Cranmer and Tiyce

[2017] FamCA 1034

FAMILY COURT OF AUSTRALIA

CRANMER & TIYCE [2017] FamCA 1034

FAMILY LAW – CHILDREN – With whom a child spends time – Time the father is to spend with the child – Where the child has diagnosed ASD and developmental issues – Where the child has had limited time with the father – Best interests of the child

Family Law Act 1975 (Cth)

APPLICANT: Ms Cranmer

RESPONDENT: Ms Tiyce

FILE NUMBER: SYC 5438 of 2012

DATE DELIVERED: 7 July 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 15 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Fermanis

SOLICITOR FOR THE APPLICANT: H. Abelas Lawyers

COUNSEL FOR THE RESPONDENT: Mr Campton SC

SOLICITOR FOR THE RESPONDENT: SWAAB Attorneys

Orders Pending Further Order

Orders:

1. All prior operative parenting orders made by this court or the Federal Circuit Court are suspended only so far as the orders are inconsistent with the orders made herein.

2. That for the purposes of these orders, the father shall provide to the mother within 7 days of his receipt of his roster from his employer N Company, a true copy of that roster, and thereafter the mother shall elect which days the father is to spend time with B for a three month period and provide to the father the dates no later than 14 days prior to the commencement of that period.

3. That with respect to Order 8 herein, in the event that the mother considers B displays of inability to cope with overnight time with the father, the mother may notify the father and suspend the overnight portion of the order. The parties shall consult with Dr E and shall obtain the recommendations of Dr E with respect to the time between B and the father. The parties are to implement any such recommendation. In the event that either party does not agree with the recommendations, the matter is to be relisted with seven days' notice.

4. In the event the mother does suspend the overnight time B is to spend with the father, she is to cause her solicitor, or alternatively cause herself, to provide to the father, at the time she gives notice she is suspending the overnight time, the reasons/reasons she is so doing.

5. In the event that the mother gives the notice to the father that suspends B’s overnight time with the father, the mother is to also provide in such notice the time of an appointment she has made for the parents to meet with Dr E to assist by providing a recommendation as specified in these orders.

6. Upon receipt of any notice from the mother which suspends the time the father is ordered to spend with B, as specified in this order, the father is at liberty to relist the matter before the docket judge to seek any other order referable to the time and or the circumstances in which B is to spend with the father.

7. Where overnight time for B with the father is suspended by the mother she is to arrange for the replacement of such time with full day access and notify the father of the times that will occur.

8. That the father shall spend time with B as follows:

   a.In each week during the school term for the school B attends, one after school period from the conclusion of school until 5.00 p.m. (or such later time as the parties may agree to in writing with the assistance of Ms D, their counsellor). The father is to collect B from his school at the commencement of such time and deliver him to the mother’s residence (or to the mother at any other address nominated by her provided such residence is no further from B’s school than the mother’s residence, or to any other place agreed to by the parties in writing) at the conclusion of that time.

   b.The one day in each week is to be a day nominated by the mother having regard to the father’s work roster. If the father is not available in any week to spend after school time with B he is to notify the mother of his unavailability at least 48 hours before any such occasion of time with B.

   c.From the date of these Orders until 1 September 2017 on either Saturday or Sunday of each week between the hours of 10:30 a.m. and 5:30 p.m. on a Saturday or 10:30 a.m. to 4:30 p.m. on a Sunday, provided that the father has a rostered day off on that weekend.

   d.In the event the father does not have a rostered day off on a Saturday or Sunday for the purposes of this order, the mother shall elect one day in that week for the father to spend time B from after school until 5.00 p.m.

   e.As and from 1 September 2017 the father is to spend two non-consecutive overnights per calendar month between the hours of 10.30 a.m. Saturday and 11.00 a.m. Sunday (extending to 1.00 p.m. as from 1 January 2018) provided that these overnights do not occur on consecutive weekends and provided the father's roster permits. The mother is to nominate the weekends when the B is to have overnight time with the father in compliance with these orders. The selection of such weekends is to occur having regard to the father’s work roster.

   f.That in the event that the father does not, in a particular calendar month, have two rostered weekend days off on a Saturday and Sunday for the purposes of this order, the mother shall elect one weekend day where the father does have a rostered day off and the father is to spend time with B on that weekend day from 10.30 a.m. to 5.30 p.m.. This order is to operate to ensure B spends not less than two weekend days with his father in each calendar month commencing 1 September 2017.

