the mother’s persistence that he was less capable of parenting the children due to his autism.
Both parties appeared to be looking for some excuse as to why they could not communicate on the basic business of parenting children with such complex needs.
I accept that both parents were able to take significant steps to address the complex needs of the children however both parents clearly had difficulty in taking any steps of significance to ensure the other parent was across any developments or issues the children faced whilst they were in their respective care.
The report writer
The report writer provided her evidence in a careful and measured way.
The concerns of each parent were addressed and carefully considered prior to any recommendations being made.
Her comment on how both parents were doing an exceptional job parenting children with very complex needs and yet were unable to communicate with each other resonated.
With all of the issues that arose from this lack of communication however she considered the arrangements as they currently stood were working well for the children.
Her observation of the children with each parent showed that they were doing an exceptional job. As she stated in the Report:
It is the apparent competency, commitment and devotion to the children by both parents, combined with the children’s seemingly equally secure bond with each of their parents that raises questions about the need for there to be any change to the existing parenting arrangement, as proposed by the mother. Whilst there is no doubt that there is considerable disharmony between the parties and an inability on both parents’ parts, to parent in a collaborative and mutually supportive fashion, both impress as equally strongly motivated to optimise the children’s development and learning, including effectively liaising with the school on a regular basis, which suggests that their longstanding parental discord is not adversely impacting on the children to the degree that the mother asserts.[5]
[5] Family Report of Ms AA dated 22 March 2019, 71.
Her conclusion that reducing the time with one parent, meant there was a strong prospect of the relationship with that parent decreasing with a strong prospect of more pressure being placed upon the primary parent thereby risking that their whole relationship as well; made sense.
She explained that this was a matter where the primary factor for the children was there. That is, children need to love and to know that they have a loving relationship with each parent. Both parties in this matter offer different strengths and there is a strength in their differences. Different parenting styles could be seen as complementing each other and yet sadly neither parent seems to value the other’s contribution.
She further stated in her Report:
Indeed observations of each of the parents revealed them to be both equally competent and devoted caregivers, a view that appears to be shared by the children’s school. Observations further revealed that both children seem to have an equally strong attachment relationship to each parent.[6]
[6] Family Report of Ms AA dated 22 March 2019, 69.
She notes in her Report that:
If shared care was to change to the mother becoming the primary caregiver and sole decision maker, as proposed by the mother, in circumstances in which there is already a pre-existing lack of support of the parenting relationship with the father, there could be pressure over time to diminish the relationship with the father. In the writer’s view, this is an argument in support of shared care continuing as it is important that the father is not deprived of the opportunity to continue to provide his own unique input into the process of parenting and management of the children’s complex care needs. The optimal maintenance of the children’s relationships with both parents is important given that both children seem to have an equally strong attachment relationship with both parents.[7]
[7] Ibid, 77.
The law
In considering what parenting orders I should make, I have had regard to the provisions of Part VII of the Family Law Act 1975 (Cth) (hereinafter referred to as “the Act”).
Section 60B of the Act sets out the objects of Part VII of the Act and the principles which underlie those objects. The objects are addressed in the considerations the Court must have regard to in s.60CC of the Act.
Section 60B(2) of the Act provides that:
The principles underlying those objects are that (except when it is or would be contrary to a child’s best interest):
(a) children have the right to know and be cared for by both of their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have the right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) the parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act states that: “In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
Section 60CC of the Act sets out how a Court determines what is in the child’s best interests and points to a consideration of the matters set out in sub-ss.(2) and (3) (per s.60CC(1) of the Act).
Those matters will be addressed in these Reasons.
Benefit of a meaningful relationship with both parents
While I have expressed concerns about the mother’s view on the issue, it is not apparent in either parent’s case that they contend there is no benefit in the children having a meaningful relationship with the other parent.
The issue for the Court is how that should be conducted. Furthermore, the Court should also consider whether that meaningful relationship would continue having regard to the comments made by the report writer above.
