Carnegie and Anor and Casey

[2015] FamCA 1034

FAMILY COURT OF AUSTRALIA

CARNEGIE & ANOR & CASEY [2015] FamCA 1034

FAMILY LAW – CHILDREN – application for orders by non-parents – where subject child has significant intellectual and mental health issues – where mother fails to engage in the proceedings – where the father after the proceedings part heard withdraws from the proceedings – consideration as to orders to be made in the best interests of the child – where orders for the child to live with the applicant non-parents supported by the independent children’s lawyer – where the mother spends time with the child by arrangement with the applicant non-parents – where some risk to the child if spending time with the father – where order made for the father to have supervised time or otherwise as agreed between the father and the applicant non-parents.

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

Aldridge & Keaton [2009] FamCAFC 229
Donnell & Dovey [2010] FamCAFC 15
Goode and Goode (2006) FLC 93-286
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483
Potts & Bims [2007] FamCA 394
Valentine & Lacerra and Anor [2013] FamCAFC 53
Yamada & Cain [2013] FamCAFC 64

1st APPLICANT: Ms Carnegie

2nd APPLICANT: Mr Carnegie

RESPONDENT: Mr Casey

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Parramatta

FILE NUMBER: PAC 1958 of 2011

DATE DELIVERED: 25 November 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 29, 30 and 31 July, and 10 September 2015

REPRESENTATION

COUNSEL FOR THE 1ST AND 2ND APPLICANTS: Mr Batey

SOLICITOR FOR THE 1ST AND 2ND APPLICANTS: Conditsis Lawyers

COUNSEL FOR THE RESPONDENT: Ms Snelling

SOLICITOR FOR THE RESPONDENT: Longman Hill Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr O'Brien

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Parramatta

Orders

1. That Ms Carnegie and Mr Carnegie (“the Cousins”) have equal shared parental responsibility for C born … 2004 (“the child”).

2. That the child live with the Cousins.

3. That the child spend time with the Mother, Ms B (“the Mother”) at such times and under such circumstances as agreed between the Mother and the Cousins.

4. That for the purposes of facilitating the child’s time with the Mother, the Mother is to collect the child from and return the child to the Cousins’ residence unless otherwise agreed between the Cousins and the Mother.

5. That the child spend time with the Father, Mr Casey (“the Father”) at such times and under such circumstances as agreed between the Father and the Cousins, taking into consideration any opinion or recommendation from the child’s treating medical practitioners and/or therapists and any view expressed by the child.

6. That the Father communicate with the child by prepaid post.

7. The parties to keep each other informed of their residential address within 7 days of changing same.

8. That the Father be and is hereby restrained from approaching within 100 metres of the Cousins’ residence as it stands from time to time, at any school or place that the child attends for any lessons, training or performance.

9. That the parties are not to criticise or denigrate the other parties or any of the other parties’ families in the presence of or within the hearing of the child.

10. In addition to Order 5 herein, the child shall spend time with the Father as follows:

    (a)       On the first Thursday in June and the first Thursday in December each year with such time to be supervised by QQ Care for a period of two hours;

    (b)       That for the purposes of Order 10(a) the Father shall notify the Cousins in writing no less than 28 days prior to the first Thursday in June and December of his intention to spend time with the child;

    (c)       That if the Father fails to comply with Order 10(b) his time with the child will be forfeited on that occasion;

    (d)       That the Father shall make all arrangements as necessary with QQ Care and shall be solely responsible for meeting the cost of the supervision.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1958  of 2011

Ms Carnegie and Mr Carnegie

Applicants

And

Mr Casey

Respondent

REASONS FOR JUDGMENT

Introduction and background  

1. These long-running parenting proceedings commenced with the filing on 4 May 2011 of a Notice of Appeal to this Court from orders made by the Local Court at R Town, New South Wales on 5 April 2011.

2. The orders at the Local Court were made as a consequence of an application filed by the father, Mr Casey, on 1 April 2011 seeking parenting orders in relation to the child C born in 2004. It appears that the application was heard in the absence of the respondent mother and orders were made by the Local Court by way of a recovery order for the delivery of the child to the father from the mother Ms B.

3. The Notice of Appeal was filed by the maternal cousin Ms Carnegie.

4. The appeal was before Loughnan J on 6 June 2011. On 7 June 2011 the Court published reasons for judgment (Carnegie & Casey andAnor [2011] FamCA 748) and made orders as follows:

   1.That, by consent, the [R Town] Local Court Orders made 7 April 2011 are vacated.

   2.That the solicitor for the applicant notify the Legal Aid Commission within 24 hours of the below orders and that the parties provide copies to the Legal Aid Commission of all relevant applications, affidavits and other documents on which they seek to rely within 7 days from today’s date.

   3.That these proceedings are adjourned to 10am 8 August 2011for consideration of:

   a)an appointment of a single expert or single experts in the proceedings; and

   b)for consideration of any other interim issue of which each of the parties and the Independent Children’s Lawyer is given adequate notice.

   4.That the parties shall note the obligations created by the Orders made this day AND the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Fact Sheet.

   THAT PENDING FURTHER ORDER:

   5.That [Ms Carnegie] have sole parenting responsibility for the child [C] born …, 2004 (the child).

   6.That the child live with [Ms Carnegie] and [Ms Carnegie] have the day to day care and responsibility for the welfare of [the child].

   7.That the child spend time with the 2nd Respondent [Ms B] at times as agreed between [Ms Carnegie] and [Ms B].

   8.That the child spend time with the 1st Respondent [Mr Casey] at times as agreed between [Ms Carnegie] and [Mr Casey], provided that during all periods that the child spend time with the 1st Respondent, be at a contact centre or supervised by a person acceptable to [Ms Carnegie] and the Father.

   9.That the 1st Respondent have telephone contact with the child once per week at times as agreed between [Ms Carnegie] and the 1st Respondent, and failing agreement on each Sunday between 5pm and 6pm and for that purpose the 1st Respondent provide to [Ms Carnegie] a telephone contact number and [Ms Carnegie] will cause a telephone call to be made to implement the telephone contact.

   10.That [Ms Carnegie] do all things and give all necessary authorizations to make available to the 1st and 2nd Respondents reports on the child’s education health sporting and social activities, as and when any reports are available.

   11.That an Independent Children’s Lawyer be appointed for the representation of [C] and the Legal Aid Commission of NSW be requested to arrange the representation.

5. His Honour’s Reasons for Judgment reveal a number of relevant circumstances at that time:

   a)that in the period leading up to the orders obtained by the father the child had been living variously with the father, the mother, the mother’s former brother-in-law and the mother’s cousin, the present applicant, and her husband;

   b)that the child had been diagnosed to have Asperger’s syndrome, a condition on the autism spectrum, ADHD and learning difficulties and had been prescribed Ritalin and Melatonin;

   c)the mother, then aged 42, suffered from fibromyalgia, a degenerative syndrome that causes constant fatigue and pain and suffered from stress-related anorexia. At the time of the hearing the mother had moved to live with the applicant in her home;

   d)the father, then aged 40, had suffered a traumatic brain injury in a motor cycle accident at speed in 1986 and subsequently had spent periods in psychiatric hospitals, the last then being in 2010. At the time of the hearing the father resided at T Town in the U Region of New South Wales;

   e)the father’s two older children had been removed from his care by the Department of Family and Community Services;

   f)the applicant maternal cousin was then aged 37.. Her husband was then aged 37. The applicant and her husband had two children who were then aged 15 and 14. The applicant and her husband at the time of the hearing resided at V Town on the D Region of New South Wales.

