Buchanan and Gardiner

FAMILY COURT OF AUSTRALIA

BUCHANAN & GARDINER

[2009] FamCA 47

FAMILY LAW – CHILDREN – SPECIAL NEEDS CHILD – Male child 13½ years at trial – Child diagnosed with Asperger’s Syndrome – Child diagnosed also as meeting the criteria for Obsessive Compulsive Disorder – Order made for child to live with mother and spend substantial and significant time with father – Consent orders made in relation to other matters

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DAA, 65 DAC

Goode & Goode (2006) FLC 93-286
Rice v Asplund (1979) FLC 90-725

APPLICANT:

Mr Buchanan

RESPONDENT:

Ms Gardiner

FILE NUMBER:

BRF

5536

2002

DATE DELIVERED:

5 February 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

O'Reilly J

HEARING DATE:

26-29 May 2008 and 7-8 August 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Howe (May 2008)

SOLICITOR FOR THE APPLICANT:

Hartley Healy (May 2008)

THE APPLICANT:	In person (August 2008)
THE RESPONDENT:	In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Cameron

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms McArdle, Legal Aid Queensland

Orders

Living arrangements

The child …, born … February 1995, live/spend time with each of the parties during school terms at all times which they may agree, but failing agreement, or agreed variation, as follows:
(a)with the father from after school on Wednesday until before school on Monday in alternate weeks, commencing in the second week of each school term (regardless of whether the child be with the mother or the father in the second half of any school holiday period) and in the other weeks on Wednesdays from 5pm until 7.30pm; and
(b)with the mother at all other times.
In respect of order 1(a) if in any week the commencing Wednesday or the concluding Monday should be a pupil free day or public holiday, the time be from after school on Tuesday (instead of Wednesday) and until before school on Tuesday (instead of Monday) accordingly.
In respect of orders 1 and 2 the father collect the child from school on each relevant Wednesday (or Tuesday if the Wednesday should be pupil free day or public holiday) and deliver him to school on each Monday (or Tuesday if the Monday is a pupil free day or public holiday).

Changeover

Save as may be provided otherwise (including in the consent orders made on 8 August 2008) and unless otherwise agreed between the parties, for all changeovers, including in relation to school holiday periods, the father or his nominee collect the child from the mother’s residence at the commencement of his time with the father and the mother or her nominee collect the child from the father’s residence at the conclusion of his time with the father.

Discharge of all prior orders except the consent orders made on 8 August 2008

All prior orders concerning the child are discharged, other than the consent orders made on 8 August 2008, which remain in place.

Dismissal otherwise of all applications

All other applications concerning the child otherwise are dismissed.

Liberty to apply

If a dispute should arise between the parties as to the meaning or interpretation of these orders or the consent orders made on 8 August 2008 the parties have liberty to apply, on short notice, by arrangement with the Associate, for clarification.

Independent children’s lawyer

The independent children’s lawyer is discharged.

Particulars of obligations

Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create, the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with these orders are set out in the Fact Sheet attached and those particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Buchanan & Gardiner pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 5536 of 2002

MR BUCHANAN

Applicant

And

MS GARDINER

Respondent

REASONS FOR JUDGMENT

The trial

The trial of this matter, instituted by the father on 1 September 2006, occupied four days in May 2008 and two days in August 2008.

Consent orders/remaining matter

On 8 August 2008, I made final consent orders in respect of all matters in issue other than the narrow, but important, matter of whether the child, born in February 1995, during school terms should spend equal time with his parents, or live with the mother and spend substantial and significant time with the father.

The parties’ final proposals

The parties’ proposals were modified during the course of the hearing. It is not necessary to record the history of the variations. I will therefore set out only the parties’ final proposals.
The child’s mother, Ms Gardiner, ultimately proposed that during school terms the child should spend time with each parent as the parties may agree, but failing agreement, or agreed variation, he should live with her for nine nights in each fortnight and with the father for five nights in each fortnight, after an introductory period of ten nights/four nights until the end of 2008 (now academic), the time with the father to be from after school on Wednesday until before school on Monday in alternate weeks and spend time with the father also on Wednesdays in the alternate week from 5pm until 7.30pm.
The child’s father, Mr Buchanan, ultimately proposed also that during school terms the child should spend time with each parent as the parties may agree, but failing agreement they be assisted by a “superstructure” or “underlying mechanism” of an order comprising one of the following four options:
Option one
An order that the child spend equal time with each parent on the week about basis (seven nights/seven nights) effective from its pronouncement, but with flexibility for the parties to agree a “transitional measure” of, for example, nine nights with the mother and five nights with the father either until the end of 2008 (now academic) or until a time during 2009 when the parties, by meeting together, consider that a move to the week about basis for the longer term is appropriate (an equal time order, but with flexible delayed introduction)
Option two
An order that the child spend nine nights with the mother and five nights with the father for a fixed limited period, for example, the commencement of the second school term of 2009, and with each parent on the equal time week about basis to commence following such period (nine nights/five nights, but self executing progression to equal time)
Option three
An order that the child spend nine nights with the mother and five nights with the father for a fixed limited period, followed by eight nights/six nights for a fixed limited period, and with each parent on the equal time week about basis to commence, say, after the second school term in 2009 or the commencement of 2010 (nine nights/five nights, but self executing staggered progression to equal time)
Option four
An order that the child spend nine nights with the mother and five nights with the father, with progression to equal time on the week about basis, for example, from the commencement of the second school term in 2009 or the commencement of 2010 but only if, in the opinion of Dr M, the child’s treating psychiatrist, that would be appropriate, and if not, there be further (informal) periodic assessment by Dr M such that if he should be of the view that it would be in the child’s best interests to leave the nine nights/five nights arrangement in place, so be it, but making clear that Dr M’s role would not be to replace the Court’s role, but be to assist the parties in their decision concerning the child’s living arrangements (nine nights/five nights, but with progression to equal time by the parties’ decision if, but only if, later advised and the parties agree).
In relation to the father’s proposed options, as set out, I have taken the liberty of adding at the end of each the bold words in parenthesis as a convenient summary form of each option, for ease of distinction. However, such use of short form, for convenience, ought be read only as a “label”, without detracting from the four options as formulated by the father.
The independent children’s lawyer supported the mother’s proposal, based primarily upon the opinion of Ms T, family consultant, that such would be in the child’s best interests.

The consent orders made during the hearing on 8 August 2008

The consent orders made on 8 August 2008 include that the parties have equal shared parental responsibility for the child, that he spend the school holiday periods equally with each of them and make provision for special days and other matters.
Importantly, the consent orders deal with matters concerning the child’s education and medical needs (see pars 10-13 of the consent orders), in recognition that the child is a special needs child; and include a non denigration order.

Relevant background facts

The parties commenced a relationship in 1993.
They lived together between about January and June 1994, in Brisbane.
The father then moved to Canberra for work purposes.
He returned to Brisbane for the child’s birth, at which he was present, and stayed with the mother and the child for about three weeks before returning to Canberra.
Between about March 1995 and November 2001, the father spent about four weeks each year with the child, either in Brisbane, with the mother, or on occasions in Melbourne, where the father’s work between 1996 and 2001 was based.
In November 2001, the father returned to Brisbane.
In May 2002, he commenced proceedings in the Family Court to spend time with the child.
On 16 March 2004, final consent orders were made, which provided that the parties have joint responsibility for the child’s long term care, welfare and development; he live with the mother and (subject to other agreement) spend time with the father, until June 2004 on alternate weekends from 6pm Friday until 5pm Sunday and on Wednesdays from 5pm until 7pm; and from June 2004 on alternate weekends from 6pm Friday until the commencement of school Monday and on Wednesdays from 5pm until 7.15pm; and for half of the school holiday periods; and other orders which I need not set out.
It is common ground that from June 2004 until the trial, about four years, the regime set out in those orders obtained.

The child’s special needs

The child is a special needs child. In 2001 he was diagnosed by Dr O, paediatrician, with “significant” Asperger’s Syndrome, otherwise called Autistic Spectrum Disorder. He has been diagnosed also as meeting the criteria for Obsessive Compulsive Disorder, characterised in his particular case as including compulsive handwashing and avoidance of germs associated with significant anxiety (Dr H, child adolescent and adult psychiatrist, report 29 May 2007, p13). The child has a precise but slow manner of speech, with speech pathology difficulties.
He suffers anxiety, and has expressed fears of being killed by someone, expressed variously as by the father, or by the mother, or by her mother.
The child has a long history of attendance upon treating practitioners, having regard to his particular difficulties.
I will refer below more specifically to the medical evidence concerning him.