I acknowledge that the Full Court in McCall & Clark (2009) 41 Fam LR 483 noted with approval the decision of Brown J in Mazorski & Albright (2007) 37 Fam LR 518 where her Honour concluded that:
A meaningful relationship or a meaningful involvement is one which was important, significant and valuable to the child. It is a qualitative adjective not a strictly quantitative one.[8]
[8] Mazorski & Albright (2007) 37 Fam LR 518, 26.
The Full Court went on to conclude in McCall & Clark that:
The Court should consider and weigh the evidence at the date of the hearing and determine how if it is in the child’s best interests orders can be framed to ensure the particular child has a meaningful relationship with both parents.[9]
[9] McCall & Clark (2009) 41 Fam LR 483, 119.
I have a genuine concern on the evidence before me that should the mother have the primary care of the children there is a high potential for the father’s relationship with the children to change for the worse.
In these circumstances I consider the report writer has got it right. I have observed the mother give evidence and formed the view that should primary care rest with the mother, she would have difficulty supporting or promoting the relationship of the children with the father.
The mother had difficulty highlighting any positive aspect about the father’s parenting and under cross-examination confirmed there was nothing positive said about the father in her affidavit.
When presented with facts such as the medical records of the medical practice the father and the children attended and asked to highlight those matters which supported her conclusion that the father had been badmouthing her to the practice, the examples she gave were at best inconclusive. The impression was that if there was a bad interpretation of the matters noted in the records then that was the one taken by the mother over any other possible explanation. There was also a concern that alternative explanations would not even be considered.
The evidence would appear to support an impression that the risk of the children losing their meaningful relationship with their father, should they be in the primary care of their mother, well outweighs any possible detriment in continuing the current arrangements.
The risk to the children of being subjected to or exposed to abuse, neglect or family violence
I am conscious when considering this topic that greater weight should be accorded to it over the benefit of the children maintaining a meaningful relationship with their parents.[10]
[10] Family Law Act 1975 (Cth) s.60CC(2A).
Each party made allegations about the other. The mother made a number of allegations about the father’s conduct during the course of their relationship. Her case outline summarised these to include:
a)Verbal and physical abuse of the mother by the father witnessed by the children;
b)The father’s abuse of alcohol and prescription drugs;
c)The father’s own diagnosis of autism, significant mental health issues and emotional lability leaving him unable to empathise with the children and therefore unable to manage their emotional needs;
d)The emotional and psychological abuse of the mother by the father; and
e)Emotional and psychological abuse of the children by the father by denigrating the mother.
There is no dispute that the mother makes no allegations that she or the children were the subject of physical abuse post-separation.
The mother’s concerns were put to the mother during the course of her cross-examination. I have difficulty accepting those concerns were made out.
The mother was convinced that the father continued to abuse prescription drugs by mixing them with alcohol. The father conceded that he took medication in accordance with his prescription such as Tramadol and blood pressure medication. There was no evidence that he did anything other than take his medication in accordance with the prescription. There was no evidence that he mixed alcohol and the medication in a manner that raised concerns.
The father conceded that when the parties were together there were arguments. He did not however accept the mother’s version of events.
He accepted that he had on one occasion during the course of an argument called the mother a ‘maggot’. He denied the other allegations of abuse.
He accepted that on two occasions he had punched a door however those incidents were eight years apart. On the first occasion the mother was near where he punched the door and on the second occasion she was walking away.
He agreed he had stopped the mother from pointing her finger repeatedly at him and jabbing him in the chest by placing his hands upon her wrists and crossing her arms across her chest whilst moving her away from him. He denied he had lost control and he recalled that during the course of this argument X had walked into the doorway and observed them having their argument.
He accepted that rather than argue he would not speak however would only accept that this withdrawal would only go on for approximately four hours. He denied not speaking for days.
His strategy was to give space so that things would settle down. He was certainly not punishing the mother for not agreeing with him. He was not going to run the risk of being abused. He wanted cooler heads to prevail.
He disputed the mother’s version of events which alleged that he put on a handbrake while she was driving. His evidence was that he put on the handbrake whilst they were stationary so that he could get out of the car. The mother accelerated and the car slid into the other lane.