6. On 18 June 2012 orders were made by consent appointing Dr KK as the Single Expert in the proceedings.

7. On 18 December 2012 the Registrar made trial directions from which it was apparent that the mother had failed to engage in the proceedings. The proceedings were listed for final hearing to commence on 11 March 2013. That final hearing did not proceed. On 19 March 2013 the applicant’s husband Mr Carnegie was joined as a party.

8. On 13 June 2014 the respondent mother filed a Notice of Discontinuance in relation to her response in the proceedings. She thereafter has taken no part in the proceedings.

9. On 16 June 2014 the proceedings were further adjourned to 28 July 2014 with the Court noting:

   A. There has been a recent complaint by the child in relation to sexual abuse by the Father communicated by the child to the child’s treating psychologist and that the child will be interviewed by the Department of Family and Community Services and JIRT later this month.

   B. The purpose of the adjournment is to facilitate documents relating to that complaint and its investigation being made available on subpoena.

   C. The Father has spent no time with the child as contemplated by orders made in May 2013 by reason of the unavailability of his Mother to assist in supervision.

   …

10. On 8 December 2014 by consent an order was made for the preparation of an updated Single Expert report by Dr KK and in anticipation of that report being received trial directions were made for the matter to be listed for hearing.

11. The updated Single Expert report by Dr KK was released by the Court on 30 June 2015 with the proceedings listed for hearing commencing on 29 July 2015.

12. The hearing commenced on 29 July 2015 and on 31 July 2015 the proceedings were adjourned part-heard to 10 September 2015 so as to facilitate the oral evidence of Dr KK. Otherwise the evidence of the parties had been completed.

13. Upon resumption of the hearing on 10 September 2015 the Court was informed by the legal representatives for the father that he had withdrawn their instructions and that they had been informed that the father no longer wished to participate in the proceedings. On that day judgment was reserved to a date to be fixed without hearing any further evidence.

The issues defined

1. At the commencement of the trial it was conceded by the father that the child should live primarily with the applicants, that the applicants should have sole parental responsibility but provide information to the father and that the continuation of home schooling was not an issue.

2. The primary issues for determination were as to the child’s time with the father and on what conditions such time should take place.

The proposals

1. At trial the applicants relied upon the following documents:

   a)further amended initiating application filed on 5 August 2014;

   b)affidavit of the applicant Ms Carnegie filed 30 June 2015 and her updating affidavit filed on 28 July 2015;

   c)affidavit of applicant Mr Carnegie filed on 30 June 2015;

   d)affidavit of Dr P filed on 28 July 2015;

   e)affidavit of K filed on 30 June 2015;

   f)affidavit of Prof MM filed on 28 July 2015;

   g)affidavit of Ms NN, occupational therapist, filed on 30 June 2015;

   h)affidavit of Mr OO filed on 30 June 2015;

   i)affidavit of Ms PP filed on 20 May 2011;

   j)affidavit of J filed on 23 May 2011;

   k)affidavit of Ms G filed on 17 June 2011;

   l)affidavit of Ms F on 4 July 2011.

2. On 10 September 2015 the applicants and the Independent Children’s Lawyer (“ICL”) provided to the Court an agreed minute of final orders sought by them (Exh Q). Those proposed orders in summary provided:

   a)that the applicants have equal shared parental responsibility for the child;

   b)that the child live with the applicants;

   c)that the child spend time with the mother at such time and under such circumstances as agreed between the mother and the applicants;

   d)that for the purposes of facilitating the child’s time with the mother, the mother shall collect the child from and return the child to the applicant’s residence unless otherwise agreed between the applicants and the mother;

   e)that the child spend time with the father:

   i)on the first Thursday in June and the first Thursday in December each year with such time to be supervised by QQ Care for a period of two hours and that for the purpose of this order the father shall notify the applicants in writing not less than 28 days prior to such days of his intention to spend time with the child and in default of him doing so such time shall not occur;

   ii)that the father shall make all arrangements as necessary with QQ Care and shall be solely responsible for meeting the cost of supervision; and

   iii)otherwise at such times and under such circumstances as are agreed between the father and the applicants, taking into consideration any opinion or recommendation from the child’s treating medical practitioners and/or therapists and any view expressed by the child;

   f)that the father communicate with the child by prepaid post;

   g)that the parties keep each other informed of their residential address within 7 days of any change to same;

   h)that the father be restrained from approaching with 100 m of the residence of the applicants from time to time and from any place or school that the child attends for lessons, training or performance,

   i)that the parties are not to criticise or denigrate the other or any of the other’s families in the presence of or within the hearing of the child

3. During the course of the trial the father provided a minute of final orders sought by him (Exh G) and in summary the father proposed:

   a)that the child spend time with the father on the third Saturday of each month from 10.00 am to 2.00 pm for three consecutive months at E Facility, D Region with the cost of such supervision to be shared equally between the applicants and the father;

   b)that thereafter for a further period of three consecutive months on the third Saturday of each month unsupervised from 10.00 am to 4.00 pm with the child remaining within 20 km of the applicant’s residence;

   c)that thereafter on the third weekend of each month from 10.00 am Saturday to 12 noon on Sunday with the child remaining within 50 km of the applicant’s residence;

   d)that thereafter on the third weekend of each month from 10.00 am Saturday to 4.00 pm Sunday with the child remaining within 100 km of the applicant’s residence;

   e)that thereafter:

   i)during each Term 1, Term 2 and Term 3 school holidays from 10.00 am on the first Saturday until 4.00 pm on the following Saturday; and

   ii)during the Christmas school holidays from the third Saturday in January at 10.00 am to the following Saturday at 4.00 pm;

   f)that changeovers occur at the applicant’s residence or at such other place as may be nominated by the applicants;

   g)that the father complete the course conducted by ASPECT for parents within 12 weeks from the date of orders;

   h)that the applicants obtain a referral and attend a child psychiatrist for the child within eight weeks from the date of orders;

   i)that if the child becomes distressed during the father’s time, the father shall return the child to the applicants;

   j)that without admission, the father shall use no corporal punishment on the child;

   k)that the applicants shall sign all documents and do all things necessary to ensure the father receives or is allowed to access all school reports, other educational and extra-curricular activity information for the child and all treating medical practitioners and therapeutic providers appointments, reports clinical notes and documentation;

   l)that the father have telephone, email, Skype or other audio-visual communication with the child each Sunday between 5.00 pm and 6.00 pm.