Special Days

1. The parties are to ensure if at all possible, B shall spend time with the father each Father's Day from 10.00 a.m. to 5.00 p.m. and with the mother each Mother's Day from 10.00 a.m. to 5.00 p.m.

2. The parties are to ensure if at all possible that on B's birthday, the parent with whom B is not otherwise living on that day is to spend time with B from 3.00 p.m. until 6.00 p.m. If the birthday falls on a school day then the father’s time will commence by collecting B from his school and conclude by the father returning B to the mother at the mother’s residence (or to the mother at any other address nominated by her, provided such residence is no further from B’s school than the mother’s residence, or to any other place agreed to by the parties in writing).

3. The parties are to ensure, if at all possible , that on the each parent's birthday if B is not spending time with the birthday parent then he is to spend time with that parent for a 4 hour period, and if B is attending school on that date from after school to 5.00 p.m. In relation to the father’s birthday the father is to collect B from school on that day (if it be a school day) and return him to the mother at the mother’s residence (or to the mother at any other address nominated by her, provided such residence is no further from B’s school than the mother’s residence, or to any other place agreed to by the parties in writing). For changeovers on the mother’s birthday, should that be required, same is to occur in the car park area of McDonalds Restaurant, Suburb F unless the parties agree otherwise in writing.

4. Notwithstanding these Orders, that in 2017 and each alternate year thereafter, B shall spend time with the father on Christmas Day from 10.00 a.m. until 3.00 p.m. and with the mother from 3.00 p.m. until 7.00 p.m. and in 2018 and each alternate year thereafter, B shall spend time with the mother from 10.00 a.m. until 3.00 p.m. Christmas day and with the father from 3.00 p.m. until 7.00 p.m. Christmas day or a 4 hour period agreed by the parties in writing. Changeovers for this occasion are to occur in the car park area of McDonalds Restaurant, Suburb F unless the parties agree otherwise in writing.

5. Unless otherwise specified herein, B’s time with his father is to commence and conclude for each occasion in the car park area of McDonalds Restaurant, Suburb F.

14.The mother is to cause her solicitor to provide to Ms D, the counsellor appointed to assist the parents in therapy the single expert report of Dr E together with a copy of these orders and the reasons provided.

15.The father be at liberty, once B is able to communicate over the telephone, to communicate with B by telephone between 5.00 p.m. and 5.30 p.m. each Tuesday and Thursday. It is noted that the duration of the telephone call and the content will depend on B's age and ability to participate in the conversation.

16.For the purposes of B spending weekend days or times longer than 5 hours with his father, changeover is to occur in the car park area of McDonalds Restaurant, Suburb F and for the purposes of spending short days (days shorter than 5 hours) with his father, changeover shall be at school or, if B is not at school, in the car park area of McDonalds Restaurant, Suburb F or as otherwise agreed by the parties in writing.

17.Where in this order the changeover of care for B between the parents is to occur at the mother’s residence, the mother may, at her election notify the father that she requires the changeover to occur in the car park area of McDonalds Restaurant, Suburb F.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT  SYDNEY

FILE NUMBER:  SYC 5438/2012

Mr Cranmer

Applicant

And

Ms Tiyce

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 15 February 2017, the Application in a Case filed 10 February 2017 by Mr Cranmer (“the father”) came before me in the Judicial Duty List.

2. The father seeks orders to increase his time spent with the parties’ child, B, who will soon turn 6 years of age. B has Autism Spectrum Disorder (“ASD”), severe vision impairment, delayed speech development, as well as other developmental problems. The orders sought by the father are opposed by the respondent Ms Tiyce (“the mother”), and the mother seeks orders for overseas travel with B in July 2017.

The applications

1. In Court, the father tendered a minute of order which was marked Exhibit C. He seeks that the interim parenting orders made on 13 December 2012 by Federal Magistrate Walker be discharged. He seeks orders providing for the father to spend time with B each weekend block period on Sundays (or Saturday when the father works a Sunday), as well as two days after school from 3.00 p.m. to 6.00 p.m. (the days to be elected by the mother). The “weekend block periods” prescribed in the father’s proposed orders refer to consecutive weekend days where the father is not rostered for work. The father also proposes that he spend time with B on the following occasions from 9.30 to 5.00 p.m., that being B’s birthday, B’s “name day”, and Christmas day.

2. Counsel for the father submitted that the wording of the orders sought by him ensure that B does not spend time with the father on weekends after he has worked a 12-hour shift. In effect, it was submitted that the father’s proposed orders enable him to spend three weekends in a row with B including overnight time. I note that the minute of order sought by the father (exhibit “C”) does not include an order for overnight time with B, although that is clearly what he would like to progress to.

