Cullen and Cullen

FAMILY COURT OF AUSTRALIA

CULLEN & CULLEN

[2016] FamCA 110

FAMILY LAW – CHILDREN – PARENTING ORDERS – Best interests of the child – Whether an order of equal shared parental responsibility is suitable in relation to one of the two children – Where one of the two children has autism – Where parents disagree in relation to strategies for dealing with the autistic child’s special needs – Where expert evidence shows the autistic child as having a significant degree of impaired intellectual function – Whether the parents ought to have equal shared parental responsibility – Whether the mother ought to have sole parental responsibility with respect to matters concerning the autistic child’s health and education – Whether the mother must consider the father’s view and inform the father of the decisions made with respect to the autistic child’s health and education.

Family Law Act 1975 (Cth) ss 4, 4AB, 60CC, 61B, 61DA, 65DAA, 65DAC

Hope & Kingston (No 2) [2013] FamCA 720
Tyers & Stafford [2014] FCCA 480

APPLICANT:

Mr Cullen

RESPONDENT:

Ms Cullen

FILE NUMBER:

BRC

10396

2010

DATE DELIVERED:

1 March 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

29 & 30 September and 1, 2 & 3 October 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kalimnios

SOLICITOR FOR THE APPLICANT:

Northside Family Law

COUNSEL FOR THE RESPONDENT:

Ms Martinovic

SOLICITOR FOR THE RESPONDENT:

Hogan Stanton Lawyers

Orders

That all previous parenting orders are discharged.
That the mother and the father shall have equal shared parental responsibility for making all decisions about the “major long-term issues” (as defined in s 4 of the Family Law Act 1975 (Cth)) in relation to B born … 2005 and C born … 2007 (“the children”), save for those decisions that fall within that definition of “major long-term issues” in respect of C’s health and education for which the mother shall have sole parental responsibility vested in her subject to the following conditions:
(a)She shall inform the father of the decision to be made and what she considers is the appropriate outcome;
(b)She shall invite considered input from the father;
(c)She shall, after she receives the father’s considered input, take it into account when making the decision; and
(d)She shall inform the father in writing of the decision she makes and her reasons for doing so.
That the children live with the mother.
That the children shall spend time with the father as might be agreed between the mother and the father from time to time, but in default of agreement, then:
(a)       During school terms:
(i)From when school finishes on Friday afternoon until when school starts the following Monday morning (or Tuesday morning if the Monday is a non-school day for both boys) each alternate weekend commencing on the first weekend of school term each term;
(ii)In addition, from when school finishes until 7:00 pm on one evening each two week period on a night to be agreed between the parties, but in default of agreement, then the first Thursday after the weekend on which they have spent time with the father pursuant to 4(a)(i) hereof; and
(iii)The father shall be responsible for collecting the boys after school at the commencement of the time and returning them to school (or their mother’s residence after the evening visit) at the end of the time.
(b)       During school holidays:
(i)For half of each school holiday period, being the first half of the holidays that fall in or commence in even numbered years and the second half of the holidays that fall in or commence in odd numbered years;
(ii)The time the children shall spend with the father during school holidays in those even numbered years shall commence when school finishes on the last day of school term and shall conclude in the two week long holidays at 4:00 pm on the middle Saturday, and shall conclude in the Christmas holidays at 4:00 pm on the Saturday at the end of the third full week of the holidays;
(iii)The time the children shall spend with the father during school holidays in those odd numbered years shall commence in the two week long holidays at 4:00 pm on the middle Saturday and shall commence in the Christmas holidays at 4:00 pm on the Saturday at the end of the third full week of the holidays shall conclude when school recommences at the beginning of the next school term;
(iv)The father shall be responsible for collecting the children after school when their holiday time with him commences after school and returning them to school when their holiday time with him concludes at the commencement of school; and
(v)The father shall be responsible for returning the children to their mother at her home at the end of the time they spend with him during the first half of the school holidays and the mother shall be responsible for delivering the children to their father at his home at the commencement of the time they spend with him during the second half of the school holidays.
(c)       Special days:
