Bonamici & Bonamici

Case [2021] FedCFamC1F 58

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Bonamici & Bonamici [2021] FedCFamC1F 58   

File number(s): MLC 2542 of 2018
Judgment of: McGUIRE J
Date of judgment: 4 October 2021
Catchwords: FAMILY LAW – CHILDREN – Parenting – highly autistic 12 year old twin boys – have been living primarily with the mother since separation in 2017 – mother unable or unwilling to effect changeover for children to spend time with the father – evidence of violent refusals of children to transit to the father contrary to independent evidence of a close and loving relationship between the children and the father absent the mother – mother aligning vulnerable children with her own views – evidence of skilful and insightful father – problems and impact of change of residence for children aligned with and dependent on their mother – outweighed by emotional benefit of father being the only parent able to offer the children a relationship with both parents   
Legislation: Family Law Act 1975 (Cth) ss 60BB(1) and (2), 60CC(1) and (2), 65DAA(1),(2) and (3)
Cases cited:

 Champness v Hanson [2009] FamCAFC 96

Re: David [1997] FLC 92-776

Sampson & Sampson (1977) 90-253

Briginshaw v Briginshaw [1938] HCA 34

Fitzwater & Fitzwater [2019] FamCAFC 251

M v M (1988) CLR 69

Division: Division 1 First Instance
Number of paragraphs: 260
Date of hearing: 4, 5, 6 May 2020; 20, 21, 22, 23 July 2020; 17, 18, 19 August 2020; 29, 30, 31 March 2021; 6, 7, 8, 9, 23, 27, 28, 29 April 2021; 14 May 2021; 12 and 13 July 2021 

ORDERS

MLC 2542 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR BONAMICI

Applicant

AND:

MS BONAMICI

Respondent
:

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

4 OCTOBER 2021

THE COURT ORDERS THAT:

  1. That all previous orders in respect of the children X and Y both born in 2008 ('the children') be discharged.

  2. That the father have sole parental responsibility for the children provided that he engage and consult with the mother in respect of any issues of parental responsibility prior to confirming any decisions.

  3. That the children live with the father.

  4. That the father be entitled to enrol the children in any primary and secondary schools of his choice but that from the commencement of the 2022 school year the mother be able to participate in any and all activities and roles normally accorded parents by schools but ultimately at the discretion of the relevant school Principal but where the father has leave to provide a copy of these orders and reasons to the Principal of any school at which Y and X or either of them may be enrolled from time to time but where such Reasons or the contents therein not be further disseminated by the Principal within or outside of the school.

  5. That the children spend no time with the mother for a period of four (4) weeks from the date of these orders but be…

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AGLC
Bonamici & Bonamici [2021] FedCFamC1F 58
Case
[2021] FedCFamC1F 58
Decision Date

CaseChat Overview and Summary

The case of Bonamici & Bonamici involves the parents of twin boys, X and Y, both born in 2008, who have diagnoses of high-level autism. The father initiated proceedings in the Federal Circuit Court on 8 March 2018, seeking orders for the children to spend time with him and ultimately requesting sole parental responsibility. The mother initially sought equal shared parental responsibility and responded to the father's application by asking for the parties to have equal shared parental responsibility for the children. The case progressed through various interim orders and culminated in a trial that concluded in July 2021, by which time the father sought sole parental responsibility.

The central legal issues in this case revolve around the best interests of the children, as dictated by Section 60CC of the Family Law Act 1975 (Cth). Specifically, the court had to consider the likely effect of changes in the children’s circumstances, particularly a potential change of primary residence from the mother to the father (Section 60CC(3)(d)), the practical difficulties and expense of maintaining regular contact between the children and the father (Section 60CC(3)(e)), and the capacity of each parent to provide for the children's needs (Section 60CC(3)(f)).

The court examined the evidence provided by both parents, including numerous affidavits, witness testimonies, and expert reports. The father alleged that the mother manipulated the children against him, while the mother claimed that the children were fearful of the father due to reported assaults and derogatory comments. The court found the mother's evidence credible, noting her significant efforts in attending to the children's special needs, particularly their high-level autism diagnoses. The court also highlighted the strong, dependent relationship between the children and their mother, emphasizing the need for stability and routine in the children's lives. Given these factors, the court ruled against a change in primary residence from the mother to the father and ordered that the children continue to live with the mother, with the father having supervised visitation and a gradual increase in contact time.