3. The mother opposed the orders sought by the father to spend increased time with B. She handed up two minutes of orders which were marked Exhibit A and B. In Exhibit A, she seeks that B spend time with the father on either a Saturday or Sunday each weekend between 10.30 a.m. and 5.30 p.m. on a Saturday or from 10.30 a.m. to 4.30 p.m. on a Sunday (or until 5.30 p.m. if B is returned to the mother’s home). The mother proposes that she selects the day of the weekend that the father will spend with the child. In the event that the father does not have a rostered day off on the weekend, the mother proposes that she select one day in that week for the father to spend time with B from after school until 5.00 p.m. She also proposes that the father spend time with B from 10.30 a.m. to 5.00 p.m. on Fathers’ Day, from 3.00 p.m. until 5.00 p.m. on B’s birthday, for four hours on the father’s birthday (or from after school until 5.00 p.m.), from 10.00 a.m. to 3.00 p.m. on Christmas Day in 2017, and from 3.00 p.m. until 7.00 p.m. on Christmas Day in 2018. The mother seeks that the father provide her with a copy of his work roster six months in advance. She also seeks that changeover occur at H Restaurant in Suburb X or at the maternal grandmother’s home in Suburb C.

4. It was submitted by counsel for the father that the Orders made 13 December 2013, which are currently in place, are preferable to the orders proposed by the mother in Exhibit A. Counsel for the mother submitted that the current orders do not take into account that B is now attending school. That was accepted by counsel for the father. It was submitted that the father’s concerns as to a new regime are that it would decrease the time he spends with B. However, he accepted that there are problems with the current Orders.

5. In Exhibit B, the mother seeks orders that she be permitted to take B to Country Z in July 2017, and for that purpose that she be permitted to obtain a passport for B without the consent of the father.

6. The parties also seek orders that a Chapter 15 expert be appointed. In support of that application, the father submitted in Court that B has, since the initial expert report was prepared in 2013 by Dr E, been diagnosed with ASD. He also has other health issues and disabilities that require management, including a severe vision impairment, delayed speech development, and other developmental delays.

7. Orders were made on 15 February 2017 in accordance with the orders proposed in Exhibit B which were consented to by the father. Those Orders provide as follows:

   IT IS ORDERED THAT

1.I mark as Exhibit “B” a document being a minute of order sought by the mother.

2.I make orders 1, 3, and 5 of Exhibit B and note the notation in paragraph 4 of Exhibit B.

3.The matter is listed first day LAT before McLelland J [sic] on 25 May 2017 at 10.00 a.m.

4.I reserve judgment on the outstanding matters.

Exhibit B

1That pursuant to s.11 of the Passport Act 2005, the mother shall be authorised to do all acts and things as are necessary to apply for and to maintain and keep current and updated an Australian passport for B without the consent of the father.

2That the mother have permission and leave to remove B from Australia to travel with the mother to Country Z from 1 July 2017 until 22 July 2017.

3That the parties shall forthwith confer for the purposes of drafting a letter of instruction to obtain an updated Chapter 15 report from the single parenting expert, [Dr E] as to relevant s.60CC factors relating to the child, [B], including but not limited to the expert obtaining relevant documents and information from [B's] treating physician and therapists, and from his school.

4That the Court note that it is anticipated that [Dr E] has capacity to conduct interviews and assessments in late March 2017 and would hope to have her updated report available to the Court by late April 2017.

5That the Application in a Case of the father filed 11 January 2017 and the Response to an Application in a Case filed 10 February 2017 be adjourned to the first day of the final trial event.

1. As noted in the Orders made 15 February 2017, I reserved judgment on the outstanding matters. The matters that fall to be considered are whether interim orders should be made increasing the father’s weekend time with B, where changeover should occur, and whether the mother should be permitted to travel with B to Country Z in July 2017.  

2. The father relied on an affidavit sworn by him on 14 February 2017. The mother relied on an affidavit sworn by her on 10 February 2017.

3. I raised with counsel for the mother why I should deal with the mother’s application for overseas travel before the day set down for the Less Adversarial Trial, at which the updated single expert’s report would be available. Counsel for the mother submitted that apart from capacity to source flights, there is no other reason why that should be dealt with prior to the updated report.