4. At trial the father relied upon:

   a)his second Amended Response filed on 24 July 2015 subject to the orders sought being amended by Exhibit G;

   b)his affidavit filed on 23 July 2015;

   c)the affidavit of Ms M filed on 27 August 2015;

   d)the affidavit of Ms RR filed on 24 July 2015;

   e)the affidavit of Ms A Casey filed on 23 July 2015.

Context

1. The early background to this matter was captured by Loughnan J in his Reasons for Judgment referred to above as follows:

   7.[The child] was born on … 2004.  He has been diagnosed to have Asperger’s Syndrome, which is a condition in the autism spectrum, ADHD and some learning difficulties.  He had been prescribed Ritalin and Melatonin. 

   8.As to the relevant adults, the mother was born on … 1968, so she is 42 years of age.  She suffers from a condition called fibromyalgia, a chronic degenerative syndrome that causes constant fatigue and pain, and she has stress-related anorexia, she says.  She doesn’t have paid employment.  I think she might be in receipt of a disability pension.  As of 20 May 2011, she lived in [R Town] but I understand she since moved to live in with the [Carnegies] at [V Town] on the D Region.  The mother has two older children, [J] who is 18 and [K], 16. 

   9.The father was born on … 1970.  As of the date of hearing he was 40 years of age.  In 1986 he had a motorcycle accident.  He said in one of the hospital reports that he hit a traffic pole at 180 kilometres an hour.  The accident, according to one version of events, put him in a coma for about two months and left him with a brain injury.  He spent time in psychiatric hospitals in 1999, 2005, 2009 and 2010. He is not currently in paid employment but he has sporadically had paid employment.  He has two other children [Q] and [Ms H].  I gather they were both removed from his care by the Department of Community Services.  I understand that [Q] was subsequently adopted by his foster parents and now lives in the Country O.  [Ms H] is 21.  She lived with her father and the mother in the proceedings for a period from 2004.  [Ms H’s] partner is [Mr W] and they have a son, [X], who is one and I understand that [Mr W] has another child.

   10.The mother and father commenced a relationship in December 1998 and last separated in September of last year. 

   11.[Ms Carnegie] was born on … 1973.  As at the date of hearing she is 37 years of age.  She is a registered nurse and midwife and is the mother’s first cousin.  [Mr Carnegie] was born on … 1973 and as at the date of hearing was 37 years of age.  He is a [health professional] and he married to [Ms Carnegie] in 1993.  They have two children, [Y] and [Z], who are 15 and 14 years of age respectively. 

   12.As to the background facts, I don’t think any of this is controversial.  The material is quite voluminous and some of the affidavits are like ships in the night.  So it may be that there is some of the detail that is incorrect but the gist of it is right.

   13.The parents and the mother’s children, [J] and [K], started living together in about 1998.  In 1999, the father was admitted to [AA Hospital] at [R Town] under the Mental Health Act having behaved irrationally and threatened a friend with a knife.  In January 2000 [J] and [K] left to live with the mother’s parents.  the child was born in … 2004 and at that time [J], [K] and the father’s daughter [Ms H] were living with the parents.  In August 2005 the mother placed [the child] with [Ms Carnegie] for two months.  At about that time the father was admitted to [BB Town] Hospital after the mother called the police.  He was returned to live with the mother, [J], [K] and the child at [CC Town] on the D Region.

   14.The mother says that the father became angry, that there were problems with neighbours and there is some evidence from [Ms H] about that.  And she said the family moved to live with the [Carnegies for two or three weeks and then moved to the [R Town] district.  In January 2008 [J] moved out to live with his grandparents.  In October 2008 the father and [K] had an argument over the washing up.  The police report has it that the father told [K] to fuck off and she did.  He drove after her and forcibly dragged her into his car.  He was aggressive with the police.  [K] ultimately refused to give evidence and the mother screamed at the police for breaking up the family.  [K] then, too, moved in with her grandparents.

   15.The parents separated in November 2008.  Initially, [the child] lived with the father until January 2009.  The mother says that the father was reported to the Department of Community Services for inadequate care of [the child].  The mother then moved back in and a couple of weeks later the father moved out, leaving [the child] with the mother.  [The child] was placed in temporary care by the Department of Community Services in early 2009 and was returned to the mother in September 2009.  In December 2009 the father approached the [DD Centre] at the [R Town] Hospital saying he was angry at everything, depressed, that he was not taking his Aropax because he couldn’t afford it and because he forgot.

   16.In March 2010 the mother couldn’t cope so she placed the child with her brother-in-law, [Mr Q].  He is a truck driver and lives at [EE Town].  The father was also living with [Mr Q] at that time and the mother said that [the child] initially did well. She particularly wanted him to attend a small school at [EE Town]; I think there is a mention of there being nine students.  On 8 June 2010 the father was admitted to [AA Hospital], [FF House], at [R Town] and was discharged on 18 June 2010.  He was admitted seeking help.  He expressed suicidal ideation, thoughts of driving into a tree.  He was brought in by members of his family.  He admitted to a significant anger management problem, that he lost control easily, that he worried excessively and that he was missing his son, [the child].

   17.In July or August 2010 the father and [Mr Q], this is the mother’s brother-in-law, had a falling out and the father moved out of his premises; leaving [the child] there.  The mother says she was worried about [the child’s] care with [Mr Q] and she approached [Ms Carnegie] to take the boy.  She was not able to negotiate that with [Mr Q].  [Mr Q] says that he received abuse and threatening emails from the mother. The mother said she collected the child from [Mr Q].  [Mr Q] and [Ms H] said that, in fact, the child was snatched from [Ms H]’s partner’s car when [Mr Q] arranged for [Ms H] and her partner to take [the child] into town to spend time with the mother.  This happened on 25 January 2011. The mother placed the boy with the [Carnegies].

   18.[Mr Q] approached the [R Town] Police and he says that they told him to go back to the rat hole that he lived in.  Suffice it to say, he didn’t have any joy with the [R Town] Police.  The [Carnegies] then caused [the child] to see a [Dr P], a paediatrician, and to have his eyes tested.  [Ms Carnegie] says [Dr P] attended on the child on 7 February and there was a follow-up appointment on 23 March.  [Dr P] says he is a consultant paediatrician.  His diagnosis was ADHD on Ritalin, previous diagnosis of Asperger’s syndrome, learning difficulties, significant social deprivation and suspected abuse, recent relocation to D Region, now in foster care. He recorded:

   I was pleased to meet [the child] today, aged six years and seven months with this new foster carer, [Ms Carnegie].  [The child] only recently moved to the D Region last month.  [Ms Carnegie] is the first cousin of his birth mother, [Ms B].  [Ms Carnegie] is currently in the process of applying through the Courts to become his legal guardian. 

   19.I don’t know that at that stage there had been any application made anywhere.  Now, what [Dr P] says must simply be what [Ms Carnegie] told him.  He went on:

   [The child] was previously under the care of [Dr AA], [R Town]- based paediatrician.  He had been diagnosed with Asperger’s syndrome.