Mother’s mental history

The mother has had two voluntary admissions to the Mental Health Unit at the G Private Hospital, the first between 17 and 22 October 2002, and the second between 9 and 14 June 2006.
I will refer below more specifically to the medical evidence concerning her. At the outset, it is proper to observe that the effect of the medical evidence concerning the mother is that her condition is well managed by her and there is no evidence that it poses risk for the child while in her care.

The parties’ education, professions and current living circumstances

Each of the parties is highly intelligent and highly educated.
The mother is a psychologist. She holds a Diploma (1986), a Bachelor of Arts (Hons) from the University of Queensland (1999) and a postgraduate qualification (2006). Although not presently practising as a psychologist, she proposes to establish a practice in the near future.
The father holds a Masters degree from New South Wales, and Post Graduate Diplomas in finance. He is a self employed consultant, largely operating his consultancy from home although on occasions he is required to travel interstate, in particular to Western Australia, where he has a corporate client. The father described his consultancy as one of giving advice to governments and companies in relation to the financial markets.
The mother has not repartnered. She lives at R, a suburb in Brisbane’s inner west, with the child.
The father has repartnered. He lives with Ms L at U, also in Brisbane’s inner west. Ms L is a manager, working Monday to Friday 9am until 5pm but on the “nine day fortnight” basis, with no weekend work.
Ms L does not have children of her own. However, she has nephews living in the Sunshine Coast hinterland.

Notice of child abuse or family violence

On 6 February 2007, the mother filed a notice of child abuse or family violence containing the following allegations:
1)     November 15 2006 [the child’s] Father ([Mr Buchanan]) forced [the child’s] mounth (sic) open by putting both his hands in [the child’s] mouth. The Father tried to stuff food into [the child’s] mouth. The Father told [the child] to stand up and lifted his hand as though he was going to hit [the child]. [The child] was very distressed by the incident and said, an hour or two later, that his mouth was still sore and that he could feel his father’s fingerprints in his mouth. I phoned the Child Advocacy Unit. They suggested I contact the police. The police ([at D]) conducted a video taped interview and said that because the Father’s treatment of [the child] was excessive they would submit a mandatory report to the Department of Child Safety ([at V]).
2)     [The child] has said on a number of occasions that his father has hit him very hard across the lower back. I contacted a child health clinic as I was concerned that this action might do internal damage. The child health nurse suggested that I contact the Child Advocacy Unit (RBH) to discuss my concerns.
3)     The Father has thrown [the child] very roughly out of his room (2006).
4)     In January 2007 [the child] reported that his Father slid a sliding door into him and was not apologetic when [the child] asked why he had done that.
5)     In January 2007, [the child] reported that his Father tried to drag him along on several occasions. [The child] says that his Father pushed on the back of his arm so that if he tried to get away his arm would break.
6)     [The child] reports that he is scared of his Father.

Principles

Children’s best interests paramount

Pursuant to s 60CA of the Family Law Act 1975 (Cth) (the Act), in determining whether and if so what parenting orders in relation to a child should be made, the Court must regard the best interests of the child as the paramount consideration.

Objects and principles underlying objects

Section 60B of the Act provides that the objects of Part VII of the Act, which relates to children, are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children;

and that the principles underlying the objects are that, unless it would be contrary to a child’s interests:
·children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

·children have a 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

·parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

·parents should agree about the future parenting of their children; and

·children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

Determining what is in a child’s best interests

Section 60CC of the Act provides that the Court must consider the matters set out in s 60CC(2) and (3), described as the “primary considerations” and the “additional considerations”.
The primary considerations are:
·the benefit to the child of having a meaningful relationship with both of the child’s parents; and
·the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The additional considerations are too numerous to set out. However, I will make specific reference to them below, to the extent that each may be relevant.

Parental responsibility

Under s 61C of the Act, subject to any orders of the Court, each of the child’s parents has parental responsibility for that child.
Under s 61DA of the Act, the Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility for the child unless there are reasonable grounds to believe that a parent of the child or a person who lives with that parent has engaged in abuse of the child or another child who, at the time, was a member of that parent’s family or that other person’s family, or family violence.

Equal time/substantial and significant time

Under s 65DAA of the Act, if a parenting order provides or is to provide that a child’s parents are to have equal shared parental responsibility for the child:
·the Court must consider whether the child spending equal time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making an order to provide for the child to spend equal time with each of the parents; and
·if an equal time order is not made or to be made the Court must consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making such an order.

Section 65DAA(3) and (4) of the Act provide that a child will be taken to spend substantial and significant time with a parent only if the time the child spends with the parent includes both:
·days that fall on weekends and holidays; and
·days that do not fall on weekends and holidays;

and:
·allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child; and

·allows the child to be involved in occasions and events that are of special significance to the parent,

although regard may be had to other matters.

Section 65DAA(5) of the Act provides matters to which the Court must have regard in determining whether it is reasonably practicable for a child to spend equal time or substantial and significant time with each of the child’s parents including:
·how far apart the parents live from each other; and

·the parents’ current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each of the parents; and

·the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

·the impact that an arrangement of that kind would have on the child; and

·such other matters as the Court considers relevant.

Prior parenting plans

Section 65DAB of the Act provides that the Court is to have regard to the terms of the most recent parenting plan (if any) that has been entered into between the child’s parents if doing so would be in the child’s best interests.

Other provisions

The Act provides several other provisions which may apply in a particular case and to which reference will be made if applicable in this particular case.

Weight

Matters affecting weight are primarily for the trial judge to attribute in the exercise of his or her discretion, subject to any error of law in that exercise.

The evidence

The father relied upon evidence by himself and Ms L.
The mother relied upon evidence by herself and her mother, the maternal grandmother.
The independent children’s lawyer relied upon reports by:
·Dr H, child, adolescent and adult psychiatrist, single expert appointed by the independent children’s lawyer as to assessment of the mother, the father and the child, who provided a report dated 29 May 2007
·Dr M, child, adolescent and adult psychiatrist, the child’s treating psychiatrist, who provided a report dated 8 May 2008

·Dr K, consultant psychiatrist, the mother’s treating psychiatrist, who provided a report dated 21 May 2007

·Dr W, educational consultant and psychologist, who provided a report dated 14 November 2006

·Ms S, the child’s special education teacher at the E State Primary School in 2007, who provided a report dated 4 May 2007

·Ms F, the child’s learning support teacher at the Y State High School in 2008, who provided a report dated 1 May 2008

·Ms D, family consultant, who provided a family report dated 7 February 2007

·Ms T, family consultant, who provided an oral report on Day 1 of the Division 12A hearing, 4 December 2007.

In the independent children’s lawyer’s case, in addition to the evidence of the report writers, to which I have referred, the following persons were called:
·Dr O, the child’s paediatrician
·Senior Constable A in relation to a video tape (ex 2)

·Ms I, an officer with the Department of Child Safety in V.

The independent children’s lawyer also provided a bundle of agreed documents, produced from the subpoenaed documents (ex 1); and tendered into evidence a video tape of an interview of the child by Senior Constable A (ex 2), which exhibit comprises also a transcript of the video tape prepared by the National Transcription Service. The father tendered an extract from P College dated 28 April 2006 (ex 3).
I do not find it necessary to set out, as it were, a record of the evidence, such record being available by reference to the parties’ affidavits to which I have referred, the reports to which I have referred, the documentary exhibits to which I have referred and the transcript of the hearing.
Rather, in what follows, in relation to the matter which I must determine, I will refer to selected parts of the evidence. It is impossible, in a case such as this, to refer to all of the evidence for the purpose of providing reasons for judgment. Thus, it should not be inferred, if I do not refer to any particular witness’s evidence, or any particular piece of evidence, that I have not considered all of the evidence and taken all of it into account.