4. In relation to changeover, the father submitted that Suburb N is halfway between the parties’ residences. The father currently lives in Suburb J and the mother lives in Suburb P.  

Background

1. The parties commenced their relationship in 2009 and married in 2011. They were only married for the short time between 2011 and 2012. B was born in 2011.

2. During their short marriage, the parties maintained separate households, the father living at Suburb M at all times, and the mother and B living at Suburb P.

3. The father is an engineer. He has a ten-week rotating roster, and in a nine-day period, he works four days on and five days off. His shifts are 12 hours.

4. A Family Consultant prepared a Memorandum to the Court on 9 November 2012.

5. Interim parenting Orders were made on 13 December 2012 by Federal Magistrate Walker which provided for the father to spend time with the child, B, in accordance with the father’s “rotating roster”. Currently, the father sees B two out of the nine days of his nine-day roster. Every 16 days, one of the visits with B is a “long day”, meaning it is seven hours long, instead of three and a half hours as per every other visit. There works out to be approximately three “long days” per month.

6. Orders were made for a Family Report to be prepared on 26 March 2013. That Report was finalised on 7 July 2013.

7. The Orders made on 26 March 2013 also provided for the continuation of the interim parenting orders made 13 December 2012.

8. The father made applications to vary the time he spent with B to the Federal Circuit Court. His last application was dealt with by Federal Magistrate Walker on 24 June 2014 and was dismissed.

9. The proceedings were transferred to the Family Court from the Federal Circuit Court on 25 February 2014.

10. The parties entered into consent orders in relation to property on 31 August 2015.

11. Also on 31 August 2015, Registrar Ryan placed the matter in the pool of matters awaiting allocation of a hearing date, in which it has since remained.

Evidence

B’s disabilities

1. It was acknowledged by the father that the only independent evidence currently before the Court to assist in determining the father’s application for overnight time with B is over three years old, that being the 2013 Family Report.

2. The mother deposed that B was born eight weeks premature and suffers from severe vision impairment which includes roving eye Nystagmus. He also suffers delayed speech development and has developmental problems including social interaction, communication, and an inability to play with his peers. He was diagnosed with ASD in May 2014.

3. It is the mother’s evidence that B requires significant assistance. He requires assistance with fine motor development and aids to assist him with his vision. He is assisted by therapists. In addition, B has a paediatrician to monitor his medical needs, and an eye specialist for his visual impairment.

4. There is no dispute between parties in respect of B’s diagnoses.

5. It was conceded by the father that the parties have not sought advice from a professional as to the father spending increased time with the child.

The mother’s evidence

1. In her affidavit sworn 10 February 2017, the mother deposed that she is the primary person who coordinates B’s treatment regime and continues with therapy for B. She deposed that she has sold the two businesses that she operated prior to B’s birth and works on a part-time basis around his needs.

1. The mother deposed that B has never slept a night without her since his birth. She says she is concerned that B’s routines have been disrupted by the commencement of school this year, and that introducing overnight time with the father will be a further disruption to B’s routine. She deposed that, as a result of his ASD, B finds any change to his routine “extremely distressing”. On 7 February 2017, B underwent an operation, missing 10 days of school. This was another change of routine that B has had to adapt to.

2. The mother believed B should have time to settle in to school and his new routine before considering him spending overnight time with the father, and that such a transition should be guided by the recommendations of a single expert.

3. In her affidavit, the mother outlined in detail B’s behaviours that led to his diagnoses, and the therapy and support he receives from various agencies.  The mother outlined her contribution to B’s education and development, including that she was responsible for organising B’s therapists to attend his preschool, that she trained B’s teacher’s aide to assist with his ASD, and that she paid $80 per week for a music teacher to attend B’s preschool to provide music therapy.

4. In 2016, B attended preschool from 9.30 a.m. to 2.30 p.m. three days per week. The mother attended at the preschool to provide therapy for B, and coordinated the external therapy that B was receiving whilst at preschool.

5. Earlier this year, B commenced kindergarten. He attends a satellite class at Q School, Suburb S, with only five other students. The mother deposed that this class is a great opportunity for B and that it provides therapy to assist with his visual impairment and speech impairment, as well as occupational therapy and therapy specifically designed for children with ASD.

6. In December 2016, in preparation for B to attend kindergarten, the mother cut out B’s daytime naps.

7. The mother deposed that it is difficult to get B to sleep at night. He refuses to go to sleep during the night without the mother sitting by his bed and holding his hand. The mother deposed that she has a bed-time routine for B which begins with dinner at 5.30 p.m., and concludes at 8.30 p.m. after the mother has read him two bedtime stories. She said she needs to remind B to close his eyes to go to sleep.