   [The child’s] behaviour is difficult to interpret in the context of probable emotional and physical abuse.  Certainly many of his behaviours that I witnessed today could be explained as adaptive as opposed to autistic, in other words reaction to what’s happened to him.  His diagnosis of ADHD does seem to be borne out by his witnessed inattention and clinical improvement on Ritalin.

   And then in March, 23 March:

   On examination [the child] again a high energy and engaging little boy.  He clearly had a short attention span and significant hyperactivity.  His weight was up.

   And there was an agreement to recommendations for the child to be changed to a slow-release stimulant, Concerta, presumably instead of Ritalin, 27 mg a day, and to increase his melatonin.

   20.The father attempted to have [the child] returned. Ultimately, he instructed a solicitor who filed for residence and a recovery order at the [R Town] Local Court on 5 April 2011.  On 7 April 2011 a Magistrate granted those orders ex parte and apparently on a final basis.  The recovery order was executed and the boy was given to the father. 

1. The applicant, Ms Carnegie, is 41 years of age. She is qualified as a health professional and is employed at BB Town Hospital, currently working shifts on Thursday, Friday and Saturday nights. Her husband is the second applicant Mr Carnegie and he is employed as a health professional at BB Town Hospital. They were married in 1993.

2. The applicants have two children at the time of trial aged 19 and 18 with both children attending university and continuing to reside with the applicants. The former respondent mother’s elder daughter K who is now 19 years of age also resides with the applicants and is attending TAFE. She has been in the household since January 2014.

3. At the time of trial the child the child was just 11 years of age. The child had resided with the applicants for two periods prior to the interim orders made by Loughnan J. The first was for about three months when the child was about 12 months of age and the second from 25 January 2011 until the child was removed from the care of the applicants by reason of the recovery order made at the R Town Local Court.

4. To the observation of the applicants, when the child commenced to live with them in January 2011 the child lacked social skills. He was not aware of basic hygiene, was unable to dress himself and did not know how to brush his teeth. The child did not know how to use a knife and fork. The child complained of being afraid of the father and of being hit by the father with a belt.

5. The mother is a disability support pensioner who lives near the applicants on the D Region of New South Wales. The mother continues to suffer from fibromyalgia and the applicants understand that she suffers from some depression and anorexia as a consequence. The child spends time with the mother on one day each fortnight by arrangement with the applicants.

6. To the applicant’s observation the father suffers from significant memory loss, impaired communication skills and significantly reduced impulse control. In 2010 the father was admitted to AA Hospital, the psychiatric unit attached to R Town Hospital. To the applicant’s observation the father has a significant difficulty in maintaining appropriate telephone communication with the child.

The child

1. Over a period the applicants have observed the child to exhibit adverse behaviour either prior to or after communication or contact with the father. The child’s behaviour has presented significant challenges to the applicants over a long period.

2. The child has been engaged by the applicants in significant diversional and occupational therapy. The child had initially been seeing a psychologist on a weekly basis since early 2013 which, by mid-2014, was reduced to fortnightly and more recently to about monthly.

3. The child is also engaged on a regular basis with an occupational therapist who reports that the child has multiple diagnoses including ADHD, ASD, learning disability, reactive attachment disorder and anxiety, with the child as a result attending psychology, music therapy and social skills groups.

4. The child is medicated and the applicants report that the child’s day-to-day functioning in the absence of medication is extremely poor.

5. The child participated in a cognitive assessment in mid-December 2014 with the general conclusion that the child’s IQ falls within the borderline – low average range at the time of assessment and that the child would need ongoing support to cope with academia. The assessment demonstrated that while the child’s working memory abilities are average, his qualitative reasoning and knowledge are much lower than what might be expected for his age.

6. The child was reviewed by his treating paediatrician Dr P on 1 May 2015. The paediatric report observed:

   [The child] has extreme ADHD symptoms that remained debilitating despite treatment with multiple medications. His violence and behaviours improved on starting Risperidone late 2013 but [The child] remains high intensity and difficult to manage……(The child exhibits) deteriorating impulse control, possibly coinciding with his advancing puberty. Things escalated recently with him inappropriately touching a younger boy in a Park, in an incident that sounded more impulsive than calculated or sinister. A JIRT investigation was initiated last year after [The child] reportedly disclose details of inappropriate touching while he was in the custody of his father. The social context remains complicated with [The child]’s custody being challenged by his father… [The child] continues to eat well and his growth is on track..

   [The child] remains one of my most extremely inattentive and impulsive patients. His impulsivity sounds to have escalated recently coincident possibly with deterioration in his sleep and his early puberty. I suggested increasing his Concerta 72 mg and splitting his Risperidone dose to give a larger dose at bedtime. Catapres 100mcg could be added to improve his sleep if needed. He will remain on Fluoxetine 20 mg daily. I will see him again in 6 months in the absence of new issues.

7. In his oral evidence Dr P, general paediatrician, expressed concerns that the child’s behaviour could be adversely affected for days or even weeks in the event that the child’s medication regime was to become irregular or doses missed. In relation to the child’s reactive attachment disorder arising from his earlier care circumstances, Dr P was clear that the child requires stability, both emotional and physical. He was concerned that the child’s introduction into mainstream schooling could be a disaster without appropriate safeguards.

8. There is no doubt that the applicants in the day to day management of this little boy face significant issues and difficulties. As a consequence of the child’s social and educational difficulties the applicants are home-schooling the child. Historically they home-schooled their older children from the ages of eight and eleven and both of those children are now at university. The applicants have made enquiries of the local public school and in discussions the principal expressed concern as to the possible traumatic effect on the child should an attempt be made to place the child in mainstream schooling.

9. The applicants are appropriately registered for home-schooling and a continuation of home-schooling for the child is supported by the Independent Children’s Lawyer.

10. In living with the applicants the child is about four to five hours’ drive from the father’s residence. The child’s health issues make the long drive somewhat problematic.

11. The child is financially supported by the applicants who receive no financial support from either the mother or the father.

The father

1. The father has for some years been financially dependent upon a disability pension.

2. The father’s most recent psychiatric admission was for about ten days from 8 June 2010 in AA Hospital, R Town. The father was taken to the hospital by family who described him as “virtually catatonic”. The father was expressing suicidal ideation to “run car into a tree”. The father reported a recent stressor being the confiscation by the police of $8,000 in cash from him, an extraordinary sum for a man on disability benefits.

3. The relevant discharge summary reveals that the father was seeking help for anxiety and depression and admitted to a significant anger management problem, losing control easily and worrying excessively. He complained of chronic neck pain and reported that he smoked THC (marijuana) for this. He was reported to have a concerning use of marijuana back in December 2008 (Exh J).

4. The father had been diagnosed with ADHD as a child and post-accident in 1999 with bipolar affective disorder ADHD (Exh D). The father adduces no evidence as to present mental health circumstances nor has he sought counselling for anger management issues.

5. The father said he had not smoked marijuana for the last five years but had failed to provide a urinalysis test result since 2011. He continues to smoke cigarettes despite his difficult financial position. He has no financial capacity to pay for ongoing urinalysis.