The child’s best interests

Equal time/substantial and significant time

As I have explained, s 65DAA of the Act provides that if a parenting order provides or is to provide that a child’s parents are to have equal shared parental responsibility for the child, then I must consider whether the child spending equal time with each of the parents would be in the child’s best interests and reasonably practicable, and if it is, consider making an order to provide for the child to spend equal time with each of the child’s parents; and, if an equal time order is not to be made, then I must consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and reasonably practicable, and if it is, consider making an order for the child to spend substantial and significant time with each of his parents.
As I have mentioned, the consent orders made on 8 August 2008 include an order that the parties have equal shared parental responsibility for the child, with effect that s 65DAA is triggered.
The Full Court has said (Goode & Goode (2006) FLC 93-286) that the juxtaposition of s 65DAA(1)(a), (b) and (c) suggests a consideration tending to result in or the need to consider positively the making of an equal time order.
Accordingly, that is how I approach the matter, by considering first whether the child spending equal time with each of his parents would be in his best interests being a consideration tending to result in an equal time order and considering positively the making of an equal time order.
In order to determine this, I must turn immediately to the matters set out in s 60CC of the Act which, as I have explained, are the statutory matters I must consider in determining what is in a child’s best interests.

The child’s best interests – the statutory matters

Section 60CC(2) - the primary considerations

Section 60CC(2)(a) – the benefit to the child of having a meaningful relationship with each of his parents

On all of the evidence, there is both benefit to the child of having a meaningful relationship with each of his parents, and he needs a meaningful relationship with both of his parents. In particular, the mother accepted in her oral evidence that both she and the father have a great deal to offer the child. Dr M, in his oral evidence, referred to his view of benefit to the child of the father having a “definite” presence in his life, and Dr H, in response to a question whether the child would benefit from regular time with the father, as the child’s male role model, even though there may be perceived differences in parenting techniques between the mother and the father, referred to the benefit to the child of being exposed to “both perspectives”.

Section 60CC(2)(b) – the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence

The mother’s trial affidavit set out in detail allegations of the father perpetrating physical abuse on the child.
The father, in his trial affidavit, set out his version of these incidents.
In ex 2, the child described to Senior Constable A his version of the incidents.
One of the incidents, concerning the forcing of food into the child’s mouth (November 2006) was investigated by the Department of Child Safety. (This is the incident described in the notice of child abuse or family violence filed by the mother on 6 February 2007, par 1).
The father, in his oral evidence, said to the effect that he was ashamed in relation to this incident, and explained how it had occurred, in a disciplinary context, accepting however that this was explanation and not excusal. He said he regretted the incident. The Department of Child Safety, after investigation, including ex 2, and other interviews referred to in ex1, to which I need not specifically refer, concluded (December 2006) “no immediate harm indicators are identified at this time”.
MS I, the officer of the Department with carriage of the investigation, was referred in cross examination to a letter from the Department to the mother dated 4 May 2007, advising the outcome of the investigation (mother’s trial affidavit, annexure 1). Ms I confirmed that the letter reflected the Department’s assessment that the child had not been physically harmed and was not at risk of harm in the future “as it appears you are a parent able and willing to provide an adequate level of care and protection for your child”.
The other incidents described in the notice and in the mother’s affidavit similarly appeared to be examples of the father’s physical discipline of the child. Whilst they cannot be condoned, there is no present reason on the evidence to think that there is a need to protect the child from physical or psychological harm in the father’s care or of his being subjected to or exposed to further abuse in the father’s care.
Indeed, the competing proposals of the parties seem predicated upon the notion that further physical abuse is unlikely, the father have learned, over time, of the child’s particular difficulties and the need to treat him with sensitivity rather than with physical discipline.
I have mentioned that in 2002 and 2006 the mother had voluntary admissions to the G Private Hospital. Both Dr H and Dr K addressed this matter. On all of the evidence, the mother’s condition is well managed by her and she does not present any risk to the child.
Indeed, similarly, the competing proposals of the parties seem to recognise this aspect of the matter.

Section 60CC(3) – the additional considerations

The child’s views

The child expressed that he would like to spend more time with the mother than with the father, but more time with the father than at present (that is, as obtains by the final consent order made on 16 March 2004).
The child’s age and level of understanding are such that it is appropriate to have regard to his expressed views.
It is possible, on the evidence, that his expressed views are coloured by a concern to not cause anxiety in the mother rather than reflecting his own genuine views. However, the evidence is insufficient to make a finding in this regard.
There is also the circumstance that, as at the time of the trial, the child’s views as expressed to any expert witness were not recent.

The nature of the child’s relationships

Ms T expressed that it is very clear that the child loves both of his parents and has a positive, reciprocal attachment with each of them.
In the mother’s household, it would appear that the child has limited contact with extended family, being more his maternal grandmother than other relatives; whereas in the father’s household he enjoys a considerable range of activities, including outdoor activities, with the father, the child’s paternal cousins and other extended paternal family members.
There is no doubt that in his early years the mother was the child’s primary carer, and his sole carer for much of the time, so that his primary relationship was with her. However, since the father’s move from Melbourne to Brisbane in November 2001, equally there is no doubt that a strong relationship has developed between the child and the father.

Willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent

Ms T, in her oral report in December 2007, said that the father was the parent “more able to articulate” the child’s need to have an ongoing positive relationship with the mother, she being “more muted” in her views in that regard. However, during the trial the mother demonstrated marked increased willingness and ability to facilitate and encourage a close and continuing relationship between the child and the father, evidenced in part by the shift in her proposal to nine nights/five nights (her original proposal being only three nights with the father, as per the existing consent orders, followed by a proposal of reduced time to two nights, before her final proposal as mentioned); and in part by her oral recognition during the trial that the father is a person able to contribute significantly to the child’s welfare. Aptly, in her oral report, Ms T had explained the mother’s initial reticence as perhaps based upon historical factors. Nonetheless, it must be observed that during the first six and a half years of the child’s life, when the father largely was in Canberra and then in Melbourne, the mother actively took steps to ensure that the child was able to spend time with the father to enable the father/son relationship to develop, and there was later evidence by Ms T that despite the mother’s initial reticence to increase the child’s time with the father the mother had progressed to “seeing things very much from [the child’s] point of view”.
In this regard, it is plain that for the mother the trial process was very beneficial in that she was able to be more directly exposed to the father over several days which enabled her to facilitate her own assessment of him, in particular his genuine interest in the child and his increased understanding of his needs and increased ability to provide for them.
Ms T emphasised in her evidence the need for a “united approach” by the child’s parents toward his management, and that each of them had to “give way a little bit”, in the mother’s case by not being over-protective of the child and in the father’s case by being more sensitive to his difficulties and needs.
By the conclusion of the trial process, by the parties amicable interactions with each other at the Bar table, and in particular their ability to agree the consent orders, I was left with little doubt that each had made considerable progress in their willingness and ability to encourage a close and continuing relationship between the child and the other parent.

The likely effect of change in the child’s circumstances, including the likely effect on the child of any separation from either of his parents or any other child or person (including any grandparent or other relative of the child) with whom he or she has been living

Dr M, the child’s treating psychiatrist, said that the child is able to manage changes in routine, provided that they are “handled correctly” by the adults around him and that although “initial adjustment” is “always difficult”, once the child is in a “stable routine” he ought not experience ongoing difficulty with change, saying that “then he would go on as normal”.
Dr O, the child’s paediatrician, agreed also that the child can cope with change, but it needs to be managed. As to his ability to cope with change from the regime under the existing consent orders to either a nine nights/five nights regime or an equal time week about regime, Dr O said that he “could not make a categorical statement about that”. Dr O said also that “if such a change were planned it would have to be done carefully” and that “an important point” would be consistency of routine such that “to give it the best chance of working well you would be looking at making it as much as you could as consistent as possible within reason”.
Ms T agreed with the proposition put to her that for children with Asperger’s Syndrome “dealing with change is a bit difficult for them” and “they need structure and predictability”.

Practical difficulty and expense

Fortunately, the proximity of the parties’ homes has the result that this is not a significant matter.

The parties’ capacities to provide for the child’s needs, including emotional and intellectual needs

Both parties are attentive to and active in relation to the child’s needs, including his emotional and intellectual needs. In particular, at the trial both displayed great sensitivity to the child’s special needs and awareness as to his particular educational needs. The mother, as a psychologist, and as the child’s primary carer during the time his special needs became apparent, developed an early and particular insight into his difficulties and capacity to provide care for his needs. The father, in contrast, experienced a steep learning curve upon his return from Melbourne to Brisbane in late 2001, in developing awareness and understanding of the child’s particular difficulties, best exemplified, I think, by his early use of inappropriate disciplinary methods. However, I am convinced by the father’s evidence at the trial that in more recent times he has developed a genuine awareness of the child’s needs and the capacity sensitively to deal with them.
The child’s enjoyment of life, happiness, educational fulfilment and development potential are foremost in the minds of each of his parents.