(i)The children shall spend Father’s Day with the father if they are not otherwise with him on that day pursuant to the terms of this Order and they shall spend Mother’s Day with the mother if they are not otherwise with her on that day pursuant to the terms of this Order and that shall take place in accordance with terms agreed upon between the parents, but so that the children can at least wake up in the home of the parent with whom they celebrate that particular day;
(ii)If the children are not otherwise with the father pursuant to the terms of this Order on the father’s birthday, Christmas Day and New Year’s Day then they shall spend at least three hours with him on each of those days and that shall take place in accordance with terms agreed upon between the parents; and
(iii)If the children are not otherwise with the mother pursuant to the terms of this Order on the mother’s birthday, Christmas Day and New Year’s Day then they shall spend at least three hours with her on each of those days and that shall take place in accordance with terms agreed upon between the parents.
That the children shall communicate with each of their parents as may be agreed between the parents, but in default of agreement, then:
(a)When living with the mother, the children shall have telephone, FaceTime or Skype communication with their father on three nights per two week period during school term and on two nights per one week period during school holidays at times to be agreed between the parents with the father to initiate the calls, the mother to give the children privacy and the calls to be of no more than 15 minutes duration; and
(b)When spending time with the father during school holidays, the children shall have telephone, FaceTime or Skype communication with their mother on two nights per one week period at times to be agreed between the parents with the mother to initiate the calls, the father to give the children privacy and the calls to be of no more than 15 minutes duration.
That the parents shall keep each other informed at all times of their residential address, landline and mobile telephone numbers and of any changes to any of those as those changes occur.
That the mother shall keep the father informed at all times of the names and contact details of any doctors or allied health practitioners she takes either of the children to and, by this Order, authorises any such professional to provide the father with any information he might request about the children that is lawful to provide.
That by this Order, each of the parents authorises any school attended by either of the children to give each parent information about the children’s educational, social, cultural and sporting development that is within the school’s capacity to provide and to supply each parent with copies of reports, photographs, certificates and awards pertaining to each child and each parent is authorised to attend any occasion or event at a school either child attends that parents of children at that school are invited to or welcome to attend, regardless of which parent’s care the children are in pursuant to this Order at that particular time.
That the mother shall also keep the father informed about the children’s school, sporting, cultural and other activities and events, such as to permit of his attendance at his discretion.
That each parent shall be permitted to take the children for travel outside the Commonwealth of Australia with the consent of the other parent and on terms as agreed between them.
That during the time the children are with each parent, that parent shall:
(a)Respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b)Speak of the other parent respectfully; and
(c)Not denigrate the other parent or family members or friends of the other parent in the presence or hearing of the children nor allow any other person to denigrate the other parent or family members or friends of the other parent to the children or in the presence of the children.
That the process to be used for resolving disputes about the terms or operation of these orders shall be as follows:
(a)The parents shall consult with a Family Dispute Resolution practitioner or Family Resolution Centre to assist with resolving any dispute or reaching agreement about changes to be made;
(b)The parents shall pay the costs of the Family Dispute Resolution process equally;
(c)In the event that the parents are unable for any reason to have an appointment with the Family Dispute Resolution practitioner and cannot agree on an alternate Family Dispute Resolution practitioner then:
(i)the mother shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability;
(ii)the father shall choose one of the listed practitioners within fourteen (14) days of receipt of the list;
(iii)in the event that the father fails to choose one of the practitioners from the list within fourteen (14) days of receipt of the list, the mother may choose the practitioner.
That unless there are some emergent circumstances, before an application is made to a court for a variation of these Orders to take into account the changing needs of the children, each parent is to take the steps referred to in the preceding Order.
That pursuant to s 65DA(2) and 62B of the Family Law Act 1975 (as amended), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cullen & Cullen 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 BRISBANE