6. It is clear that his financial circumstances make the prospect of regular travel from his residence in T Town to the D Region for time with the child difficult for him, particularly in circumstances where he is contributing to rent payments in relation to his accommodation and would have to pay for supervision.

7. The father expresses frustration at difficulties in relation to him spending time with the child since the child came into the care of the applicants and frustration at the delay that he perceives in the matter coming on for trial.

8. He denies any misconduct on his part in relation to the incident referred to JIRT and the Department of Family and Community Services and it is noted that he was never interviewed in relation to the incident and that the incident is put into perspective by the child’s paediatrician as referred to above. He denies any violence to the child but acknowledges the child’s perception that there was.

9. He denied allegations of violence from the mother’s older children in the household when with the mother. These adult children were not required for cross-examination.

10. The father presently resides with his current partner Ms M in a home rented by her in T Town in the U Region of New South Wales. Ms M has two boys now aged nine and 14 in her care and four adult children. Ms M, who has known the father for about four and a half years, has observed the father to suffer from depression and understands that he remains on medication. The father sees no mental health specialist but his medication it appears is prescribed his general practitioner: Aropax for depression and Nexium for reflux.

11. Police records (Exh N) reveal that the local police have attended at the T Town address on 21 April 2012 in relation to a domestic incident involving Ms M’s children, and on 21 December 2011 in relation to conflict between the father and Ms M’s former partner who had been released from gaol.

12. The father has early convictions for violence related offences (1990, 1991, 1993, 1998, 2001 - Exh O). The father has recent convictions for “in possession of goods suspected of being stolen” in October 2010 (6 month bond) and “drive whilst suspended” on February 2011 (fined and disqualified from driving for 12 months).

13. In oral evidence the father accepted that the child needs routine and he would need to be guided by the child’s routine with the applicants. Yet the father had not engaged in counselling as recommended in the Single Expert’s early report in 2012. He only enquired about the ASPECT course, for parents of children on the autism spectrum, the day before giving evidence.

14. Perhaps suggesting some lack of reflective capacity into the intricacies of the child’s needs, the father says that should he have time with the child in T Town he would take the child camping and gradually introduce the child to his partner and her children but keep his time with the child separate from her as “I don’t do anything with her kids”. He did not consider that camping could trigger any adverse reaction in the child’s behaviour although the child may “be out of his comfort zone” away from the applicants.

15. The father conceded that the only time the child has spent in his care since separation was for three months from November 2008 and about a month from April 2011. His mother, he says, wants to stay out of it. Perhaps that explains her very perfunctory affidavit read in his case, her cautious oral evidence where she concedes calling the police with concerns for the child when in the father’s care and also notifying the Department where her view was that the father “was not emotionally or physically able to care for (the child)”.

16. The father’s relationship with the applicants is not good but in any event he concedes he would need to rely on them for advice as to the child’s management.

The Single Expert

1. In his first report dated 18 November 2012 Dr KK after reviewing the child’s then circumstances recommended primarily:

   a)that the applicants have sole parental responsibility for the child in order to be able to make the best health and other decisions for him;

   b)that the child remain living in the care of the applicants who were providing extremely well for him where the child would benefit enormously from the stable household and care that he was receiving from the applicants;

   c)that the child’s contact with the mother continue noting that the applicants appear to have a positive relationship with the mother and can deal with that; and

   d)that there should be some contact with the father, not necessarily supervised but perhaps supported by the father’s mother who at that time was willing to be involved.

2. Otherwise relevant to the present considerations Dr KK also recommended:

   a)that none of the adults denigrate the other adults in front of the child;

   b)that each of the adults have counselling to help them with their respective situations, with this to include the applicants as they do have some careful negotiation that needs to occur with the father and mother and helping them to decide about navigating education and whether home-schooling is going to be best in the long term for the child;

   c)that none of the adults use physical punishment on the child;

   d)that the adults undergo parenting and post separation counselling;

   e)that it would be of benefit for the father to have a neuropsychological evaluation to assess his current neuropsychological abilities and difficulties noting that whether the father is capable of improving his emotional regulation is difficult to know because of potential organic brain damage;

   f)that should the father and mother want to have a more substantial role in the child’s life they would both need to undergo substantial rehabilitation and assume more healthy normal functioning; and

   g)that the child continue with his care through his paediatrician and perhaps even mental health services to help him with his anxiety and concentration problems.

3. It was noted by Dr KK that as competent as the applicants present, the child having had such disrupted attachment and therefore reactive attachment problems is likely to have significant and emotional behavioural issues to deal with and that this is going to be very challenging even for very competent parents and that they need to be prepared to utilise professional services if and when the need arises to manage the challenges that are almost certainly going to be presented with.

4. In the second Single Expert report dated 28 June 2015 (Exh C) Dr KK’s primary recommendations were substantially similar as follows:

   a)that the child remain in the care of the applicants as they are providing well for the child who is benefiting from a stable household;

   b)that the applicants will need professional help to be able to integrate the child into an appropriate educational environment. Dr KK expressed concern that if home-schooling was to continue it may be difficult for the child to learn adequate skills to be able to separate (from the applicants) and function more independently. The reporter opined that the child may need a special school placement because of his intellectual issues and autistic spectrum disorder;

   c)that whilst the applicants are utilising occupational therapy, psychological help and a paediatric physician, in addition assistance may be required for the child’s complex needs and separation anxiety through a child psychiatrist;

   d)that the mother continue her contact regime as implemented by the applicants;

   e)that there should be contact with the father with the single expert of the view that it’s more of a problem that the loss and sadness about not having contact with the father is causing significant problems for the child. It was recommended that contact be block contact every 3 months perhaps commencing for a weekend near where the applicants live and thereafter arm for a period in each school holidays; and

   f)the single expert continued his previous recommendations as to non-denigration, continuing with counselling, no physical punishment of the child and that none of the adults use any drugs or alcohol.

5. A consideration of the recommendations of Dr KK sees the proposed orders sought by agreement between the applicants and the ICL as appropriate save for the question of the father’s time.

6. Regrettably Dr KK was not required for cross examination as a consequence of the father withdrawing from the proceedings late in the hearing. The recommendations by Dr KK in relation to the father’s time must now be seen in the light of the further evidence before the Court and in particular the oral evidence of the father that demonstrated little empathy with the child’s circumstances and little insight into the father’s own personality and mental health issues in respect of which he has done absolutely nothing notwithstanding Dr KK’s first report.

7. In reality the Court is left in the dark in relation to the father’s capacity, particularly as to his mental health. The more cautious approach to the father’s time adopted by the ICL and the applicants seems appropriate.

The Law & Discussion

Can the applicants apply for parenting orders as persons concerned with the care, welfare and development of the children?

1. Section 65C of the Family Law Act 1975 (Cth) (“the Act”) provides that persons other than parents, including grandparents and any other person concerned with the care, welfare and development of the child, can apply for parenting orders.

2. It is clear, having regard to the circumstances of the child both historically and at present where the child is in their care the applicants are concerned with the care, welfare and development of the child. The applicants are able to apply for parenting orders.