Maturity, sex, lifestyle and background

General

The child is an intelligent male child, 13½ years as at the time of the trial (nearly 14 years now).
As the only child of each of his parents, he has the benefit of focus on him by both of them.
Ms T described him as “an emotionally vulnerable” child.
The maternal grandmother described him as a “gifted” child, “straight forward” in expressing his views and “forthright” in manner.
The video tape interview of the child by Senior Constable A shows him to be intelligent, articulate and thoughtful but having unusual posture and speech.

Medical background

The child’s medical and special needs in relation to his diagnosed Asperger’s Syndrome are fully described in the experts’ reports and oral evidence and do not require specific summary. It is appropriate however to refer expressly to observations as to his psychiatric background and that of his mother and extended maternal family.
Dr M, the child’s treating psychiatrist, described his anxiety as “OCD Generalised Anxiety”. Dr M’s report 8 May 2008 includes:
[The child] was referred because he was experiencing significant anxiety symptoms which had been noticed and were of concern to the paediatrician. In following assessments it became clear that [the child] was suffering from a number of anxiety symptoms which loosely fell into the diagnostic category of OCD Generalised Anxiety on the background of a significant Asperger’s Syndrome. I have seen [the child] on a number of occasions since the intial assessment to provide family psycho-education, anxiety management and social skills training and more recently on 10 January 2008 commenced [the child] on Seroquel 25mg at night as his anxious concerns were increasing and causing him significant distress at that time. Since commencing medication for his anxiety, the anxiety has significantly lessened and he is less troubled by recurring obsessive thoughts and constant fears. It is my understanding that both mum and dad have supplies of the medication and that [the child] takes his medication at night whichever house he is sleeping in.
In his oral evidence, Dr M referred to his notes of the consultation on 10 January 2008 referred to in his report, and confirmed that they recorded that the child “feels unsafe with the father and also with his mother”.
Dr H, the single expert psychiatrist, said in his report 29 May 2007:
[The child] is a very complex young man diagnostically. To summarise him as just having Asperger’s syndrome or an autistic spectrum disorder would be overly simplistic. He certainly also meets criteria for obsessive compulsive disorder on top of a pre-existing anxious and developmentally vulnerable temperament and this is currently under treated. It seems likely that his severe anxiety is one of the most significant factors in impairing his ability to function socially at the current time and this opinion appears to be shared by Dr [W]. There is no doubt that he has a very unusual interpersonal communication style and uses his strengths in some aspects of his language to disguise his significant deficits in other areas. That said I note that on formal IQ test that his verbal performance was in the superior range on some sub tests. He also has a number of quasi-psychotic symptoms and a strong family history of psychotic disorder. These quasi-psychotic symptoms seem to be increasing in frequency and significance over time and bear watching very closely as it is certainly possible that he may develop a psychotic disorder in the future. He does not meet diagnostic criteria for a psychotic disorder at this point in time. (original emphasis)
Apart from the matters the subject of Dr H’s original emphasis, I would draw attention to Dr H’s description of the child’s anxiety as “severe anxiety” (fourth sentence); his reference to the child’s “strong family history of psychotic disorder” (third last sentence); and the observation that “[the child’s] quasi-psychotic symptoms seem to be increasing in frequency and significance over time and “bear watching very closely as it is certainly possible that he may develop a psychotic disorder in the future” (second last sentence). (emphasis added)

Dr O, the child’s paediatrician, who diagnosed his Asperger’s Syndrome and referred him to Dr M, did not provide an affidavit or report. However, in oral evidence he was referred to Dr H’s observation as to the child having quasi-psychotic symptoms and asked whether he had noticed anything of that nature in the child. His response is important:
Now, have you noticed anything of that nature in [the child]?---I’d say that’s referring to some of the issues that have been a concern for a little while now where, I think [the child] refers to them as illusions, where a percentage of – I think it’s sort of someone in the room and – I can’t remember the exact nature of what they were but he was concerned that there was stuff happening that may not have been - - -
Paranormal?---Well, with that, I just – with the term – to illustrate further, the term “psychotic features” would include problems where people perceive, you know, that there might be, you know, like a visual hallucination or an auditory hallucination, they hear things, see things that may not actually be there. It was a little – not quite that clear cut with [the child] from my knowledge. Exactly what this phenomenon was, whether it was a true psychotic feature, hence the term I think “quasi psychotic”.
Quasi. That makes sense?---Correct. And he was – I – it was certainly causing [the child] and his family some concerns so that was one of the reasons why I referred him on to see [Dr M]. (emphasis added)
Otherwise, Dr O said to the effect that if there is a proven family history of psychotic illness that “does increase [the child’s] risk” of “suffering something similar”, that it does not mean, necessarily, that such is “certain to happen”, but rather means that there would be “some increased risk”.
In Dr H’s report, under the heading “Family psychiatric history”, reference is made to one of the mother’s sisters suffering bipolar or schizoaffective illness which has resulted in her seeing psychiatrists over a number of years and that she was quite incapacitated by the illness; to another sister having “suffered from some anxiety”; and to the maternal grandfather having suffered “some kind of post-traumatic disorder following World War 1”.
The mother’s treating psychiatrist, Dr K, described the mother’s history; and Dr H assessed the mother for the purpose of the proceedings, concluding that she did not have significant anxious or depressive cognitions at the time of interview, nor evidence of formal thought disorder or perceptual disturbance. He referred to a past diagnosis in the mother of a major depressive episode and to the circumstance that she “may have psychotic features”, observing “There is certainly a very severe history of psychiatric disorder in her family of mood, anxiety and psychotic types”.
Dr K, the mother’s treating psychiatrist, in his report dated 21 May 2007, referred to her symptoms and diagnosis in relation to her voluntary hospitalisations in 2002 and 2006, including in relation to the 2006 admission, “persecutory ideation” and “suicidal ideation”, which he assessed as a “low grade atypical psychosis” which had occurred “in the context of significant psycho-social stress”, and referred to his opinion that her presentations were explained by “recurrent Brief Reactive Psychosis (DSMIVR Brief Psychotic Disorder)”, occurring “in the context of marked environmental stress and associated with mixed mood and anxiety symptoms”.
In his oral evidence, Dr K said that “Certainly, undoubtedly”, the mother has coped with her condition, and that her insight into her condition is “very sound”.
Nevertheless, in dealing with the child’s “background”, as required by the statutory matter under consideration, I have considered it both relevant and prudent to mention the child’s maternal extended family psychiatric background as well as his own.
Dr O’s reference to the child’s “illusions” as including “someone in the room” (see the transcript extract above) gained particular relevance and context during the break in the trial between May and August 2008, as evidenced by the several affidavits filed by leave on 7 August 2009 (file folios 114-117 inclusive). See, in particular, the father’s affidavit (folio 114), par 11, last sentence.