FILE NUMBER: BRC 10396 of 2010

Mr Cullen

Applicant

And

Ms Cullen

Respondent

REASONS FOR JUDGMENT

B and his younger brother, C, were born during the marriage of their parents who are the mother and the father in this parenting orders dispute being determined by me.
B is now 10 years of age. C is now 9 years of age.
I conducted the trial in this matter over five days in late September and early October of 2014. I took written submissions from the parties after reserving judgment. The last of those written submissions that I have considered were filed in early December 2014. It is, therefore, over a year since the hearing effectively concluded. I regret that it has taken me this long to deliver my judgment in the matter. I attribute that to the obligation to hear and determine so many other equally complex matters in the period of time during which my judgment has been reserved. I regret the anxiety that I expect the parents may have experienced whilst waiting for this decision.

Some background

The father was 50 years of age when I heard the trial. The mother was 44 years of age at that same time. They met at work in 2000. Both were public servants at that time. They started living together sometime later in that year and married in 2002. They separated and ended their marital relationship in July 2009, although at the time of the trial they still had not obtained a formal dissolution of their marriage.
On 19 November 2010, by consent, this Court made parenting orders that provided for the parents to have equal shared parental responsibility for the two boys and for the two boys to live with them in an equal time shared parenting regime, living with each parent on a week about basis.
That living arrangement continued until the January 2011 Brisbane flood. The mother’s residence was made uninhabitable by flood waters and she took up residence at her brother’s place whilst repairs were undertaken. Her temporary accommodation could not accommodate the boys during their week in her care, so, by agreement between the parents, the boys lived with their father, who retained the former family home, for the period of approximately six months that it took for the mother’s residence to be reinstated to a habitable state. During those six months they spent day time periods in the mother’s care. When the mother moved back in to her residence the boys recommenced living week about with each of their parents.
In early January 2013, the father unilaterally chose not to deliver the two boys to the mother’s care at the end of their week with him despite the obligations created by the then current Court orders that they had been living by until then. He then filed an application in the Federal Magistrates Court (as the Federal Circuit Court was then still called) seeking orders that the children live with him and spend such time with the mother as agreed between them. He also sought the appointment of an Independent Children’s Lawyer, the preparation of a family report by a named social worker and the preparation of a psychiatric assessment of the parents by a named psychiatrist.
The mother responded to the father’s application, seeking orders that provided a return to the equal shared care regime. She said in an affidavit filed at that time “I do not think there is any reason to change the current parenting arrangements”.
Apparently, Federal Magistrate Cassidy (as her Honour then was), who heard the matter, accepted the mother’s submissions. On 6 February 2013, her Honour made it clear that the children were to return immediately to an equal shared care parenting regime but ordered that the parents jointly engage an expert paediatrician to assess the particular needs of the child, C, who had been diagnosed, at around 4 years of age, as having a fairly high level of autism. Although she ordered a return to it, her Honour was apparently particularly concerned about the impact on C of the pre-existing week about parenting arrangements.
On 13 May 2013, a report by Dr D, a paediatrician specialising in child development and behaviour, was provided to the parents. He had seen them and C for the purposes of preparing the report that her Honour had ordered be obtained.
After that report was provided to the parents, the father amended his application so as to seek equal shared parental responsibility save for matters pertaining to C’s health, for which the father sought sole parental responsibility. He sought orders for B to remain in an equal shared care arrangement but for C to live principally with him and to spend time with his mother each second weekend from Friday to Monday and week about during the school holidays. He did not then consider it in C’s best interest to spend half of the time in the mother’s care.
The mother also changed her position. She sought orders that she have sole parental responsibility for the two boys and that they both live principally with her and spend from Friday after school until before school Monday every second weekend with the father and more than that during school holidays. She no longer considered it in their best interests to spend half of the time in the father’s care.
Judge Cassidy made some more orders in August 2013. They were made with the consent of the parties. The consent parenting orders of 2010 were left in place on an interim basis, save for changes to the regulation of communication between the parents and the children. There were also orders made relating to the medical treatment and medication of C, that being an issue of significant disputation between the parties at the time. A psychologist with experience in producing family reports was also appointed to see the family and prepare a family report for the Court.
In November 2013, more orders were made by Judge Cassidy with the consent of the parties. Those orders also dealt with medical issues and other practical issues pertaining to C and his care, the parties at the time still being in significant dispute about those things. The orders also provided for the parents to attend therapeutic counselling with a psychologist as had been recommended by the family report writer in his first report which by then had been made available to the Court and the parties.
In December 2013, Judge Cassidy transferred the matter to this Court after the mother’s counsel had told the Court she would be calling no fewer than seven experts and the parties had agreed the trial would take more than four days.
By the time the matter came on for trial before me, the family report writer had prepared an updated report and the father had changed his position again. He came to the trial submitting that the existing equal shared parenting arrangements and equal shared parental responsibility orders should now be left in place. Notwithstanding that change in the father’s position, the mother maintained her case for sole parental responsibility to be conferred upon her and for orders to be made that the two boys live principally with her.
At the trial, the Court was assisted by having extensive amounts of affidavit evidence from the parents upon which each was extensively cross-examined by counsel. In addition to the two family reports prepared by the experienced psychologist, Mr E, the Court had the benefit of his oral evidence under cross-examination by both counsel. In addition, evidence was before the Court from Dr D, and two other paediatricians, one who was C’s former treating specialist (Dr F) and one who was C’s treating specialist at the time of the trial (Dr G). A psychiatrist, Dr H, who had been the mother’s treating psychiatrist for many years up to the trial, also gave evidence, as did Ms I who was the speech pathologist who C was seeing up to the time of the trial. Each of those expert witnesses was cross-examined by both counsel.
Significantly, in my view, there were differences of opinion between Dr D and Mr E as to the outcome that might be in the best interests of these two boys. Essentially, Dr D expressed the opinion that C, particularly, with his special needs, would be best served by being in an “asymmetrical” parenting arrangement (living principally with one parent and spending lesser amounts of time with the other parent) given the circumstances of the case. In contrast, Mr E expressed the opinion that he saw no evidence that demanded a change to the existing parenting regime and that the boys might actually bear the burden of any change.
In the end, all of the evidence persuaded me that the boys’ best interests, C’s particularly, would be best served by giving the mother sole parental responsibility for major long-term decisions about C’s education and health but giving the parents equal shared parental responsibility for B and for all other major long-term issues for C, as well as having the boys live principally with the mother during school term, going to spend time with their father on alternate weekends from after school Friday until before school Monday, but for longer periods in the school holidays.