He accepted that he was not always sympathetic and that the mother when she burst into tears in the course of an argument was at times manipulative.
The evidence provided by the mother and the responses of the father during cross-examination reflected in my view the position of two parents under significant strain facing the end of their relationship and the challenge of meeting the complex needs of their children.
Each it appeared, searched for a reason for the other’s behaviour including the father’s alleged concerns about the mother’s mental health issues.
I do not accept the submission that the mother’s account of family violence should be accepted over that of the father.
I am not referred to any evidence on which I could safely rely to show that the matters complained of by the mother have continued post separation. The matters complained of between the parties appeared situational.
Unfortunately their conflict appears to have impacted on their ongoing ability to collaborate and acknowledge the others in the business of parenting these children with complex needs.
Views expressed by the children
I have noted the discussion of the report writer concerning her interaction with the children. In particular I note her comments in respect of her interview with Y.
The evidence would support a conclusion that the children enjoy and relish the relationship they each have with their respective parents.
The nature of the relationship of the children with each of their parents and other persons
There does not appear to be any significant dispute that each child has a close and loving relationship with each parent.
The mother raised concerns that Y was scared of the father however this was not borne out by the evidence and in particular the evidence of the report writer.
Both parties acknowledge Y is having some difficulties and both parties have agreed to seek psychological support for her. I cannot exclude however that the primary reason for this may well be the parties’ inability to communicate and their ongoing failure to cooperate on the business of parenting.
The extent the parents have taken or failed to take the opportunity to participate in making decisions about major long-term issues for the children
The parties concede that they have an inability to communicate. As a consequence, some opportunities may have been missed by each of them.
They concede that additional support to assist them with this, such as the attendance on K for some co-parenting counselling, would assist them.
Likely effect of any changes in the children’s circumstances
I accept the view of the report writer on the evidence before me that the change sought by the mother, namely that she have sole parental responsibility and primary care, raises a strong concern that the children’s relationship with their father will suffer.
There was little in the evidence of the mother that would suggest otherwise.
On the evidence before me I do not consider that to be in the best interests of the children.
The capacity of each of the children’s parents to provide for the needs of the children including emotional and intellectual needs
I have previously addressed the mother’s argument that the father by reason of the purported diagnosis of autism or the father’s acceptance that he has autism, impacts upon his ability to care for the children including their emotional and intellectual needs. As the report writer commented in her Report that:
the mother’s portrayal of herself as [being] better positioned to be the primary caregiver and sole decision maker seem[ed] to prevent her from being able to acknowledge, appreciate, or support the unique and independent contribution of the father, whose own [autistic traits] … rather than acting as an impediment to his care of [the children] as the mother claims … may well be informing his management of them.[11]
[11] Family Report of Ms AA dated 22 March 2019, 69.
She further states, “Indeed observations of each of the parents revealed them to be both equally competent and devoted caregivers, a view that appears to be shared by the children’s school.”[12]
[12] Ibid.
Criticism was made of the father in the number of days the children were absent whilst they were in his care or late for school. The father’s answer on this issue was that he agreed that attendance and punctuality at school were important.
His approach was to get the children to accept the structure and routine and in the event that they wake in a hyper-aroused state which may lead to a meltdown, to be able to manage this in a way that would enable them to process and internalise their emotions and develop skill structures that will help them with their commitments.
The examples he gave were, for example, the use of water with X and the use of a fish tank to enable him on those mornings where he is somewhat aroused to take some time just contemplating the water and the fish (which he likes) and which has a calming effect on him. With Y the options seemed to be involving her in bike riding which appeared to get her in the frame of mind to cope with school and to reduce any arousal which would then lead to a meltdown.
I accept the comment of Ms AA in her Report where she noted that:
both parents impressed as equally devoted to X and Y and equally committed to [and capable of] achieving the best possible outcomes for them, given both children’s complex and varied special needs as a result of their autism.[13]
[13] Family Report of Ms AA dated 22 March 2019, 45.
She went on to say however their “differing views about care and management of the children’s autism … has generated conflict and distrust … and made them competitive rather than collaborative caregivers.”[14]
[14] Ibid.