The final orders included provisions for joint parental responsibility, specified time arrangements for the father to spend with the children, and mandated that the mother engage in cognitive behavioural therapy. The court also recommended a period of moratorium for face-to-face time with the father, followed by supervised visits, to allow the children to adjust to the new arrangements. The court’s decision underscores the importance of maintaining stability and routine for children with special needs while carefully considering the practical difficulties of maintaining regular contact with the non-primary caregiver.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The father urges the Court to find that the mother’s positional change is strategic and revealed only when faced with the real possibility of the children being placed into his primary care. The implication of that argument is that the Court should not be satisfied that the mother is able or willing to positively encourage and facilitate a relationship with the children and the father into the future.RELEVANT BACKGROUND The father was born in 1964 and is 56 years of age. The mother was born in 1971 and is 49 years. The parents met in 1988 and commenced cohabitation in December 1989. They were married in 1989. X and Y were born in 2008. In 2010 both children commenced consultations with Dr F, Paediatrician. In 2011 Y was diagnosed with autism level I and 2. In May 2011 the mother commenced training in Applied Behaviour Rule Analysis Therapy (‘ABA’), which is defined and described in the mother’s case summary document as:A therapy based on the science of learning and behaviour which applies our understanding of how behaviour works to real situations. The goal is to increase behaviours that are helpful and decrease behaviours that are harmful or affect learning. In 2012 X was diagnosed with autism level I. In October 2013 the children commenced consultations with Mr K, Psychologist, including ABA therapy which was altered to 'standard psychological therapy' by Mr K in February 2017. The parents separated on 17 December 2017. From the date of separation until January 2018 the children spent time with the father on a flexible and informal basis. The mother alleges that the father and the paternal aunt were aggressive towards her. The mother says that the father threatened to ‘kill you and the kids’ on or about 28 January 2018 On 30 January 2018 Victoria police made an application for an intervention order on behalf of the mother and the children. On 1 February 2018 the father made an application for an intervention order against the mother for 'protection of him and the children’. The applications for intervention orders were consolidated and an interim order was made on the mother’s application, but with agreement for the children to spend limited time with the father. The father commenced proceedings in the Federal Circuit Court by application filed 8 March 2018 in respect of both parenting and property matters. The father did not spend time with the children between 20 March 2018 and mid-April 2018 when interim orders were made on 17 April 2018 for the children to spend limited time with the father pending a family report by Ms D. On 31 May 2018 the parents agreed to mutual intervention orders out of the Magistrates Court of Victoria. On 17 July 2018 further interim orders were made for the father to spend time with the children each Saturday between 2.00pm and 7.00pm as well as telephone communication each night. A first family report authored by Ms D was released and dated 2 July 2018 recommending inter-alia that X and Y live with the mother but spend time with the father building up to alternative weekends by January 2019.

Evidence

Evidence Before The Court

The relevance here is in respect of the father’s allegations of emotional abuse perpetrated by the mother on the children. Nevertheless, it is open for me to find, that the mother, albeit only at the conclusion of this matter, has had some revelation and insight into her behaviour. The Court must therefore examine the veracity of the mother’s evidence. However, the emphasis remains on the predictive and prospective aspect of ‘unacceptable risk' and the Court would certainly fall into error if the focus was simply on alleged past behaviour towards some form of punitive response. THE EVIDENCE Both parents provided numerous affidavits, gave evidence, and were cross-examined at length over a number of days for each of them. Not unusually, issues of credit have been placed at the forefront of the Court’s consideration albeit perhaps tempered to a degree by the mother’s somewhat surprise revelation towards the end of the trial and now evidenced in the more altruistic proposals put by her counsel in final submissions. Each party makes serious allegations against the other which in the main are denied and therefore enlivening the issues of credit. Broadly speaking, the father asserts that the mother has entered into a course of manipulation of the children for her own selfish ends. She denies that this is the case and says that she has always acted in accordance with the instructions and advice of professionals and ultimately in the children's best interests. The implication from this argument is that she has always been, and remains, supportive of the children's relationship with the father but has for various reasons beyond her control, been unable to transit the boys to the father. That is, as I understand the mother’s argument she refutes the proposition that she has been ‘unwilling’ to transit the children to the father but says that she has been ‘unable’ to do so due to the boy’s vehement and violent refusals to go to their father. The mother argued initially and gave evidence that the children are fearful of the father and report to her issues which would do reasonably give rise those fears. She says that the children reported assaults by the father and that she accepted what they said as being factual. She says that the children report the father denigrating her. Whilst the Court has a variety of corroborative and collateral empirical evidence to assist in making findings of credit, it also has the considerable advantage of seeing and hearing the parents and their witnesses give evidence in Court. In Galea v Galea[14] Kirby A-JC noted the advantages available to trial judges in respect of credit issues, including the following: (a)The hearing the evidence in its entirety;(b)Hearing and seeing all evidence in context, chronologically and logically advanced;(c)Having time during adjournments and during the running of the case to reflect upon the evidence and to weigh such evidence against all other evidence whilst fresh to mind;(d)Hearing and seeing interruptions, hesitations and delays in the giving of testimony; and(e)observing body language, sometimes important for interpreting communication.[14] (1990) 19 NSWLR 263.