The principles by which parenting orders cases are decided

Pursuant to the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”), when parents cannot reach agreement as to the appropriate parenting arrangements for their children and ask the Court to make parenting orders, the Court is to make such orders as the Court thinks “proper”, and, in so doing, must regard the best interests of the subject child as the paramount consideration.
In determining what is in a particular child’s best interests the Court must consider an extensive list of matters.[1] Those matters, listed as “primary considerations”, include the benefit to the child of having a meaningful relationship with each of its parents, as well as the need to protect the child from physical or psychological harm.
[1] That list is set out in s 60CC of the Family Law Act 1975 (Cth).
The ‘best interests’ inquiry can be a very broad one. That is evidenced by the inclusion in the list of matters to be considered of “any other fact or circumstance that the court thinks is relevant”. Additionally, in determining the proper parenting orders to make, the Court should also be mindful of the objects and the principles underlying those objects that are expressly set out at the commencement of Part VII. The significance of each of the various components of all the applicable statutory provisions will vary from case to case having regard to the evidence and the Court’s factual findings.
Determining what is a “proper” parenting order to make is also subject to the application of a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for that child. That presumption is displaced if there are reasonable grounds to believe that a parent of the child has engaged in family violence or abuse of the child.[2] But even if there are no such reasonable grounds, the Court may still make a different parental responsibility order if persuaded, on the evidence, the presumption should not apply.
[2] Section 61DA(1) and s 61DA(2) of the Family Law Act.
“Parental responsibility” is defined in s 61B of the Act. It means, in relation to a child, all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. In my judgment, it matters most when decisions are to be made about what are defined in the Act as “major long-term issues” in relation to a child. That term is defined in s 4 of the Act to mean “issues about the care, welfare and development of the child of a long-term nature” and includes (but is not limited to) issues of that long-term nature about the child’s education (eg what school he goes to), the child’s religious and cultural upbringing (eg should she be brought up as a Christian or without taught adherence to a particular faith), the child’s health (eg should he have elective surgery to have his tonsils removed or not), and the child’s name.
If a parenting order is made conferring parental responsibility in respect of a child equally on that child’s parents, there are a number of relevant consequences. Firstly, in so far as the further determination of the proper parenting order is concerned, the Court must consider whether the child spending equal time with each of the parents is reasonably practicable and also whether such an arrangement would be in the best interests of the child. Whether it is “reasonably practicable” is to be determined by reference to matters set out in s 65DAA(5) of the Act and whether it would be in the best interests of the child is to be determined by reference to the matters already referred to. If, after those considerations, an order for the child to spend equal time with each of the parents is not made, the same two pronged consideration must be given to arrangements that provide for the child to spend substantial and significant time with each of the parents. The term “substantial and significant time” is also given definition in s 65DAA(3) of the Act.
Another consequence of a conferral, by order, of equal shared parental responsibility is the mandatory requirement, imposed by s 65DAC of the Act, when a decision about a major long-term issue in relation to the child is to be made, for each of the parents to consult the other in relation to the decision and to make a genuine effort to come to a joint decision. The statutory provision goes further though. The decision is actually required to be made jointly by the persons who share parental responsibility. The statutory provision does not provide an alternative or fall-back position. Accordingly, in my judgment, if the decision is not made jointly it cannot be made at all, thus requiring parties to go back to family dispute resolution processes and, if that fails, to the courts, for the decision to be made. In my view, this is relevant to consider when determining whether the conferral of parental responsibility equally on the two persons is in the child’s best interests.

Parental responsibility in this case

There was some evidence in this case about the issue of family violence. After separation, the father obtained an order from a Brisbane Magistrates Court under the Domestic and Family Violence Protection Act 2012 (Qld) against the mother. He said that he had sought such an order after the mother had come around to his residence sometime after separation with the children and was banging on the windows and calling out to him to get his attention. He also gave evidence of another occasion when the mother is alleged to have smashed personal property of his at his residence.
The mother gave evidence that she had sought an order under the same legislation, but acknowledged that her application had been refused and dismissed. Her evidence was that the Magistrate had found that the father had committed an act of family violence against the mother in the past but that it was not likely that he would again in the future. Under that legislation, a finding that violence is likely to happen again in the future if an order is not made, is necessary for the making of an order. The mother told the Court that is the reason her application was dismissed.
Whilst the evidence about these matters and the evidence of the manner in which the parents have communicated with each other over the last few years might meet the threshold necessary to be described as “family violence” having regard to the broad definition of that term contained in s 4AB of the Act, particularly where “repeated derogatory taunts” is included within the examples given in the provision of what “may constitute family violence”, I am not satisfied that these matters actually mitigate against a finding that it is in the best interests of the two boys for their parents to have equal shared parental responsibility for them, even if the statutory presumption is rebutted as a matter of law.
In my judgment, these two parents have demonstrated a capacity to communicate readily with each other over the years since separation. Whilst there is no doubt that some of their communication has demonstrated a lack of respect for the other parent’s role in the lives of their children, a lack of respect for the different personality and the sensitivities of the other parent, and a lack of restraint in respect of things sometimes said, I am not satisfied on the evidence in this case that the parents simply could not suitably communicate with each other in respect of decision making on all of the major long-term issues in the life of their eldest son, B. Whilst B has been having some counselling to help him deal with the emotional impacts of his parents’ separation, there is little evidence that B has suffered in any seriously adverse way as a consequence of the parents not being able to negotiate and agree upon any past decisions about the major long-term issues in his life. I consider that it is in B’s best interests for his parents to continue to share parental responsibility for him and for that to be shared equally. I am satisfied that they should be able to reach agreement on decisions to be made about “major long-term issues” (as that term is defined in s 4 of the Act) in B’s life in the future and that it is reasonable to subject them to the obligatory requirements of s 65DAC of the Act in respect of their decision making.
As for C, but for decisions about his education and his health, I am also satisfied that it remains in his best interests for his parents to continue to share parental responsibility for him. I will though make an order that the mother has sole parental responsibility for decisions about C’s education and his health, subject to an obligation to consult with the father about such decisions before they are made and to carefully consider his views about such decisions before making them herself. After having considered the evidence, I am satisfied that is in C’s best interests.
As I have said, there was a lot of evidence from experts adduced in this case. These experts were cross-examined and their opinions tested. I was very much assisted by this evidence and the process of their cross-examination, particularly as I did not have the assistance of an Independent Children’s Lawyer in the case. It was this expert opinion evidence and the views I formed about the parents’ parenting styles and the way in which they have handled disagreement about C’s care and treatment in the past that led me to the conclusion I reached on this issue.