8. B was prescribed Melatonin by his paediatrician to help with his sleeping. The mother deposed that the medication does help him sleep. The mother deposed that the father was not supportive of B taking Melatonin.

9. The mother deposed that the father has also been critical of her for allowing B to take antibiotics for his respiratory infections.

10. As to her relationship with the father, the mother deposed that it is very poor and they have no face-to-face communication. All their communication is conducted through text messages, emails, and through their lawyers.

11. The mother deposed that the father has been dismissive and not supportive of the mother’s concerns about B’s health, and that the father had difficulty accepting B’s severe vision impairment and ASD. The mother is concerned that the father “downplays” B’s difficulties.

12. The mother and father have been unable to agree on anything in relation to B. The mother deposed that they particularly have been unable to agree as to his schooling, overseas travel, the extent of B’s developmental challenges, and a consistent parenting style. The mother’s concern with the father also extends to medical intervention and treatment for B. She deposed that having to notify the father of proposed medical treatment causes delays and anxieties. She deposed that instead of supporting her in obtaining and facilitating treatment for B, the father has been obstructive.

13. The mother deposed to receiving an amount of $1,350.67 per month from the father in child support. She received an assistance package of $12,000 from the Government to assist with paying for B’s therapy, which she had spent by February 2015. The mother deposed that she has not received any financial assistance from the father in relation to B apart from his child support payments. She deposed that she has had to pay for B’s needs without the father’s assistance.

14. The mother wishes to travel to Country Z with B. She has a large extended family in Country Z and owns a block of shops, offices and a unit in Country Z, which is managed by her aunt. The unit was built for the purposes of staying there when the mother visits Country Z. She deposed that the father has refused to permit the B to travel overseas with the mother until she obtained a Court Order. In those circumstances, she had to file an Application in a Case in 2013 to travel to Country Z for a holiday with B.

15. The mother denies the father’s assertions that she poses a flight risk. She says that B has great potential in Australia, particularly now after having been accepted into the satellite class, and that she has no intention of moving to Country Z to live. She deposed that, if necessary, she is prepared to place a bond of $40,000 into her solicitors’ trust account.

16. If allowed to visit Country Z, the mother says she will allow the father to have make-up time with B.

17. The mother deposed that on the previous occasions that she has visited Country Z, B has taken time to settle in to the new environment but that he has not been greatly distressed.

The father’s evidence

1. In his affidavit sworn 14 February 2017, the father responded to the mother’s affidavit.

2. The father denied that he has been intimidating, harassing and overbearing towards the mother during changeovers. He says they always interact cordially.

3. The father deposed that he has been open with the mother about working collaboratively together on all aspects of B’s health.

4. He deposed that the parties have been able to communicate and agree on topics in relation to B. He provided the example of the mother’s overseas travel with B in 2015 which he consented to, as well as B’s school and surgery early this year. The father was present during B’s hospital stay in February 2017.

5. The father deposed that the mother excludes him from important decisions made by her until “the very last minute”. He says that her approach has been to hand over forms and demand urgent consent. The father believes that the mother’s affidavit discloses she has ample opportunity to include him in things requiring his consent.

6. The father disagrees that he caused delay in respect of B’s acceptance into the satellite class. The mother did not engage with him at the time of making the application for B to be involved in the satellite program. He said he provided his agreement to the program upon hearing about it from his solicitors.

7. In relation to B’s recent surgery, the father deposed that the mother neglected to advise him of the name and location of the specialist appointment so that he could attend. On the same day of the appointment, the father received another email from the mother requesting his immediate consent for B to undergo surgery with a tonsillectomy and adenoidectomy. The father had no opportunity to liaise with B’s specialist during the diagnosis and was not aware of the recommendations. The father took B to see a GP and then spoke to the specialist. He then consented to the surgery.

8. In relation to financial matters, the father deposes that the parties settled their property matters in August 2015 by way of court orders. Those orders provided, inter alia, that the father pay to the mother a sum of $130,000 in cash and a further $70,000 by way of a superannuation splitting order. The father deposes that in 2013, the mother received over $150,000 for the closure of a business she ran with a friend.

9. The father deposed that he has genuine concerns about B travelling to Country Z, particularly with respect to B’s routine, his ability to spend time with the father, and his ability to withstand international travel. The father deposed that after consenting to the mother and B going on an overseas trip in 2015, he noticed that the trip negatively affected his relationship with B.