Educational background

The evidence as to the child’s educational background is important, and I will therefore set out some of it.
The child attended P College at D in 2006, for Year 6. A classroom incident concerning his use of a pair of scissors resulted in his indefinite suspension on 12 October 2006, and subsequently a letter making clear his exclusion. The mother “home schooled” the child for the balance of the 2006 year. In 2007, Year 7, the child attended the E State Primary School. In 2008, in Year 8, he attended his first year of secondary education at the D State High School.
The child progressed very well at P College. However, as events transpired there were behavioural issues, detailed in the material but to which I need not specifically refer.
The child progressed very well also at the E State Primary School in 2007, in Year 7, which school had a special education unit. His special education teacher, Ms S, gave a glowing report in her oral evidence of the child coping very well after an initial settling in period, because of the assistance available to him. She described, however, that the child struggled in his organisational skills (keeping track of notes, pencils, books etc) and emphasised that he needs “consistent management” in the school environment.
On 5 September 2007, the parties had agreed that the child should commence his secondary education at the E State High School in 2008 and on that date I made a consent order that they sign all documents and do all things necessary to ensure that if his enrolment be accepted he commence his Year 8 in 2008 at that school. However, it was soon learned that because the child’s residence was not in the catchment area for that school, he could not attend it.
On 4 December 2007, I ordered that the child commence at the D State High School for Year 8, in 2008 “in accordance with the current enrolment arranged jointly by the parties in November 2007”.
At the time of the trial, the child was progressing very well at the D State High School. A short report dated 1 May 2008, signed by Ms F, the child’s Learning Support Teacher, and Mr R, Head of Department – Student Services, bears setting out in full, given the importance of the child’s education particularly in the context of his specific difficulties.
***CONFIDENTIAL***
REPORT CONCERNING [THE CHILD]
This report is compiled at the request of Legal Aid Queensland
Name:  […]
Date of Birth:  […]/02/1995
Connect Group:  8D
Enrolment Date:  28/01/2008
[The child] has been a student of [D] State High School since the start of this school year (2008), enrolled in year 8. He attends school on a full-time basis, five days per week (see attached attendance record). [The child] has a verified diagnosis of ASD and is entitled to extra support from learning support staff at the school. He is a very capable student who attends most regular timetabled classes. He has access to in-class support during Science lessons and his case manager, [Ms F], is his English teacher.
Teachers report that [the child] is a very courteous and respectful student who is well behaved in class. This has lead to the development of positive teacher-student relationships with each of his classroom teachers. [The child] is able to appropriately express his personal needs (e.g. needing to have a drink of water) and communicate his feelings when he is concerned or does not like how something is going/has gone. [The child] has not attempted to discuss either [the father] or [the mother], or any ongoing court proceedings with any of his teachers.
Teachers report that [the child] is a very bright child who performs above average for his age group in most areas of his schooling. He is generally working well in class and is capable of presenting very good work if given enough time to focus on a particular task. [The child’s] attention in class can fade at times and this can hinder his progress on set tasks, however teachers are cognisant of this and are generally able to regain [the child’s] attention and refocus him on the task at hand. As a result his mid-semester results indicate that [the child] is working at a sound level in most subject areas, with high achievements in Science, Study of Society and Environment, and Home Economics.
According to his teachers, [the child] has maintained an even temperament across all of his subjects throughout the school year. There have been times where [the child] has been anxious or upset in class and this has led to tears in some cases, but this can mostly be attributed to the effects of ASD on his social awareness and stress levels. [The child’s] English teacher and case manager, [Ms F], reported one instance where [the child] behaved in a manner unlike his usual self. It was during an English lesson and [the child] was off-task about half way during the lesson. [Ms F] asked [the child] to show her his work. He then put his hands over his face, placed his head down and looked visibly upset. She asked if he needed some time out, to which he shook his head. [Ms F] continued the lesson and gave [the child] some space. At the end of the lesson [the child] waited behind (his initiative) to speak with his teacher. He stated that school was fine, that it was nothing to do with school. They then discussed coping strategies for managing his distress.
[The child’s] peer relationships remain cordial and students are generally accepting of [the child] within the classroom. [The child] has had difficulty making friends and developing friendships outside of the classroom, however there are a couple of students who [the child] socialises with at lunch times.
[The child] receives support from learning support staff on a weekly basis and maintains regular contact with his case manager, [Ms F], who helps [the child] with schoolwork as well as social skilling and behavioural support. [Ms F] also acts as the main contact point between the school and [the child’s] parents, generally corresponding by phone or email, but at times face-to-face meetings have been held to facilitate the development of [the child’s] Individual Learning Plan.
[The child’s] only absences from school this year have been due to illness, as reported to the school by [the mother]. There have been no recorded incidents resulting in suspension or time-out, either in school or outside of school.
In terms of changing schools, any individual with an ASD will experience difficulty with change, especially a change such as moving school mid-year or unexpectedly.
Should you wish to discuss the contents of this report, or you require more information, please contact either [Mr R], Head of Department – Student Services, or [Ms F], Learning Support teacher on […] during school hours.
At the trial, I was assisted in understanding the content of that report by having observed “[the child] the individual” in the exchanges between him and Senior Constable A, in the video tape ex 2.
Ms F said in her oral evidence that in addition to being the child’s learning support teacher, she also is his English teacher and sees him in five classes in each week. She said that the child has adjusted well and become more settled and confident as time goes by. In relation to whether he had established a peer group of friends, she observed that relationships are “always tricky” for Asperger’s Syndrome children but that he is “experimenting with the social behaviours” and, she felt, gaining in social confidence. She said he spends time in the library with children who have like-minded pursuits, and in the classroom is “interacting effectively”. She emphasised that predictability of routine is important for the child, that “testing boundaries” is not a big issue and that if he is uncertain about school rules, he asks. She said his organisational skills, for the most part, were reasonably sound and that from the commencement of the year until the trial date he had made good progress.
Ms S, the child’s special education teacher at the E State Primary School in 2007, said in relation to his Year 7 schooling that after an initial settling in period the child coped well and rarely needed to be withdrawn from class although it was important that he have “consistent management”, explaining that in her view part of the child’s success was the school’s special education unit as a “safety net”. As at 2007, she said that he still needed “direction” as to, for example, where to write on a page, but that he had learned to discuss tasks with his teachers to “break it down to smaller steps”. She referred also to his tendency to “freely comment” about matters.
Dr W, educational consultant and psychologist, said in his report 14 November 2006 that he had been consulted by the mother “with a request for assistance and advice about to how to move forward in supporting [the child’s] educational needs”. He assessed the child on the Wechsler Intelligence Scale for Children as having general intellectual ability in the high average range (FS IQ111, 104-117 at the 95% confidence interval); and referred to his Verbal Comprehension Index as being in the high average to superior range; Perceptual Reasoning Index as being in the average to high average range; Working Memory Index as being in the average range; and Processing Speed Index as being in the average range. After referring to several other tests administered, he said that when working on some of the subtests the child held his pencil at an average to low level in his right hand in a loose close to standard tripod grip (thumb slightly over shaft), that when using his pencil on paper placed centrally (that is, on his midline) the child did not cross his midline, but instead he moved his left shoulder forward and rotated his upper body clockwise and that often he would hold his head tilted towards his right shoulder.
It is not necessary that I refer to all observations in the report, however, it was noted that the child needs to ask questions to verbalise his thinking. As to “social clumsiness”, Dr W observed that his social skills lack subtlety in that he interrupts without hesitation, asks direct questions and “misses social cues” about when this is appropriate. Dr W said “while he will look directly towards you from a distance he also often looks to one side when being spoken to at close range”; “he has some facility to make limited eye contact if asked” and his “body posture is unusual”, in that “at times he presented as ‘stiff’ and uncomfortable”. He referred to “variability” in functioning as appearing to be a direct result of his level of anxiety.
In his conclusion, Dr W made observations in the context of the potentiality of the child’s return to P College in 2007. However, as I have mentioned, the letter making clear his exclusion defeated that prospect. Dr W concluded with a number of “dot points”, being recommendations, including two which I will mention to which the mother drew specific reference of a day book to pass between home and school to communicate issues “at a micro level” and of ensuring as far as is possible that any new teaching or supervising staff be briefed about the child’s individual needs prior to their contact with him.
Dr W, amongst other conclusions, said:
5. Given the severity of [the child’s] disability his ongoing support will continue to require commitment and flexibility to allow him to learn and to avoid the likelihood of extreme behaviours arising.
…
8. It is important that as a child [the child] understands as well as he is able that his behaviours can have a significant effect on others. However in considering [the child’s] needs it will be important to ensure that as an individual with a clearly defined and significant disability he does not be made to feel responsible for his educational management and its success. (emphasis added)
In his oral evidence, Dr W said there is a need for “consistent strategies in managing [the child] in the school environment”.
It appears that each of the parties, while the child is with them, assists with his homework and other activities.
At the time of the trial, the child had not yet developed a solid peer group, or a “best friend”, in the school environment. There were indications that this may be more associated with his Asperger’s Syndrome, rather than other factors.
Neither parent has any present specific proposal to change the child’s school. However, the mother regards this possibility as “open”, and one for progressive assessment, as to which educational institutions in the future may be of best assistance to him.

The parties’ attitude to the child and to the responsibilities of parenthood

Ms T observed that both of the parties have a strong commitment to the child, and that he is “very much loved” by each of them.
Since the child’s birth, the mother actively has met her responsibilities of parenthood.
Although, in his early years, the father was absent in Canberra, then in Melbourne, for work purposes his decision to relocate to Brisbane in late 2001, at considerable career sacrifice, was because of his recognition that the child needed him in his life, both in the capacity as his natural father and also his capacity as a male role model in his life. Since the move to Brisbane, the father has become self employed with flexibility in his work hours to maximise his availability for the child and to enable him to attend day time school and medical appointments, collect the child after school and assist him with homework and other activities.
Within their respective means, it appears that each party contributes to the child’s financial support.

Family violence/family violence orders

I have dealt sufficiently with this matter.