Dr D’s evidence

Dr D was jointly instructed by the parents. As I have said, his report was obtained at the insistence of Judge Cassidy.
Dr D obtained his specialist qualifications as a paediatrician in 1992 and has clinically specialised in the area of developmental and behavioural paediatrics. He is, I am satisfied, well qualified.
Dr D produced a written report for the parents and the Court in May 2013 and he was cross-examined at the trial before me. He had read six affidavits filed by the father and a case outline. He had read nine affidavits filed by the mother, including one by her. He impressed me with his objective and carefully considered expert opinion.
Dr D observed that the father initially wanted to change the parenting arrangements based on the assertion that the mother does not have sufficient capacity to care for C’s special needs. The father’s case was based on the mother having a history of mental health disorder and alleged demonstrated inability to cope with C’s care and to manage caring for both boys in her household at the same time.
Importantly, in my view, Dr D pointed out that the father asserted that the use of medication (Risperidone) for C is the consequence of the mother’s lack of capacity to manage him, whilst the mother’s case was that C is intrinsically difficult to manage and the medication enables him to be successfully cared for and better able to benefit from intervention.
Dr D went on to express the view that when children have special needs, the “bar” that determines what may be considered “good enough” co-parenting is higher. He said:
Children with special needs have a higher requirement for agreement between parents about the nature of their special needs, the objectives, or goals that are being worked towards, the strategies undertaken to work towards these goals, and the communication and reflection to monitor and modify those strategies across time.
Children with special needs are likely to have greater vulnerability and reduced resilience to the consequences of acrimony and inconsistency of experience if parents are in conflict and unable to cooperate.
Dr D assessed C as having a significant degree of impaired intellectual function. He described C’s general development at less than a two year old level and his language development at less than one year old.
Dr D reported that C does use physical aggression and the doctor said that he observed that when the child was with both parents. It included pinching and biting.
Dr D expressed the view that the documentation he read demonstrated negligible recognition by the father of workload and degree of difficulty in mothering a child with C’s degree of impairment and a lack of recognition of what a mother can uniquely bring to the situation. He considered the content and tone of the father’s documents “appeared to degrade” the mother’s contribution to the children’s care rather than trying to support it.
On the other hand, the doctor expressed the view that the high level of expressed emotion directed from the mother to the father was less about the father’s capacity to care for the children and more about his perceived lack of support for her as a mother and his ability to collaborate constructively.
The doctor considered that the documentation showed that the mother had done more in respect of considering C’s special needs, making efforts to engage with education about those special needs, and making efforts to build partnerships to help C. He expressed the view that the issues the parents had in respect to the administration of Risperidone “reflects deep impasse of belief, understanding and collaboration”. The doctor observed that Dr F had prescribed Risperidone as a tool to assist the parents with the day to day management of C and also to increase opportunity for developmental intervention. Dr D expressed the view that the use of the medication was thought by the father to be “a compensatory mechanism to enable C to be controlled … because of lack of parental competence”.
The doctor reported communication with the Principal of the school C attended. The Principal is said to have reported that much time and energy is taken up managing C’s difficult behaviour such as biting and in settling him each day as his emotional and attentional regulation is very poor. The Principal is also said to have reported that if C were more settled, there would be greater opportunity to teach him and that his development would in all likelihood progress more quickly. He also apparently reported that the use of the Risperidone medication made a noticeable and beneficial difference to C and that his variability from changes in the administration of the medication from week to week made teaching C more difficult. I will return to this issue soon.
Dr D finished his report expressing the opinion that C needs consistency and competency in meeting his day to day care needs. He said that C’s emotional dysregulation and related behaviours originate from his medical condition to a greater degree than from any consequence of his management and care. He expressed the view that even if the father’s case that he manages C’s behaviour more successfully at his house than does the mother at hers is correct, that the benefits of that do not extend to C’s time at school during the time that he is with his father.
Dr D stressed the need for a mechanism whereby therapeutic interventions are coordinated and evaluated on a consistent basis, with strategies being communicated and undertaken across home and school. He effectively said that if this is done and done well, it could make a large difference to C’s quality of life as he gets older. Dr D then expressed the view that consideration of the child’s parenting arrangements involves not just capacity to meet C’s day to day care needs but also a consideration of parental capacity to work systematically in partnership with relevant agencies towards addressing his developmental care needs.
Dr D frankly and respectfully opined that the shared care arrangement “is not working”. He pointed to significant difference of beliefs in regards C’s special needs and how these should be managed, with little apparent goodwill and trust between the parents. He suggested this blocked the ability to appreciate and support the unique and independent contribution of the other parent, with potentially harmful consequences for C. He listed some relevant matters as:
·Negative impacts on the care and mental health of both children, caused by the level of acrimony and expressed negative emotion between the parents;
·Lack of capacity to respectfully negotiate fundamental issues, such as medication;
·The unlikelihood that the level of acrimony between the parents will settle with the current arrangements appearing to perpetuate and build the distortions of belief and express acrimony; and
·The current impasse, evidenced by the litigation, diverting the parents’ capacities, in money, time and energy, away from the well-being of the children.
He then made the following suggestions for consideration:
·Maintenance of C’s relationships with both parents is important;
·Basic decision making such as the use of medication should be set up to occur in a manner that is able to succeed for C and that one parent should have the authority to make decisions on the understanding that these decisions are made collaboratively with appropriate professionals, and reviewed regularly;
·Whilst the father asserts that the mother does not have the capacity and mental health necessary to undertake her duties as a mother with sufficient consistency, reliability and effectiveness, he saw no evidence that would clearly support this claim;
·There is a need to consider not just who is better to manage day to day care needs, but also how best to meet C’s developmental needs. As specialised knowledge by parents with regards to the nature of the disorder, and strategies necessary to manage day to day care and also to build skills and competencies necessary for improved development across time are required, a key capacity necessary for this is the ability to nurture relationships and work collaboratively with professional and educational staff and organisations; and
·Each parent’s capacity to support the other, as if the primary parent does not support the relationship with the secondary parent, there could be pressure over time to diminish the relationship with the secondary parent.
Dr D, in my judgment, did not waiver from the opinions he expressed in his written report during his oral evidence under cross-examination. He was firm in the opinion that decision making around medication needs to be consistent and that it was not in this case. He stressed again the need for parents of a child with autism to have appropriate empathy for each other and a capacity to cooperate functionally. He expressed the view that in this case that was missing and that there needs to be a mutual understanding that this is the goal to strive for.
Although Dr D’s written report was provided in early 2013 and the trial in this matter took place in late 2014, I considered the opinions he expressed in his report still of poignant relevance at the time of the trial. Clearly, each of the parties had been moved by Dr D’s written report when they first received it. The mother changed her position in respect of the parenting orders she was seeking as a direct consequence, thereafter asking for principal responsibility to care for C (and his brother, B) from then on, instead of subjecting him to a week about transitional arrangement. The father changed his position, too, still seeking an order that he have principal responsibility of caring for C, but opting for B to remain in the week about equal shared care regime, thus splitting the boys each second week. As already observed, by the time of the trial, the father had dropped his application for C to be in his principal care, reverting back to an equal shared care proposal in respect of both boys.
After considering all of the evidence, including Dr D’s carefully expressed opinions, I, too, was moved to the view that it is in C’s best interests for one of his parents to have the sole responsibility for making the significant decisions about C’s health and his education, as well as the principal responsibility for C’s day to day care.