What are the relevant matters in determining the child’s best interests?

1. The relevant principles in relation to parenting are well settled: see Goode and Goode (2006) FLC 93-286.

2. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

3. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

4. Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of a child.

5. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility.

6. The presumption does not apply where:

   a)there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];

   b)in interim proceedings where  the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)]; and

   c)if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].

7. If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.

8. This matter, however, involves non-parents.

9. The Full Court in Donnell & Dovey [2010] FamCAFC 15 and Aldridge & Keaton [2009] FamCAFC 229 referred to the decision of Moore J in Potts & Bims [2007] FamCA 394 and said the settled legislative pathway followed to determine the best interests of a child is not the prescribed pathway in respect of determining best interests in proceedings between a parent and non-parent. The Full Court accepted, however, that it may be necessary to address some of those legal principles in determining the outcome.

1. Consideration of the applicants as non-parents in respect of the best interests considerations can be facilitated by reference to s 60CC(3)(m). The Full Court in a number of recent cases has made it clear that the additional consideration s 60CC(3)(m), allowing the Court to consider “any other fact or circumstances that the Court thinks relevant”, acts as a “catch all provision”.

2. It is therefore appropriate to apply the relevant considerations in respect of the applicants by way of application of s 60CC(3)(m).

3. It is settled law that there is no presumption or preferential position that applies as between a parent and a non-parent. As the Full Court said in Valentine & Lacerra and Anor [2013] FamCAFC 53 at [43]:

   … there are no presumptions or preferential positions that apply as between parent and non-parent, and an application for a parenting order by a non-parent is to be determined in the same way as an application by a parent, namely, according to its own facts and having regard to the best interests of the child as the paramount consideration (s 60CA of the Act). …

4. The Full Court in Yamada & Cain [2013] FamCAFC 64 said:

   19. … It is axiomatic that the fact of parenthood is centrally important to a decision about the best interests of a child. Unsurprisingly, the Act makes that clear by outlining the powers, duties and responsibilities of parents. Some of Part VII’s provisions do not apply to non-parents. …

   …

   21.It has also been said that the provisions of Part VII, and s 60CC in particular, do not give a clear “indication of the weight to be attached to the child’s relationship with a person other than his or her parent compared with the child’s relationship with the natural parent …” (Mulvaney & Lane (2009) FLC 93-404 per Finn J at [15]). As also noted in Donnell (at [120]) it has been suggested that “in proceedings between a parent and a non-parent all of the relevant provisions of the Act referring specifically to parents ‘fall away’” (original emphasis). …

   …

   25.      In Donnell, the Court went on to say …

   However, [the fact that s 60CC(2)(a) makes no reference to non-parents] does not give rise to any difficulty in ensuring all relevant matters are taken into account. In a particular case, the maintenance of a meaningful relationship with a non-parent may be equally important or more important than the maintenance (or establishment) of such a relationship with a parent. As with the additional considerations, it is not necessary to classify a non-parent as a “parent” to ensure that clearly relevant matters are given appropriate weight.

   We should also stress that the fact that the benefit to the child of the maintenance of a meaningful relationship with a non-parent can, on our analysis, never be a “primary consideration” …

5. As the Full Court said in Aldridge & Keaton (supra), an additional consideration may, in a particular case, outweigh a primary consideration, and at [75] said:

   … all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant. …

6. Finally, the Full Court in Yamada & Cain (supra) said at [27]:

   The broad inquiry as to best interests contemplated by s 60CC (in the context of the other provisions of Part VII) recognises that it is not parenthood which is crucial to the best interests of the child, but parenting – and the quality of that parenting and the circumstances in which it is given or offered by those who contend for parenting orders.

The Additional Considerations: section 60CC

1. As these proceedings commenced in 2011, the Act prior to the 2012 amendments applies. The additional considerations are set out in s 60CC(3) and (4) of the Act, as it then was. As noted above, it is appropriate to consider the relevant considerations in respect of the applicants by way of application of s 60CC(3)(m). The relevant considerations are as follows:

Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

1. Dr KK expressed the opinion in his report that the child wanted to continue living with the applicants. The child sees the applicants as his primary caring parents and psychological parents.

2. When interviewed by Dr KK before seeing his father, the child expressed “I don’t love [the father]” and that sometimes he and the father did nice things but he was worried that the father might hurt him. He couldn’t explain why. When asked about his wishes, the child made the statement that “I wish [the father] would turn into a frog and be dead”. However, Dr KK expressed that:

   Interestingly [the child] stated that if he could be sure that [Mr Casey] was a good person that he would go and live with him. I don’t believe that he meant that he wanted to reside permanently I believe that he was really saying that he wanted to see him. However, the language and intention were at times confusing. [The child]’s statements about hating his father and wanting him dead did not reflect the positive rapport and the closeness and his apology [Mr Casey] about [Mr Casey] being upset and not seeing [the child]. They were tearful in their joy at being together and sadness about having missed out on having time together.

   …

   There was no indication that [the child] was frightened of [Mr Casey]. His fear was more, I believe, that he could be taken away from [Ms Carnegie].

   …

   I believe the statements about not wanting to see [Mr Casey] and wanting [Mr Casey] dead are more a reflection of a childish reaction to coping of his fear about losing [Ms Carnegie].

3. While the time that the child spends with his mother is not in issue, it is noted that when asked about his mother, the child expressed “I love her. I see her for half a day on Fridays” and that he enjoyed going to see her.

4. Given the child’s age and development, little weight is attached to his views         .

Nature of the child’s relationship with each parent and other significant persons (including grandparents or other relatives)

1. The child has been in the care of the applicants’ from the age of six. Dr KK expressed that the child appeared to be strongly bonded with the applicants and the applicants’ two children. However, the doctor was concerned about the child’s development of “separation anxiety to [Ms Carnegie] and this combined with his earlier instability drives an anger anxiety dynamic between him and [Ms Carnegie]”. The doctor expressed:

   …there are significant concerns about [the child]’s behaviour. He has a lot of anger and aggression. He has a lot of anxiety, aggressive outbursts. Much of his anger and aggression has been focused towards [Ms Carnegie]. It is clear that there is significant separation anxiety between [the child] and [Ms Carnegie]. [The child] quite clearly stated that he gets anxious and worried when he is away from [Ms Carnegie]. He doesn’t like [Ms Carnegie] going to work. He doesn’t like being away from her. He can’t understand why she sometimes leaves him…

   It seems to me that [the child’s] separation anxiety and anger are often linked. If [the child]’s anxiety increases greatly and he is threatened to [Ms Carnegie] leave him, then he becomes quite angry and then make (sic) attach [Ms Carnegie]. I formed the view that there was an anxiety dynamic…

2. The child and his father have had little contact since 2011. Dr KK opined that the nature of the child’s relationship with his father was “one of confusion”. The doctor was of the opinion that “it was clear there was a positive relationship and that there was a very strong bond between them” and that he believed that the child “is pining for some contact with his father”. The doctor further expressed that:

   I believe that [the father] cares a great deal about [the child]…Whilst he is unsophisticated in his approach to managing [the child] and understanding [the child] it is clear that their strong bond needs to be preserved. There was no indication that [the child] was frightened of [the father]. His fear was more, I believe, that he could be taken away from [Ms Carnegie].