10. The father is concerned primarily with international travel disrupting B’s routine. The mother’s consistent position has been that B’s routine should continue, even if that compromised the father’s time with B. The mother has emphasised the importance of B’s therapeutic regime and routine, and that any changes to his routine places him at risk. The father deposed that the mother has not explained why her concerns are not relevant with respect to B travelling overseas for several weeks.

11. The father deposed that B told him he had been to Queensland with the mother. The father was not informed by the mother of that travel. He deposed that B said to him “I’ve been to Queensland again!” and “I went to timezone to play golf, and bowling, and to sea world…”

12. The father denies several allegations made in the mother’s affidavit. He particularly draws attention to the following assertions: that he was obstructive in the mother’s claim for a passport application, that his solicitor has been aggressive and intimidating, that there is a recurring conflict between the parties, that the father is obstructive and uncooperative, that he has been dismissive of B’s conditions and unsupportive of his medication, that he was intimidating during medical appointments, and that he and the mother do not agree to anything.

The report of single expert Dr E

1. On 1 May 2017 the single expert Dr E signed and delivered her report. In the section of the report headed “Evaluation” the single expert describes B as an intelligent and happy child who has meaningful attachment relationships with both of his parents. She concluded from observations and reported interaction that each parent took a “cautious” approach to parenting B and she was concerned that may project onto B and deprive him of relevant and necessary life experiences.

2. The single expert refers to the expert opinion of B’s treating medical and educational persons and notes it is anticipated by them that B should be able to join mainstream schooling in a year or so because of his “autistic problems”. The single expert says that B will continue to benefit from predictable structure and routine in his daily life. She opines that it is also important that B be exposed to new challenges on a gradual basis. Both parents now seem to be understanding and supporting a similar approach to parenting B.

3. Notwithstanding some positive statements made about each of the parents, the single expert notes that there is still a significant level of conflict and suspicion evidenced in the relationship between the parties. Unless the parties change the nature of their relationship, it will likely have a damaging impact on B’s development.

4. Clearly what the single expert is explaining to the parties is that B is a significantly needy child and will be unable to cope with continued parental conflict.

5. When considering the father’s proposal for B to have overnight time with him during the school week, the single expert referred to the geographical distance between the father’s residence and the child’s school and predicted that the time taken in necessary journeys would have an impact upon B and his capacity to learn at school as he may be wearied or exhausted by the travel and change of routine. She recommended that at this time the after school contact between B and his father continue on a weekly basis. She points out that this restriction may be frustrating to the father, however, in B’s interest he needs to contain that and ensure B enjoys his time with his father.  

6. The single expert pointed out that it is important for B to have overnight time with his father for a variety of reasons specified in her report. She recommended that time commence about mid-to-late third term of school time. She recommended that the time be twice a month and for one overnight at a time. She suggested an arrangement such as Saturday morning to late Sunday morning.

7. In making her recommendation the single expert noted that B has a full-time support of staff at his specialist class who will be able to assist in preparing B for overnight time with his father, and who can also monitor the impact on him of that time and formulate strategies to help with any difficulties experienced. In making the recommendation, the single expert stated that one important reason for overnight time was to expose B to normalising experiences.

8. Having sought and received the consent of the parties to the court having access to the report of Dr E and accepting same as evidence in this determination, each gave such consent on the basis that I accept further submissions from them in relation to matters arising from that report.

9. The mother provided her written submission on 27 June 2017. She annexed to that submission a further minute of the order she sought after considering the content of Dr E’s report. That proposed minute of order provides that as from 5 October 2017 B would commence spending overnight time with the father for two non-consecutive occasions each month (or 5 week period). In the minute of order the mother makes other proposals for time for B with his father.

10. In her submission the mother recites important aspects of B’s developmental history. Reference is made to the court orders made 25 May 2017 when the matter was before the trial judge for the “first day” event.

11. The mother informed the Court that the parties had recently entered into consent orders to engage with counselling for the parents. Those orders were made on 22 June 2017.

12. The mother corrected a fact stated by the single expert namely that she was not working. The mother is now working part-time. The work takes up 20 hours and is attended to when B is at school.

13. There are significant portions of the submissions which repeat that put on behalf of the mother in the hearing before me. Evidence such as B’s sleep problems; the fact he has not spent a night away from the mother; and the geographical distance between the parties residences (90 minute drive) were emphasised in the submissions.