Counsel for the father valiantly submitted that Dr D, in expressing the opinions that he did, strayed way beyond permissible boundaries having regard to his particular expertise. With respect, I do not accept that. I was quite satisfied that the opinions expressed by the doctor were attributable to his specialised knowledge based on his training, study and experience. I consider that working closely with parents of autistic children in the care and management of their child has been very much part of his experience in the development and practice of his specialised expertise. He carefully explained his opinions and, where he expressed them by reference to his reading and understanding of the written material that he had been provided with, they were, in my judgment, fundamentally sound. I make that observation in particular, but not limited to, the doctor’s expression of his perceptions of the attitudes and positions of the parents in this matter.

Dr H’s evidence

As noted already, the father’s case began in 2013 with assertion that the mother’s state of emotional and mental health put the wellbeing of the children (particularly C) at unacceptable risk in her care. That is clear by his unilateral action in holding them over at the end of their time with him rather than sending them back to the mother and then immediately asking the court to sanction his action and have the mother psychiatrically examined.
Although the mother was never subjected to psychiatric examination by Court order, by the time of trial, the father had clearly abandoned that position. Clearly, as he was now saying that the equal shared care arrangement should stay in place, he was no longer asserting that such unacceptable risk existed.
For good measure though, it seems, the mother still adduced evidence from Dr H, a psychiatrist. Dr H has been caring for the mother since September 2001, as a consequence of an initial referral after work related trauma, with varying degrees of contact over the years. She was seeing the mother monthly for the first two years and then every two to three months until late 2006. Then, between late 2006 and late 2011, Dr H did not see the mother at all. From late 2011 until the time of the trial, she was seeing the mother sometimes each two weeks and sometimes every second month, depending upon the mother’s need.
Dr H said she had been treating the mother for Major Depressive Disorder and had her on a regimen of “maintenance antidepressant medication” for a number of years. She also referred to the fact that the mother is managed by pain specialists for her chronic pain disorder and is on medication for that. That relates to a lower back injury the mother had also suffered.
Dr H expressed the view that the mother’s mood disorder is “generally well controlled with medication”. In her oral evidence, she said the mother is “meticulously thorough and compliant with her medication” but she acknowledged that the mother needs to stay on the maintenance medication long-term, as going off it increases the risk of relapse.
Dr H expressed disappointment that the mother had been discharged from the public service in more recent times due to the chronic back pain she was suffering. She said she thought the mother’s pain would probably reduce after these Court proceedings were concluded and that the mother could probably then have coped with work with the assistance of medication.
Dr H expressed the opinion that the ongoing conflict between the mother and the father has contributed to some mood vulnerability in the mother. Of some significance, in my judgment, the doctor expressed the view that inconsistent parenting strategies employed between the mother’s household and the father’s household increases the stress on the mother and makes the job for each of them more difficult, with the impact of that upon the mother being, potentially, more serious because of her existing mood disorder.
Just as Dr D had apparently recognised, Dr H also said that the mother had impressed her as being keen to maximise her understanding of C’s needs and appreciative of the professional support that she has from various specialists in respect of C’s general functioning.
To the extent that it is now of relevance, having regard to the father’s position at trial, at the end of Dr H’s oral evidence I was not left concerned that the mother’s parenting capacities are compromised by mental health issues, as the father had been advancing early in his case. Dr H expressed, firmly, the view that the mother’s mental health issues do not affect her ability to make long-term decisions in the children’s best interests. She believed the mother had demonstrated that she seeks out appropriate professional assistance and follows through with the suggestions that are made to her and that she will continue to do that in the future.
I am particularly satisfied that making parenting orders that reduce the opportunities for disputation between the parents will also consequently reduce the risk of the mother’s mental health being compromised in the future. Making orders that place the children in the principal care of one parent will, in my judgment, reduce those opportunities for disputation. I am not concerned that the mother’s mental health is such that she could not cope with the responsibilities and duties that principal care of the two boys would impose upon her.