Whether it is preferable to make the order which would be least likely to lead to further proceedings

In practical terms, this is a difficult matter, highlighted by the father in his submissions, to which I will refer.
However, the child’s particular difficulties to which I have referred have the effect that there may be no order falling into this category.
Indeed, the child’s diagnosis, and his medical and educational history, to which I have referred, have the effect of difficulty in accurate predicability of any order falling into this category.

Other facts and circumstances

It is not necessary in these reasons to refer to the report and oral evidence of Ms D, family consultant, who provided a family report dated 7 February 2007. Ms D confirmed in her oral evidence that she had not seen the child since February 2007. Largely, the parties and the independent children’s lawyer referred to and relied on the evidence of Ms T, who was assigned as family consultant to the matter for the purpose of the Division 12A hearing.
However, though not specifically referred to, I have taken into account Ms D’s observations in the matter.
Ms T, in her interactive oral report 4 December 2007 (annexed to her affidavit filed on 11 April 2008) was asked whether she had been able to formulate a recommendation as to equal time or whether “somewhere between 3 and 7”, that is, 4, 5, or 6 nights with the father may be in the child’s best interests. Ms T said at that stage that she “hadn’t got that far” (ie, to formulate a recommendation) but upon consideration of the matter said “I guess, on balance, I’m not sure I’d go as far as shared care – I mean equal share care”; then, when pressed, Ms T said her recommendation was that the child’s time with the father be “four or five” nights, emphasising her recommendation of “more time with Dad” than at present, but “more time with Mum” overall.
In her oral evidence, given in August 2008, although Ms T conceded it had been some time since she had seen the child for the purpose of her oral report given in December 2007 (her interview with the child being in November 2007) she maintained her view that “more time with the father than at present, but more time with the mother than the father” would be in the child’s best interests, expressing “it would be good for [the child]” if the mother’s proposal were to be adopted. Cautiously, Ms T said that the mother’s proposal (nine nights/five nights) was “at minimum” (of the time the child should spend with the father) but “because of his special needs” she was “probably not convinced about equal shared care all the time”. After considering the matter further, Ms T concluded:
… Nine/five would be a reasonable way to go for [the child’s] sake. As I said, seven/seven I am becoming a little bit edgy at that stage.

Ms T then said:
… I don’t know whether one day makes a difference if six is better than five with dad. I think, on balance, and it’s about mum’s anxieties being settled, that would enhance [the child’s] capacity to cope with being with dad. He enjoys being with his dad. He loves his dad.
Yes?---And I really would reiterate, both parents here have a lot to offer [the child], different qualities, and I think it probably is harder for him at his dad’s place because dad has expectations – more expectations than boundaries, and children have to learn to live with those sort of things in adult life.
Yes?---So he is being provided with life skills, for want of a better word – expression.
…
… Yet he also needs – I’m not saying dad is not nurturing, but mother is very nurturing of him. So, I guess, your Honour, what I’m saying probably is nine-five, in a very convoluted way.
So your recommendation, based upon the interviews that you had - - -?---And hearing what the psychiatrists have had to say as well.
Yes, hearing what Mr Cameron has put to you today?---Yes.
Your recommendation is that in [the child’s] best interests, your opinion is a nine-five arrangement – that’s nine nights with the mother, five nights with the father in alternate weeks?---Yes.
Ms T agreed with Mr Cameron that the five nights suitably would be from after school on Wednesday until before school on Monday in alternate weeks, and recommended also that there be some midweek time after school in the off week, perhaps 5pm until 7.30pm.
Despite able cross examination of Ms T by the father, and her acknowledgement that the child living with the parents on the equal time basis could be “ideal” (“it can be ideal”), Ms T said that in her opinion the parties’ different styles of parenting is “a little bit of a weakness in the system”, confirming “You’re not in that position now. You may in the future be, but in an ideal world, yes, it could be good if he had a 50-50 arrangement. I don’t think we’re there yet”, and “You may never be, because of [the child’s] condition”.
The father explored with Ms T several possibilities underlying the proposed four options ultimately put (subsequently formulated and set out earlier in these reasons) as structured “underlying mechanisms” which may be more suitable as “a long term arrangement”, given that it is “highly likely to be the last time this matter ever reaches the Family Court”. Ms T was firm, however, saying “At this stage, I can’t go beyond where I’m at right now”, and “I think it’s just too premature yet to know what the future holds” and “I think you’d need to see how this pans out”. (emphasis added)
Ms T rejected the mechanism of a “self-executing progression” to equal time:
… I guess what’s occurring to me is the tension could go both ways. If [the child] hasn’t got some certainty at the moment – and he likes predictability and all those things – you’re assuming that he may want to come seven-seven. He may want to go the other way, as well. You won’t know where he’s at. That could make mum more anxious, destabilise [the child] and let him run riot in the middle if he feels there’s a chance he might be able to get his way one way or the other, sort of manipulating things a little. (emphasis added)
Ms T emphasised that the child needs “structure and predictability”, and that whilst it would be “okay” for the parties to agree “further down the track”, the child could “get all anxious” if there is a defined mechanism for future change, saying “if he’s aware … that in another 12 months we might be changing again, he may feel unsettled”, because of want of predictability for him, adding:
… You know, he’ll be confused - - -
Nothing has stopped?---Yes. This dispute, at a subterranean level, could be going on. His mum might be getting anxious. She may want him for longer, and he’ll pick up where both of you are at. (emphasis added)
Ms T rejected also the mechanism of an order providing for a week about arrangement “to provide the certainty he craves” but with flexibility for the parties to “phase in” say from 5 to 6 to 7 nights, saying that she had “concerns about that”. Whilst agreeing that such mechanism would give the child certainty, she said “I’m not sure whether he’d be happy with it”, referring again to the parties’ different parenting styles, adding “seven days is a long time” and “I have concerns about that”.
The father put to Ms T, thus, that the parties’ parenting styles are not as different as may be perceived, and that if there is a requirement to “share [the child]” their styles of parenting might well “move together”. In response, Ms T acknowledged again that she had not seen the child for some time (“since last year”) so that she needed to “err on the [side of] caution of his best interests at the moment”.
Ms T agreed with the father that the perception that his parenting style is “more challenging” and the mother’s “more supportive” might be a distorted perception because of the level of activities engaged in during weekend time the child presently spends with the father, and that if there were equal time there would be sharing of more important routine weekly things, conceding this as a “valid point”.
The following exchange occurred between the father and Ms T as to whether the mother’s opposition to equal time may be because to some extent she relies emotionally on the child, possibly causing him some pressure or stress:
I guess, finally, is it possible that the mother might be opposing equal time with the father – for [the child] to spend equal time with the father because, to some extent, she relies emotionally upon the child in the times which she has with him?---That’s possible.
Do you think that might be likely?---I don’t know. It’s possible.
If it were the case, would that potentially cause some pressure or stress on [the child]?---It would, yes, if it was happening.
Under those circumstances, might it be better for [the child] perhaps to spend more time where that wasn’t occurring, where he was with his father?---It would be, that’s part of the equation, I think.
However, in this context it is important to note that Dr K, the mother’s treating psychiatrist, agreed in his oral evidence that although the mother and the child have a warm and close relationship it is not a pathological relationship.
Ms T was firm in her view also that it was “neither here nor there” whether there be an introductory period of four nights with the father for the balance of 2008 moving to five nights with the father from the commencement of 2009, adding “I don’t see any reason why it would be damaging to him at all, to immediately go to five nights” and “I don’t see any reason why it can’t move to five nights immediately”. Although this evidence was given in the (now academic) context of staggered introduction for the balance of 2008, the tenor of her evidence was that there not be any staggered introduction to the 9 nights/5 nights arrangement recommended by her.

The extent to which the child’s parents have fulfilled or failed to fulfil their responsibilities as a parent

Section 60CC(4) requires a consideration of this matter.
I have referred already to the circumstance that the father, during the early years of the child’s life, was in Canberra and in Melbourne, related to his career. During this period it appears that he did not participate greatly in decisions about the major long term issues concerning the child. Also, during this period it appears that predominantly the time he spent with the child was during his annual holidays, supplemented by other brief occasions and that he may not have communicated a great deal with him. However, as has been mentioned in late 2001 the father returned to Brisbane for the purpose of fulfilling his responsibilities as a parent to the child, to seek a greater role in participating in decisions concerning him and to enable him to spend time with and communicate with him. Since then, as evidenced by the proceedings he instituted in May 2002 (resulting in the final consent orders made on 16 March 2004), and by his institution of the current proceedings on 1 September 2006, the father has more than demonstrated that he has taken the opportunity to be involved in a meaningful way in decisions about the major long term issues concerning the child and to spend time with and communicate with him.
It is not necessary to revisit the mother’s position. It is plain, as already mentioned, that for the whole of the child’s life she has been his primary carer and plainly fulfilled her responsibilities as a parent in relation to decisions about him, spending time with him and communicating with him.
There is not any present indication, on the evidence, that the parties have not or are not fulfilling their obligations to maintain the child.