   …

   The main driving force now for [the child] is the anxiety and fear of losing [Ms Carnegie]. Unfortunately this has now been projected onto [the father] as the cause of all [the child]’s problems. [the child] has internalised this fear that [the father] is going to remove him and now [the father] has become the scapegoat for most of the anxiety problems and [the child]’s anger.

3. In the report dated 18 November 2012, Dr KK commented the mother clearly cared for the child, had a bond with him and that the child recognises her as an important person. The doctor did not interview her again and was not able to make any further comments in his later report.

The 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

1. In interviews with Dr KK and under cross-examination, the applicant Ms Carnegie was ambivalent about the benefit to the child of a relationship between the child and the father. Nevertheless, in effect the applicants expressed that if the Court ordered time they would be willing to facilitate the child “hav[ing] a successful time with the father”. It did not appear to be disputed that the applicants had made the child available for any scheduled visits or telephone communication between the child and the father in the past. It is noted that the applicants have facilitated the child spending significant time with his mother each week or fortnight.

The extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the child and to spend time and/or communicate with the child and have facilitated the other parent doing so

1. In 2011 the child was placed into the applicants’ care and interim orders were made for Ms Carnegie to have sole parental responsibility for the child. The applicants have since made the long-term decisions regarding the child, including in relation to his education and health. It appears that there is very limited communication or consultation between the applicants and the father in relation to long-term decision making, although the applicant Ms Carnegie says she routinely provides the father with school reports.

2. The father has spent very limited time with the child since 2011. In June 2011, interim orders were made for the child to spend time with the father at times agreed between Ms Carnegie and the father at a contact centre or supervised by a person acceptable to them. In September 2011, it was further ordered that subject to the availability of the supervision arrangement, the father was to have time with the child once each fortnight. There was some supervised contact through E Facility from 2011 to September 2012, although it appears that a number of scheduled visits were cancelled by the father, possibly because of the associated costs. After mediation, in May 2013 interim consent orders were made for the child to spend time with the father on six occasions with a private supervision service with the paternal grandmother present for two hours every fourth Friday. The father and child spent time together once in accordance with the orders in June 2013. The circumstances in which the father ceased to spend time with the child are unclear although it appears that further visits were arranged but the father did not attend and the paternal grandmother then withdrew. The only time the father and child have spent together in recent years was in the course of Dr KK’s interviews in 2015. Although the frequency is unclear, Ms Carnegie details that telephone communication between the father and the child has continued since 2011, although extremely brief.

3. Notably, on 10 September 2015 the Court was informed by the legal representatives of the father that they had been informed that the father no longer wish to participate in the proceedings.

4. The mother spends time with the child on one day each fortnight by arrangement with the applicants.

Likely effect of change in the child’s circumstances

1. Under each of the proposals, the child is to remain living with the applicants. The only change of circumstances contemplated would be that the child would spend time with the father, when he is currently spending no time with him.

2. Ms Carnegie contends that contact with the father has been detrimental to the child’s “mental health and behaviour” and details a deterioration in the child’s behaviour after spending time with or communicating with the father. In his report, Dr KK was of the opinion that it the significant problems and the child’s difficulties were caused by “the loss and sadness about not having contact with [the father]” and that no contact between the child and the father would be a “terrible loss” for the child. However, he acknowledged that introducing such a change in contact with the father was going to be a challenge in the circumstances of the child’s separation anxiety and that such contact would be initially be block contact every three months. Further, as noted above, the doctor was not cross-examined in light of recent circumstances and his recommendations must now be see in light of the further evidence before the Court, in particular the oral evidence of the father that demonstrated little empathy with the child’s circumstances and little insight into the father’s own personality and mental health issues in respect of which he has done nothing.

Practical difficulty or significant expense involved in spending time with and communicating with the other parent

1. On interview with Dr KK the father said that the costs associated with travelling to spend time with the child on the D Region and the cost of supervised contact was prohibitive. The father said that the expense to spend time with the child was a significant reason for the cancellation of a number of contact events.

2. Further, as noted above, in living with the applicants the child is about four to five hours’ drive from the father’s residence. The child’s health issues make the long drive somewhat problematic. The logistics of where the father’s time with the child would take place and associated costs is a continuing issue.

Capacity of each parent and any other person (including grandparent or other relative) to provide for the child’s needs including emotional and intellectual needs

1. The capacity of each party to provide for the child’s needs is a significant issue in this matter.

2. Dr KK opined that the applicants were “capable caring parents and that they could provide well for him and could continue to provide well for him”. He said there was no evidence that either of the applicants had any mental health problems or personality difficulties although he noted Ms Carnegie’s need to be very overprotective of her children including the subject child. He further said that the child was making steady progress in their care and that he would benefit enormously from that stable household and the care that he is receiving from the applicants. In his second report the doctor recommended that while the applicants were utilising occupational therapy, psychological help and a paediatric physician, further help be provided to the applicants for the child’s complex needs and separation anxiety through a child psychiatrist. Under cross-examination, the applicant Ms Carnegie said that she had made preliminary inquiries although child psychiatrists in the region were extremely limited.

3. In relation to the father, the child came into the care of the applicants as the parents were unable to provide for the child’s needs. Currently, as detailed above, there are concerns in relation to the father’s mental health which impact upon the father’s parenting capacity. The doctor opined that the father does not have “a great deal of capacity to deal with stress and adversity and probably develops acute anxiety or depressive conditions as an adjustment disorder when there is a significant stress or live event.” Dr KK further opined that father had some significant personality problems with “impulse control, antisocial behaviours, possible organic brain dysfunction, low frustration and tolerance and difficulty managing stressful situations”.  The doctor detailed that he believed the father needed some help in understanding how to manage the child’s autistic spectrum disorder, ADHD and oppositional defiance and anxiety, particularly separation anxiety. However, he believed the father understood how to provide for the basic needs of the child and with some guidance he could spend some time with the child as long as the father was not emotionally overloaded.

4. Under cross-examination the father said he did not recall the recommendations and had not acted upon several of the recommendations in Dr KK’s first report. In particular, at one point he said that the last time he had seen a counsellor “was a few years ago” and when asked about any “other doctors…psychiatrists or psychologists” he said he’d last seen one about two years ago. The father provided no updated reports from treating practitioners or any neuropsychological assessment. Further, the father said he had not attended any parenting after separation course as recommended because he hadn’t “needed to” because he had looked after the child when he was in his care for two months in 2011.