14. The mother says she is prepared to follow the recommendation of Dr E in relation to overnight time for B with the father. She points out that she would also need weekend time with B as he is at school now.

15. The mother submits that it is important to gradually increase the time B spends with his father. The mother refers to particular parts of Dr E’s recommendations and submits that her proposed orders cater for the concerns both Dr E has set out and which the mother has in relation to increasing the time B is allowed to spend with his father.

16. The father in his response to the submissions of the mother included a further minute of the order he was seeking. He also answered the submissions of the mother, however, this was largely a repeat or restatement of the evidence he lead and the oral submissions he had made at the time of the hearing before me. I have taken those submissions into account.

Consideration

1. B is a child with significant difficulties. He appears to be working through those difficulties well and progressing as well as can be expected. The hostility currently generated between the parents has the capacity to retard B’s progress and be positively damaging to him. Working together in a co-operative and peaceful and respectful manner is what B clearly needs to allow him to receive the best that can be achieved by him in life. The evidence from the expert is that the parents’ inability to appreciate that fact and implement it is B’s greatest enemy in life.

2. The orders to be made at this time are interim orders. The matter has now been allocated to the docket of Justice McClelland and the parties will henceforth be conducting any further litigation in this matter before him. The challenge at this time is to formulate temporary orders.

3. The single expert raised her concern that the parties had not taken up her recommendation to participate in “parental counselling”. The mother had refused to be part of such counselling claiming that the father “bullied” her in counselling and/or that she felt dominated by him in such counselling. Such an attitude is in part, I consider, driven either by lack of knowledge about the manner in which such counselling would be conducted, lack of confidence in counselling, or possible inability to accept the father is entitled to have a say in the raising of B or lack of regard for anything he might have to input into the care of the child. It may be none of those things. In any event it is pleasing to note the content of the consent orders made by the Court on 22 June 2017 as a result of which the parents will undertake parental counselling with Ms D at G Group.

4. The single expert did acknowledge the effort required to parent a child with B’s difficulties and was congratulatory to the task the mother had performed in that role. However, it should be noted that even where one parent has taken on the vast majority of the care of a child during a significant part of the child’s development, that contribution does not entitle that parent to conclude that the other parent has lost the opportunity/right to be involved in the child’s future. It is, after all, really the rights of the child which take on the greatest importance in the task set to the Court by the Family Law Act. It is the child’s right to be able to have a relationship with each parent, which assumes importance in the determination of parenting disputes.

5. The single expert concludes her report with a summation and warning. She says “B is a six year old child with visual impairment and a diagnosis of autistic spectrum disorder. He needs a predictable environment and he is most likely to respond to distressing disruptions in his care with a shutting down response.” The single expert said that changes in his routines and exposure to new experiences need to be sensitively dealt with and responded to and require the parents to be co-operative and communicative.

6. The order to be made requires the Court to consider the matters set out in s 60CC(3) in order to determine what order may be made as a best interests order for B. The matters which are able to be the subject of determination at this time, albeit on limited evidence and in a guarded manner, I now set out as follows:

   ·B is at an age where no meaningful weight can be given to any expressed wish he might disclose.

   ·The evidence suggests B has a close and dependant relationship with the mother. The report of the single expert attests to the relationship between B and the father. B is clearly enjoying time with his father as observed by the expert.

   ·The mother is the parent who has been primarily responsible for the care and development of B since his birth. It is clear that task has been onerous in the sense that she has had to accommodate the difficulties with which B has been diagnosed as having and working with those difficulties to provide for B to be able to obtain as many benefits from life which he may be able to have. Clearly the single expert is in awe of what she has achieved and aware of the hardship the mother has endured to reach the goals in life which B has obtained thus far.

   ·The father is desirous of participating in B’s life and being able to fulfil the role of a caring and interested father. I accept he has felt some degree of frustration with the rate at which his time with B has been progressed. Clearly he wishes to advance the time he spends with B to a level which the Court may well have expected would be in place for B given his age, had he not had to cope with the difficulties which have been identified in the evidence.

   ·The single expert makes clear that any change in the circumstance in which B lives, including changes in routine, has the potential to distress B and potentially reverse some of the great advances achieved thus far. Consequently the court needs to ensure that the overnight time which the single expert recommends is not rushed and is not of such duration or frequency which would destabilise B.

   ·Each of the parents have been assessed by the single expert to have the capacity to fulfil the roles in B’s life which they currently undertake. Further, the evidence supports a conclusion that the father has the capacity to respond to and provide for the needs B will have during the time he spends the additional time with the father as recommended by the single expert.