The submissions

Mr Cameron urged that “none of the evidence” seemed to favour that an equal time order would be in the child’s best interests “at this stage”, and that Ms T’s recommendation should be accepted as according with his best interests “at this stage”, particularly having regard to the need for a “slow and cautious approach”.
The mother urged that the child’s best interests would be met by an order that he spend four nights in each fortnight with the father until the end of 2008 (now academic) then five nights in each fortnight from the commencement of 2009, with dinner on the Wednesdays in the alternate week from 5pm until 7.30pm.
The mother submitted that the father’s proposed mechanism in relation to the “long term position” would not achieve finality of the current proceedings, and distinguished between the parties being obliged pursuant to an order to negotiate in the future, which she said would present difficulty, as opposed to discussion and negotiation by consent, as an aspect of their having equal shared parental responsibility.
The father persuasively and eloquently developed several principal themes. It is not necessary to set all of them out. However, those with great significance, impact and lingering impression include the following:
1The evidence is that the child’s anxiety is such that he needs certainty, not that he cannot cope with change, and that lack of certainty and lack of predictability are key stressors for him rather than change itself.
2There is necessity to consider the long term, as well as the short term. The finality of the order to be made has the effect that if equal time is not ordered now, it may never be ordered, or ever happen, the first because of the unlikelihood of the parties in the future instituting fresh proceedings, and the latter because of what he described (without criticism) as the mother’s habit of procrastination in decision making concerning the child and at times inability to commit to decisions, that is, to make definite as opposed to tentative decisions, because of her anxiety or nervousness (evidenced, for example, by initial indecision as to the child’s schooling, to which I have not specifically referred in the evidence relating to the matter to be decided now).
3To the extent that Ms T’s view in not favouring an equal time order was based upon a consideration of the parties’ different parenting techniques, this was more perceived than real, and in the longer term, if there were an order for equal time the parties’ parenting techniques were likely to become more similar than dissimilar.
4There is a clear need for the child to have him in his life as a male role model, in a real and not token way, in particular because the mother’s parenting style tends to be over-protective.
5If one of the “underlying mechanisms” represented by his proposed four options should not be ordered, it is unlikely that equal time ever would be achieved by the parties themselves. That is, if the order does not have a mechanism leading to an “expectation” in the mother of an ultimate move to equal time it is unlikely ever to happen because in its absence the mother is unlikely to be able to move towards that by agreement.
Other themes included that equal time week about would (1) minimise disruption in the child’s life; (2) give him stability and support and be likely to ease his anxiety and stress; (3) give him greater social opportunities; (4) provide a basis for the necessary joint working relationship between himself and the mother; and (5) maximise the child’s greater sense of security in the more structured environment which he can provide, rather than the mother’s environment, particularly as the child reacts positively to his encouragement and direction. Further, it was put that an arrangement of five nights in each fortnight, for the longer term, would not represent a significant change from the current three nights in each fortnight and thus would not allow the child the ultimate benefit of equal parenting.
The father developed these themes extensively, by reference to ultimate benefit to the child, and the father’s view that in the longer term the mother would not support any increase in the child’s time with him above what the Court orders.
He urged that the child’s expressed views be approached with caution, and be given little weight, as unreliable in the circumstances, because although Dr K’s evidence was to the effect that the child and the mother were not unnaturally close, nonetheless the close relationship may dispose the child to support her views rather than his own so as not to cause the mother anxiety or difficulty, amounting to “implicit pressure”.
He urged that if equal time were ordered the child would be freed from the pressure of expressing a preference and from anxiety associated with that.
He put that in recent times he and the mother have demonstrated the ability to cooperate with each other in the child’s best interests, and that any differences between them in that regard are no greater than in united families in which it is necessary to create solutions around genuine disagreements.
Importantly, in relation to my favouring his proposal of one of the four options as an underlying mechanism for the longer term, the father observed that the weight of the evidence of the experts is not to the effect that a 9 nights/5 nights arrangement is the maximum that the child can cope with. (For example, Ms T referred to 9 nights/5 nights “at minimum”, and said that she was “probably not convinced about equal shared care all the time”).
The father expressed concern as to the possibility, on the evidence, of the mother concealing her own emotional difficulties and anxieties. Although he conceded that the evidence is insufficient for me to make a finding in that regard, he submitted there is sufficient evidence to suggest that the mother’s “patterns of anxiety” impact upon the child and thus may well reduce her ability to care for him.
He urged that the order to be made should be the one which best caters for the child’s need for certainty and should not focus on whether he can or cannot cope with change.
In relation to the longer term, he observed that the child has not expressed that “until I am an adult I would prefer to spend more time with my mother than my father”, so that his expressed views at best can be regarded only for the present and/or short term.
The father then outlined, and made submissions in support of, the four options of underlying mechanism for movement to the longer term, as I have already set out at the commencement of these reasons, with particular reference to Ms T’s evidence and other of the expert evidence, drawing attention to what he described as and submitted was consistency between Ms T’s underlying observations in the case with his model of the four options and proposal that one of them be selected.
In relation to the four options, the father submitted that option 4 would be the best having regard to Ms T’s concerns, and option 1 the best for “simplicity and finality”.
In conclusion, the father said he agreed that if another type of order be made, that is, an order based on other than one of his four options, the parent with less time with the child spend time with him on Wednesday in the alternate week between 5pm and 7.30pm.
In reply, the mother denied the suggestion of having concealed her difficulties or anxieties. Indeed, it is necessary to mention that in part this was the subject of extensive cross examination in particular in relation to whether the mother had concealed relevant matters from Dr H. In my view however this was adequately explained by the mother and it is unlikely there was any concealment for the purpose of the evidence. Further, by way of observation on this point if it is the case that the mother tends to conceal her difficulties or anxieties in the course of her daily life nonetheless as I have mentioned the effect of the medical evidence is that her condition is well managed by her.

Conclusion as to whether the child spending equal time with each of his parents is in his best interests

I have made plain already the requirement of a consideration tending to result in the making of an equal time order and considering positively the making of an equal time order. Thus, that is how I approach the matter.
It is appropriate to take into account the child’s expressed views, having regard to his age. However, as at the time of the trial his expressed views were not recent.
It is significant that there is benefit to the child in having a meaningful relationship with each of his parents; that there are no present indications of the need to protect the child; he has a strong relationship with each of his parents; they each have a willingness and ability to facilitate and encourage a close and continuing relationship between the child and the other parent; the child is able to cope with change, after initial adjustment, provided it is “handled correctly”; practical difficulties and expense is not a significant factor; and the parties each have the capacity to provide for the child’s needs, including his emotional and intellectual needs.
It is significant also, in relation to the child’s maturity, sex, lifestyle and background that he is an intelligent male child, 13½ years at trial (nearly 14 years now) and as such needs a strong relationship with his father as his male role model; that he has special needs to which extensive reference has been made; and the particular medical and educational background which I have outlined.
It is significant that the parties each have a commitment to the child and to their responsibilities of parenthood.
As to family violence, I have made sufficient reference to this, and in particular to the evidence that the father’s earlier inappropriate discipline of the child is not likely to be repeated.
As to whether it is preferable to make the order least likely to lead to the institution of further proceedings, as I have mentioned already, the child’s particular difficulties have the effect that there may be no order falling into that category.
It is significant that Ms T’s opinion, carefully advanced, is that the child’s best interests would be met by the mother’s proposal. There are many positive aspects however to the father’s proposal that one of the four options be selected as the order in the child’s best interests. I have very carefully, and positively, considered the father’s submissions, in light of all of the evidence, and have high regard for their complexity, force and weight. Whilst they were ably and persuasively put, however, I am unable to accept the father’s submission that one or any of the four options comprising his proposal is consistent with Ms T’s underlying observations in the case or her evidence overall as to the child’s best interests. On the contrary, Ms T firmly rejected that an order for self-executing progression (eg options 2 and 3) would be in his best interests because “You’re assuming that he may want to come to seven-seven. He may want to go the other way, as well. You won’t know where he’s at”. As to option 4, the tenor of Ms T’s evidence was that based upon the child’s need for “structure and predictability”, such an order containing a defined mechanism for future change could have the effect that he would be “unsettled” and “confused” and that “at a subterranean level” the dispute “could be going on”. Further, whilst Ms T agreed that option 1 would give certainty, she was firm in her view that she was not sure that the child would be “happy” with it, adding that “seven days is a long time” and she had “concerns” about that because of the parties’ different parenting styles. Although the father put cogent submissions that these may be more perceived than real, and that an equal time order may be likely to minimise the differences, Ms T was firm that the parties’ different parenting styles are “a weakness in the system” and that although equal time “can be ideal” said “I don’t think we’re there yet”, being evidence shortly after her saying firmly that in her view it’s “just too premature yet” to know what the future holds and “I think you’d need to see how this pans out”.