Dr F’s evidence

Whilst I accept that both these parents dearly love and care for their two sons and that their two sons are closely attached to each of them, there was nevertheless much evidence of parental conflict and disputation before the Court. Much of that was post-separation and a lot of it was even after the court proceedings had been commenced by the father.
Dr F, paediatrician, gave relevant evidence. He was the paediatrician caring for C from several years ago, first seeing him around the middle of 2010. It is clear on the evidence that he was only seeing C in the company of the mother through until late in 2011, when in November that year he saw both parents at the same appointment.
Dr F was the doctor who initially prescribed the medication, Risperidone, for C in September, 2011, apparently to assist in managing C’s behavioural issues. C was put on a trial of it with an introductory dose, being increased over time.
The introduction of this medication to C led to disagreement and conflict between the parents. When the mother told the father about the medication, he was quite upset, apparently concerned for its potential detrimental impact on C. Subsequently, there was a great deal of further disagreement and disputation between the parents over the issue of the Risperidone and Dr F, to his clear and apparent discomfort, was right in the middle of it.
The mother invited the father to attend an appointment she had for C with Dr F to discuss the issue of the medication. That was the appointment that was in November, 2011 that I have referred to above.
In circumstances where Dr F said (at least in Court before me) that ideally a child such as C should continue on the same dosage of the medication in each parent’s household, interestingly, the Doctor nevertheless agreed at that 2011 appointment that the father could give C less of the medication when he was in his weekly care than the mother was advised to give when he was in her weekly care. This only increased the difficulties as between the mother and the father and these went on for over a year thereafter.
The issue was brought back to the Court before Judge Cassidy in August 2013 with orders being made by consent regulating the Risperidone dosage and requiring the parents to attend upon Dr F to receive further advice about the medication and to follow his recommendations in that respect.
Dr F did not accept being thrust into that sort of role as between the parents and told them that he would not continue to care for C in these circumstances. The parents came back before the Court soon thereafter and another order was made by consent in November 2013 in which the parents agreed to have C treated by another Paediatrician, Dr G, and to comply with her recommendations as to medication, including the administration of Risperidone.
The long-standing parental disagreement about the appropriateness of particular medication and recommended dosages was extremely concerning and far from optimal for C.

Dr G’s Evidence

Dr G gave evidence that she had been treating C since late October 2013, that she had prescribed Risperidone at that time, and that she had increased the dose in December 2013. She saw C and the parents again in March and September 2014 and had not altered the dose. The doctor told the Court that the school had confirmed that C is still scratching and biting despite the medication and that she was happy to continue providing treatment for C, fully cognisant of the disputation between his parents.
Notwithstanding the father’s initial strong opposition to C being administered Risperidone, he had modified his position and by late 2013 the parents agreed to both jointly follow the recommendations of the treating specialist. I am not confident that the father would have modified his position had the court proceedings not been on foot and had the mother not demonstrated her readiness to bring the matter before the Court for determination if agreement could not be reached.

Other disagreement relating to dealing with C

There was also evidence of other disputation between the parents in respect of C and his care. Apparently, possession of an iPad with a particular application designed to assist C with his communication had been recommended to the mother as far back as 2012 and she obtained one for C to use in her home.
The mother’s evidence is that when she raised it with the father, he said that he already had an iPad in his household but considered the recommended communication application to be “silly”. The father’s evidence, contrary to that, is that he first learned of the use of the iPad and the application late in 2013 at an appointment with Dr G.
What is not in doubt is the fact that the mother pressed for the father to use the communication application with C on his iPad in his household. At court, in November 2013, the father clearly agreed to orders being made that required both parties to use the application, conditioned, though, on the application being recommended by Dr G or C’s teacher or school Principal. The inference that I consider can be reasonably drawn from that is that one of the parties was still reluctant to use the particular application without further recommendation. I consider it also reasonably safe, on the evidence, to conclude that was the father.
The November 2013 Court order also required the parents to arrange for C’s speech therapist to set up the application and provide a demonstration of its use, if it was to be used.
The evidence satisfies me that the parents clearly remained in some disagreement about this issue for several more months and that well into 2014 they were still sorting out the use of the communication application, with the mother asserting that the father had still not set up the application on a device in his household.
At trial, Ms I, a speech pathologist called by the father, told the Court of her dealings with the parents from April 2014, after she was contacted by the mother, to help them with the communication application. She told the Court that she assisted the father to set up the communications application. She also told the Court that ideally C should have one tablet device with the communication application installed, that he would take between his parents’ households. At one point, the father who already had an iPad in his household but who needed to take it to work with him, apparently proposed the joint purchase of an iPad for C to use between households, but the mother, who already had one in her household did not agree to contribute to the extra cost of buying another one. At the same time, the mother was not prepared to let the one she had acquired, travel with C between households, and the father was not prepared to let the mother have access to his iPad to ensure that the communications application on it was kept updated to the same level as the one in her household. Such is the apparent level of mistrust between the parents, that even this relatively simple matter could not easily be resolved to C’s ultimate benefit.