   ·The mother has raised her concern that she feels intimidated and overborne by the father during attempted discussions about B. The father does not see how that could be the case. The fact that the parents will now be attending upon counselling will hopefully assist the parents to develop a method of communication and the ability to meet in person where neither feels threatened, intimidated or overborne by the other.

   ·Each parent, by the position taken in this case and through the evidence filed, regard the other parent as worthwhile people in B’s life, each with an important part to play.

The orders to be made

1. The orders in force ( made 13 December 2012) at the time of the hearing provided for B to spend time with the father as follows:

   ·Days 6 and 8 of the husband’s rotating roster;

   ·The hours are those set out in the mother’s Response filed 22 October 2012;

   ·Christmas Day time;

   ·One day during the father’s rostered days off in each 16 day period  when the father is to spend from 10.30 a.m. to 4.30 p.m. with B.

2. As stated earlier, the parties each provided minutes of order which sought different arrangements for the time B is to spend with the father than the current orders. The orders sought by the father are contained in exhibit “C” and are summarised at the commencement of this judgment. The mother tendered two minutes of order. The first, titled exhibit “A” represented her preferred position. The second, titled exhibit “B”, sought orders which would permit the mother to take B overseas and also sought an update of Dr E’s report. In May the parties entered into consent orders which permit the mother to take B to Country Z with her. This is for a holiday during which the father will also spend time with B in Country Z. The report of Dr E was also made available in May 2017, however, the release occurred after the parties completed their first day of hearing before McClelland J.

3. The orders sought by the mother for B to spend with his father initially provided for day time contact only. The father also sought day time only, however, he sought time each weekend on Sunday unless the father is working that day, in which case he sought he have time on Saturday of that weekend.

4. The father also sought time on two days during the school week on an after school basis from 3.00 p.m. to 6.00 p.m. and on special days such as birthdays and Christmas.

5. The father elected to have changeover at the mother’s place of employment at Suburb N.

6. The days when the father is to have time with B is to be, in part, determined by his work roster which he will hand to the mother. The rosters are provided for a series of week well in advance of the occasion when the father will spend time with B.

7. Since the hearing which was conducted before me in this matter, the parties have agreed to orders being made which facilitate the mother being able to take B on holiday with her to Country Z. That fact is set out in the Court record. The parties also agreed that if the father was in Country Z at the same time as the mother he could spend time with B there.

8. Since the hearing before me the mother has changed her position and now proposes orders be made as specified in the minute of order attached to her submissions provided on 27 May 2017. That proposal includes overnight time for B with his father.

9. The new proposal does not allow for B to spend time with his father during the school week as was recommended by the single expert. No reason is advanced for that omission. I propose to order such time take place as the single expert said it was important that it occur.

10. The mother proposes that the father commence to spend overnight time with B “from mid to late in third term of the school year”. The mother appears to have selected the first week of the school holidays at the conclusion of the third school term. I conclude that “mid to late in the third term” would more reasonably be as and from 1 September 2017. I will so order.

11. The proposed orders of the mother suggest that there may be some month where the father would not be rostered off from work for both a Saturday and a Sunday in the same week. As such, the proposed orders of the mother would see B spend no weekend day with his father. Such a circumstance, I conclude, is contrary to the recommendation of the single expert. I will make an order to ensure that B has not less than two weekend single days with his father in any calendar month.

12. The orders which I propose to make will accelerate slightly the program of time for B with his father above that sought by the mother, however, the orders will follow the recommendation of the single expert.

13. The observation of the single expert of what she saw in the interaction between B and his father gives real light to the potential joy B will receive by spending time with his father. That time is less than he might have expected to have spent with his father had he not suffered the medical condition which he does. B is clearly a special and precious child for each parent and, I predict, for their extended families. He deserves a better environment to grow in than that being offered by the dysfunctional and potentially hostile parental relationship between the two people who B is most reliant upon at this stage of his life. It is to be hoped that the counsellor, Ms D, who is known to the Court from her many years of service in the Court as a Family Consultant, can work some magic to have the parents develop a respectful and co-operative relationship which will allow B to move between them unchallenged by awareness of tensions and animosity between them.

14. In order to assist Ms D in her counselling work with the parents I will order that the solicitor for the mother provide a copy of the orders made herein and a copy of these reasons. I will also order that a copy of those documents be provided to the single expert.

I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 7 July 2017.

Associate: 

Date:  7 July 2017