5. Perhaps suggesting some lack of reflective capacity into the intricacies of the child’s needs, the father said that should he have time with the child in T Town he would take the child camping and gradually introduce the child to his partner and her children but keep his time with the child separate from her. He did not consider that camping could trigger any adverse reaction in the child’s behaviour and although the child may initially “be out of his comfort zone” away from the applicants he knew the child would “settle” with him. When asked about the concern that the child may not cope he said that “I know we will be right together”. The father only enquired about the ASPECT course for parents of children in the autism spectrum the day before giving evidence. Dr KK’s opinion in relation to the father’s time must now be seen in the light of this further evidence before the Court.

Maturity, sex, lifestyle and background (including culture and traditions) of the child and either parent, and any other characteristic of the child that the court thinks relevant

1. The child’s autistic spectrum disorder and ADHD and anxiety disorder have been considered elsewhere in these reasons for judgment.

Attitude to the child and responsibilities of parenthood demonstrated by each parent

1. Since the child was placed in the applicants’ care in 2011, the applicants have provided the child with a stable home and care, and have engaged with appropriate services to meet the child’s needs. The child is financially supported by the applicants who received no financial support from either the mother or the father.

2. In respect of the father’s attitude to the responsibilities of parenthood, as detailed above, it is a concern that the father did not take any action in response to Dr KK’s recommendations or in relation to better understanding the child’s complex needs. When asked under cross-examination whether he thought attending a parenting after separation course as recommended was part of his responsibilities the father responded that he didn’t need to. In recent years, a number of visits with the child were cancelled by the father on generally less than 24 hours’ notice, albeit he says due to his financial difficulties. Further, the father disengaged from the proceedings during the hearing. To the father’s credit, Dr KK observed that the father cares a great deal for the child.

Family violence involving the child or a member of the child’s family

1. The applicants raised concerns that the father had perpetrated violence against the child and the mother’s older children in the household when with the mother. This issue will be considered with allegations of child abuse later in these reasons.

Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the child

1. The parties and the mother all supported the child living with the applicants. While the father could possibly attempt to reinstitute proceedings concerning his time with the child, given that he has disengaged from these proceedings that is unlikely.

Any other relevant fact or circumstance

1. As discussed above, the additional considerations above have been considered by way of application of s 60CC(3)(m).

The Primary Considerations: section 60CC(2)

1. The primary considerations are:

   (a) the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Meaningful relationship

1. In Mazorski & Albright [2007] FamCA 520 Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:

   What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive (sic) one. Quantitive (sic) concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

2. In McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483, the Full Court accepted as appropriate this interpretation by Brown J of “meaningful relationship”.

3. It is clear that Dr KK observed that there was a positive relationship and very strong bond between the child and his father. He opined that should substantial contact be established that this would be positive for the child and that no contact would be a terrible loss for the child. However, again, these recommendations must now be seen in the light of the oral evidence of the father that demonstrated little empathy with the child’s circumstances and little insight into the father’s own personality and mental health issues.

4. It is not in dispute that the child will continue to have an important relationship and spend significant time with his mother.

The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. The central issue raised under this consideration is harm to the child from the father’s neglect or possibly abuse of the child. The applicant Ms Carnegie contended that there was a risk of harm to the child from the father due to a “long history of poor treatment of children in his care” and “long history of significant mental health problems”. The father denied allegations of violence from the mother’s older children in the household when with the mother. These adult children were not cross-examined. The father accepted that he previously had an anger management problem, but said that was only until 2010 when he separated from the child’s mother. In his reports, Dr KK was of the opinion that the father was not an unacceptable risk of harm to the child and that he would be able to care for the child for short periods of time so long as he was not emotionally overloaded. However, this opinion by Dr KK must now be seen in the light of the further evidence before the Court and the inadequate information in relation to the father’s current capacity particularly as to his mental health. A more cautious approach to the father’s time seems appropriate.

2. The issue of physical or sexual abuse of the child perpetrated by the father was raised in interviews with Dr KK and again in the hearing. Dr KK said:

   It would appear that [Ms Carnegie] has been questioning [the child] to try and understand his anger and tantrums and difficult behaviour. This seems to have elicited statements from [the child] that he had memories of being hurt and touched by [Mr Casey]. On questioning, it’s not clear that there were any such major events of abuse between [Mr Casey] and [the child].

   I formed the view that it was most likely that, although [the child] had a lot of disruption and instability that direct abuse from [Mr Casey] seemed unlikely. He reported after a supervised visit in August 2013 [the child] said, “He touched me”. It seemed highly unlikely that a child would remember in 2013 of this age an ill-defined touching events from several years before,. [Ms Carnegie] started to suspect sexual assault, “I suspected sexual assault as well. [the child] disclosed touching a person.” [the child] had touched a younger child. [Ms Carnegie] didn’t know what this meant but she presumed it was some sign of sexual abuse. She also assumed that the child touching her on the breast and trying to put his tongue in her mouth was a sign of sexual abuse. These behaviours are not unusual for children of this age and I believe are within the range of normal behaviours for a child. She was also questioning him to remember more. He stated, “I am remembering something. [Old] daddy touched my penis” as he was gesturing a lot. I have major concerns about these ways of eliciting information from the child. When I interviewed him he did not indicate to me concern that he’d been sexually abused.

   I formed the view that [Mr Casey] was not an unacceptable risk to the child. I don’t believe that there was a significant reason to conclude that there had been any direct abuse of [the child] by [Mr Casey]. The major problem was that [Mr Casey] wasn’t able to provide stability and care. I formed the view that there was no unacceptable risk of abuse and that there was no indication that [Mr Casey] had intentionally or inadvertently intended to cause any direct harm to [the child].

3. In mid-2014, in response to a recent complaint by the child to his psychologist of sexual abuse perpetrated by the father a JIRT investigation was carried out. The father was never interviewed and the allegation was unsubstantiated by JIRT.

Who should have parental responsibility?

1. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility. The presumption does not apply in certain circumstances, as set out in [68] above.

2. An order can be made for a non-parent to have parental responsibility or to share parental responsibility with another, but where proceedings are between a parent and a non-parent, as referred to by the Full Court in Donnell & Dovey (supra) at [121] and in Aldridge & Keaton (supra) at [112], the presumption of equal shared parental responsibility under s 61DA is not the prescribed pathway in determining what is in a child’s best interests.

3. As this matter involves non-parents, the presumption does not apply.

4. The issue would be determined by a consideration of the child’s best interests. The major long-term issues the subject of parental responsibility relate to a child’s education, religion and cultural upbringing, health, name and changes to a child’s living arrangements that make it significantly more difficult for a child to spend time with a parent.

5. However, that issue was resolved by agreement at the outset of the trial by consent. There will be an order for the applicants to have sole parental responsibility.

Conclusion

1. As discussed in the reasons above, the primary issue for determination is the father’s time with the child. Weight is given to the need for the child to have a meaningful relationship with the father. However, the considerations of need to protect the child from harm, the capacity of the parties, their attitudes to the responsibilities of parenthood are very significant in this matter. In light of these considerations, the more cautious approach to the father’s time adopted by the Independent Children’s Lawyer and the applicants is in the best interests of the child and orders will be made accordingly in terms of Exhibit Q.

I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 25 November 2015.

Associate: 

Date:  25 November 2015