Although it often has been said that there is no magic in a family report, and although Ms T acknowledged, as is the fact, that at the time of the trial (May and August 2008) she had not seen the child since November 2007, there is force nonetheless in her views to which I have just referred and also in her view that the parties may “never” be in the position in which an equal time arrangement in fact would be the “ideal” (although acknowledging it “can” be) “because of [the child’s] condition”.
On balance, having carefully considered all of the evidence, the submissions and the statutory matters that I am required to consider, and having given a consideration to the matter tending to result in the making of an equal time order and having considered positively the making of an equal time order, I am unable to conclude either that an equal time order at this stage is in the child’s best interests, nor an order with a defined or underlying mechanism for the parties to move towards it. Ms T was clear that she could not “go beyond” her nine nights/five nights recommendation “at this stage”. As to the four defined options, options 2 and 3 have the disadvantage of the Court not knowing the child’s circumstances at the time of any ordered self progression at defined times, and options 1 and 4 have the character of the dispute continuing, to use Ms T’s expression “at a subterranean level”. Moreover, Ms T’s evidence was clear that if the child were aware that “in another 12 months we might be changing again”, he may “feel unsettled”, and “get all anxious” or “be confused”.
I am mindful of the need to consider the longer term for the child, as well as the short term, and the father’s concern that if there is no “expectation” within the order made of a move to equal time then the parties themselves ultimately may never be able to move to it, because of the mother’s potential inability to agree it. I am mindful also of the father’s careful submissions as to the lack of likelihood of the matter coming before the Court again so that if an order for equal time, or a mechanism for its introduction not be ordered now, any order I make would not be the one least likely to lead to the institution of other proceedings. However, the ultimate objective is to make the order which is in the child’s best interests and I am not persuaded, on the evidence, that an order for equal time to commence now, nor any ordered mechanism for its subsequent introduction, as proposed by the father, is in the child’s best interests.

Conclusion as to whether the child spending substantial and significant time with each of his parents is in his best interests

I have referred above to Goode & Goode as to the need for a consideration tending to result in the making of an equal time order and considering positively the making of an equal time order in relation to s 65DAA(1). The Full Court went on to say that the same applies to s 65DAA(2).
Accordingly, that is how I approach the matter, in now considering whether the child spending substantial and significant time with each of his parents would be in his best interests.
It is trite to observe that, having determined against an equal time order as being in the child’s best interests, and the father’s proposal, I am left to consider the mother’s proposal, supported by the independent children’s lawyer. Nonetheless, I am required to determine whether a substantial and significant time order is in the child’s best interests.
It is not necessary to repeat the observations as to the statutory matters already made, nor Ms T’s evidence to which adequate reference already has been made. It is sufficient to state that having carefully considered all of the evidence, the submissions and the statutory matters that I am required to consider, Ms T’s opinion as to the child’s best interests, which accords with the mother’s proposal, coincides with my own, such that I have no hesitation in concluding that the mother’s proposal is in the child’s best interests. I note that its primary components (nine nights/five nights) reflect the s 65DAA(3) definition of “substantial and significant time”, in particular when combined with the parties’ consent orders as to occasions and events of particular significance to the child which allow also the parties to be involved in occasions and events significant to them.
Importantly, however, the mother’s proposal also is prefaced with the context that the child spend such time with each parent as the parties may agree, but failing agreement, or agreed variation, in the terms mentioned, namely, during school terms with the father in alternate weeks from after school on Wednesday until before school on Monday and in the other weeks on Wednesday from 5pm until 7.30pm, and otherwise with the mother. The prefacing words in the proposed order have the effect that it would be a matter for the parties to consult each other from time to time as part of the exercise of their equal shared parental responsibility, along with consultations with such experts as they may consider appropriate, to be advised as to whether a change to equal time or even increased time from five nights to six nights with the father may be appropriate in due course. (See s 61B, s 65DAC and the s 4 non exhaustive definition of “major long term issues”). The effect of such an order thus would be that it would remain open to the parties to progress to an equal time order during school terms if as the child’s parents in the future they are able to agree that. In my view, the prefacing words thus also would be in the child’s best interests.
Whilst there are similarities between such an order, and option 4 proposed by the father, there are also subtle but important differences, there not being the burden of “expectation” of change and thus lack of predictability for the child, and there being the advantage of finality of the parties’ dispute now, affording the child the certainty he needs but without any Court defined mechanism carrying the disadvantage of continuation of the dispute “at a subterranean level” because of the inclusion of a Court defined mechanism for change. The “expectation” of future change is a matter which the father urged as important. There is a subtle but real difference between an “expectation” of future change, and its “availability” if the parties are able to move towards it by agreement. Importantly, as observed by Ms T, if in time the parties agree to an equal time arrangement, the mother would be less anxious about such an arrangement with the consequence that the child would be less anxious about it.
I have considered whether the order to be made should include a requirement that the parties, at a particular point in time, for example at the end of the 2009 school year, or when the child turns 15, or some other time, consult and/or take advice as to whether the child should spend equal time with each of them. However, for reasons already explained I do not consider that would be in his best interests, for reasons similar to the rejection of option 4.
I have considered also whether the order to be made should include that the time the child spends with the father be “at least” as proposed by the mother, to give effect to Ms T’s evidence that nine nights/five nights be “at minimum”, and that she was not convinced about equal shared care “all the time”, inferring that equal shared care for some of the time might be appropriate. However, this would provide difficulty if for some reason the parties should need to agree less time with the father at some stage, or for a period, and further would be inconsistent with the underlying basis of an order that the child spend with each of them “all times which they may agree”.

Reasonable practicability

Having regard to my conclusion that an equal time order would not be in the child’s best interests it is not necessary for me to consider whether an equal time order would be reasonably practicable.
As to whether a substantial and significant time order would be reasonably practicable, on the evidence the statutory criteria are met. In particular, the parties’ residences are reasonably proximate; currently they have capacity to implement the arrangement, communicate with each other and resolve difficulties that might arise in implementing it and there is no reason to think their capacity will not continue into the future. As to impact that the proposed arrangement would have on the child, the evidence is to the effect that he will cope with the change, after initial adjustment, provided it is “handled correctly”.

Order

I will therefore order as I have indicated, in accordance with the mother’s proposal, being satisfied that it is in the child’s best interests and reasonably practicable.

Other matters

The consent orders made on 8 August 2008 include orders as to changeover in some respects, but not all. To avoid difficulty, by any hiatus, and to avoid dispute if the parties are not able to agree, I will add a general order in relation to changeover.
Similarly, to avoid dispute, I will include provision for the incidence of public holidays during the school terms.
All other prior orders concerning the child will be discharged and all other applications concerning him dismissed.
The independent children’s lawyer will be discharged.
The parties will have liberty to apply in relation to any dispute as to the meaning or interpretation of the orders.
Finally, I have considered whether, as addressed during argument, it may be desirable that in these reasons I express the view, as the trial judge, that having regard to the child’s special needs the case is one to which Rice v Asplund (1979) FLC 90-725 ought not apply. However, I have decided against that course, primarily because if it were otherwise the finalisation of the current proceedings would be meaningless in effect. Also, there is the circumstance that it would not be appropriate to seek to fetter the future exercise of discretion by another judge. Thus, the Rice v Asplund principle will apply in relation to any future proceedings. However, the child’s special needs and the matters of concern in Dr H’s report, which need to be closely monitored, no doubt will be of relevance in application of the threshold test in respect of any future proceedings, bearing in mind always that the child’s best interests are paramount and that his particular needs may change from time to time.

I certify that the preceding one hundred and ninety three (193) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly

Associate:

Date:

[2009] FamCA 47

5 February 2009

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Remedies

Jurisdiction

Procedural Fairness