Maturity, sex, lifestyle and background of the children
There is no dispute that these are children with complex needs. X is nonverbal however can use an iPad to engage with people.
Y is on the autism spectrum and has her own particular issues.
Both parents are alive to these issues and I accept that they are competent and capable of managing them.
The report writer noted in the Report:
it is unlikely that the level of acrimony between the parents will settle unless both parents can acknowledge and value the contributions of the other. Currently each parent’s capacity to support the other seems limited. If the children are to be protected from their tensions inherent in their relationship, both will need to respect the decisions each other makes in regard to the children when the children are in the other’s care, rather than find fault with or seek to undermine or challenge such decisions. Co-parenting could then become both achievable and sustainable if both parents were able to be genuinely supportive of each other’s care of the children, rather than combative or competitive.[15]
[15] Family Report of Ms AA dated 22 March 2019, 76.
She further notes that:
…it is important that the father is not deprived of the opportunity to continue to provide his own unique input into the process of parenting and management of the children’s complex care needs. The optimal maintenance of the children’s relationships with both parents is important, given that both children seem to have an equally strong attachment relationship with both parents.[16]
[16] Ibid, 77.
Her conclusion states that:
on balance, the benefits of continuing the current equal shared care and shared parenting responsibility arrangement that has been in place for the last two years would appear to outweigh the need to change to a primary carer/sole parental responsibility arrangement on the basis that the parties co-parenting relationship is dysfunctional. Certainly maintaining the status quo will not require [the] two children, who are highly sensitive to change, to adjust to new arrangements or circumstances.[17]
[17] Family Report of Ms AA dated 22 March 2019, 78.
As she notes:
[P]arents who remain challenged in this regard (i.e. in respect of their conflict) also have the option of parallel co-parenting. Over time, parallel parenting may become replaced by a more cooperative co-parenting arrangement. However, given the parties’ ongoing communication difficulties, ‘clear and precise orders’ in regard to the use of one medical practice for the children’s day to day care needs and more detailed orders with respect to special days is likely to minimise opportunities for future conflict and misunderstandings between the parents and protect the children from exposure to their parents’ acrimony.[18]
[18] Ibid, 79.
Equal shared parental responsibility
I accept that save for their inability to co-parent the parties have an extraordinary capacity to provide for their children’s needs.
I acknowledge that a relationship such as theirs may suggest that an equal shared time arrangement is contraindicated however I accept the view of the report writer that this represents the best possible outcome for these children.
Should the mother have sole parental responsibility I have concerns about her ability to include the father when addressing the challenges faced by the children.
The parties and counsel, to their credit, have presented a raft of agreed orders that deal with these issues. I note with concern that the mother having signed and tendered a minute accepting that the children should attend L Medical Centre now appears in the written submissions to seek an order that the children attend the O Family Practice. This is a matter of concern for me and is not addressed in the written submissions. I do not accept that there should be any variation from the agreement reached in these circumstances.
The mother seeks sole parental responsibility for the children. The father and the Independent Children’s Lawyer accept the recommendation of the report writer and submit that the parties should have equal shared parental responsibility.
I have no confidence that the father’s relationship with the children will remain as good as it currently is should the mother obtain the orders she seeks including an order for sole parental responsibility.
I do not accept that the presumption of equal shared parental responsibility is rebutted.
I have had regard to the provisions of section 65DAA of the Act and for the reasons set out above have reached the conclusion that it is in the best interests of the children that the children spend equal time with each of their parents.
The parties live relatively close to each other and I accept that the children continuing to spend equal time with each other is reasonably practicable.
I accept that the current arrangement presents as the best workable solution for the children and neither party promotes a block of 7 days with the children. I therefore accept that the orders which provide for the children to spend equal time with each of their parents should continue.
I do not accept the application is made out by the mother and I would make the orders set out at the commencement of these Reasons.
I certify that the preceding one hundred and thirty-one (131) paragraphs are a true copy of the reasons for judgment of Judge Cole
Associate:
Date: 30 April 2020
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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Remedies
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