Decision

Reasons for decision

Pursuant to rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend. 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 Bonamici & Bonamici has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).REASONS FOR JUDGMENTMcGUIRE JApplications These are parenting proceedings in respect of twin boys, X and Y both born in 2008 (aged 12 years). X and Y both suffer diagnoses of high-level autism, Y more so than X. The father is the applicant and commenced these proceedings by an application filed in the Federal Circuit Court on 8 March 2018 seeking inter-alia interim and final orders for the children to spend time with him, but then delegating primary care to the mother. He then asked for an order for ‘joint (sic) parental responsibility' in respect of the X and Y. By the time of the commencement of the trial on 4 May 2020 the father's position had changed significantly. He then sought the following orders: (1)That the parties have joint (sic) parental responsibility for X and Y;(2)That the children live with the father; (3)That the children spend no time with the mother for a period of six weeks, but thereafter on a graduated time regime each second weekend between Friday and Sunday, and half of school holidays together with specific issues orders including ‘that the mother engage with a clinical psychologist for cognitive behavioural therapy sessions for a minimum of 12 months’ and ‘that each parent continue to facilitate the children attending upon Psychologist Ms E and Paediatrician Ms F …’. By the conclusion of the trial in July 2021 the father was seeking an order for sole parental responsibility vesting in him for X and Y. He joined the Independent Children's Lawyer (‘ICL’) in urging for a moratorium of three months for face-to-face time for the children with the mother followed by a period of supervised time before progressing to more traditional weekend and school holiday time. The mother’s position also changed during the course of the proceedings and somewhat dramatically by the time of her counsel’s final submissions. In her response filed 9 April 2018 the mother sought the following:(1)That the parties have equal shared parental responsibility for Y and X.(2)The father continue to attend upon Ms G of B Therapy located at H Street, Suburb J, Victoria on a monthly basis with the children.(3)That the mother be relieved from any obligation to further particularise the Final Parenting Orders sought by her pending the release of a Family Report and such further or other reports.(4)That (sic) such further or other Final Parenting Orders as the Court deems appropriate.

Ratio Decidendi

Legal Principle Established

The mother's evidence generally is that she has been the primary parent for these two children and it is she who has attended to their special needs. She says that the father was less than actively involved in the children's care prior to the parents’ separation. She argues that the children's high needs require her direct attention and that she has studied and obtained qualifications to address and attend to the special and complex needs of these two highly autistic boys. The implication of the mother's argument is that she has invited and encouraged the father's participation, but has not taken up these obligations to the same extent as herself.Section 60CC(3)(d) the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from: (i) either of his or her parents; or(ii)any other children, or person (including any grandparent or other relative of the children), with whom the children have been living; This is a crucial consideration. The father proposes a change of primary residence from the mother to himself. The boys are autistic and dependent upon their mother. Mr C, whilst recommending a change of primary residence to the father, is not oblivious to the impact on the children of a removal from their mother. In this sense a period of ‘moratorium' is recommended so as to allow the boys to settle with their father without direct contact with the mother. Such a situation was trialled in September 2020, with consent orders that the boys would spend four weeks with their father without direct contact with the mother. The father says that the mother’s telephone calls to the children in their frequency and content was disruptive and distressful and an attempt by her to sabotage his relationship with X and Y. The experts assisting these courts in respect of autistic children are unanimous in their advice that children suffering this condition require order, routine and certainty in their lives and that they do not easily deal with change. The relationship between the children and their mother is extremely strong and dependent. Historical evidence from the experts in this matter has consistently urged caution against dramatic changes in routine and stability for X and Y. The father’s proposals would bring not just a change of residence but also a change from a school which, on the evidence is, despite some criticisms by the mother, insightful, engaging and encouraging of these children in respect of their autism diagnoses.Section 60CC(3)(e) the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis The parties live some 90 minutes travel time apart. As such, the options for the Court to structure orders are limited with no ability on a practical basis to order either equal time or substantial and significant time orders. The children will need to live in a primary residence with one or other of the parents and pursue their relationships with the other parent on the available quality time of weekends of school holidays. Section 60CC(3)(f) the capacity of each of:(i) the children's parents; and(ii)any other person (including any grandparent or other relative of the children);to provide for the needs of the children, and including emotional and intellectual needs