Evidence about the father’s emotional wellbeing

Not only was there evidence before the Court of the mother historically having mental health issues, but also there was evidence that the father had, too, been off work on sick leave related to his mental and emotional wellbeing. The evidence demonstrated that he was on such sick leave from around the end of February 2012 until the end of July 2012 and again from 23 January 2013 to 10 March 2013. This was attributed by him to work place bullying he was experiencing and to work related trauma he experienced in Brisbane. Of some note is the fact that this evidence only came out in the father’s oral evidence under cross-examination. In fact, rather curiously, the father could not even remember the detail of the extent of this leave when first questioned about it. He initially told the Court he was off work for a year from around May 2011 to April 2012. That was quite wrong and it only became clear when he brought his employment leave records in to the Court on the next day of the trial.
Indeed, from the records the father produced it can be seen that the second period of this extended sick leave, attributed to issues with his emotional well-being, began just after the time when he decided to unilaterally hang onto the two boys when they were with him during school holidays and when he applied to the Court for orders that they live principally with him, essentially relying upon assertions that the mother’s state of mental health was putting the boys at risk. The father said nothing in his trial affidavit about his own emotional health issues that he was experiencing at that time. I do not know whether he disclosed that to the Federal Circuit Court Judge when the matter was before her. It is, in my view, a significant omission from his evidence in chief that he relied upon in this Court.
The evidence showed that the father was referred to and attended upon a psychologist in and from early March 2012 on a mental health plan written by his treating GP. The psychologist’s notes were adduced into evidence. They reflected the father reporting that many issues, including problems with the mother, were making him very angry and stressed at that time. He is recorded as having reported difficulty in coping with his workplace arrangements and other stressors. The notes also record him having reported that he was exposed to family violence himself as a child and that he did not have a relationship with his own father, after his parents separated, even though he saw him for a couple of weeks a year. He is recorded as reporting that his father was a “disciplinarian monster” and that he was subjected to a lot of physical punishment from him and hated having contact with him. He is also recorded as having reported having had counselling sessions before but that they had not been of much benefit to him.
The evidence was that the psychologist recommended the father take an antidepressant medication, but the father declined, after further discussion with his GP. The father’s explanation of his reasons for that caused me to form the view that he was not persuaded of the benefits of taking anti-depressant medication.
The father also agreed in evidence that he was generally resistant to the treatment suggestions of the psychologist. It is, accordingly, difficult to determine that the father benefited from the therapy, although it is acknowledged that he did eventually go back to work, evidencing his own assessment that he was well enough to do that. At the time of the trial, he was no longer being exposed to general duties work.
Notwithstanding this evidence, I am not concerned that the father’s mental health is such that his ongoing capacity to care for the two boys on a day to day basis is compromised.

Mr E’s evidence

Mr E, psychologist, saw the parties and the boys and prepared a family report in August 2013 and an updated report in September 2014. In addition, he was cross-examined at the trial.
Mr E expressed the opinion in his first report that each of the parents maintained highly specific, although divergent views about pre and post relationship difficulties and the more recent events that had brought them to litigation over parenting arrangements. He opined that both parents were likely minimising their own individual contributions to these difficulties. As other experts did, Mr E confirmed significantly polarised positions in respect of co-parenting challenges, particularly in respect of “micro-managing C’s needs”.
Mr E referred to, and set out, a number of pre-conditions that appear to exist in matters involving “sustainable shared care”. He went on then to express the opinion that few if any of these “critical pre-conditions” likely existed in the parent’s former or post-separation relationship history and are “not substantially evident in their current awareness or co-parenting capacities”.
Mr E pointed out the father’s adamant view that the mother’s capacities to provide stable and nurturing care for the children were seriously impaired, but Mr E himself, said he held no serious concerns regarding the mother’s functioning having interviewed her and subjected her to psychometric testing.
Mr E went on (in the context of the father’s application then being for the children to live with him and spend less time with the mother and the mother proposing that they live mainly with her) to express the opinion that changing the orders to create a primary resident parent without “notable improvement in the parent’s capacity for co-parenting (or at least, functional parallel parenting) would appear to be unsustainable”.
Mr E then recommended targeted therapeutic intervention to address the parties’ motivation and capacity for reasonable co-parenting. He set out some specific therapeutic targets with a time frame of six to eight months and concluded by asserting that “significant instability and a range of personal challenges continue to exist in the separated family system; that would undermine the capacity of the Court to currently provide sustainable and Final Orders in the children’s best interests”.
By the time of his updated report, the context of the parties’ respective applications to the Court had changed. The father was now seeking to have equal shared parenting remain in place, whilst the mother formally sought that she be given principal responsibility for caring for the two boys, with them spending alternate weekends and half holidays with their father.
In his updated report, Mr E reported that the parties had attended upon a psychologist, Ms J, for therapeutic counselling over a period of a few months. He had spoken with her. She told him that after some individual sessions and three couples’ sessions with the parties she could not discern any real or substantial changes in their ability to co-parent or even to communicate better. Unsurprisingly, having regard to all of the other evidence, Ms J said they demonstrated very different styles with communication and parenting.
I am satisfied that this therapeutic counselling did not continue because the father decided not to continue it, regarding it of little benefit to the couple, telling the mother he preferred to spend his money on the boys. Interestingly, in the light of that decision, the therapist herself was reported by Mr E as expressing the view that the father was committed to the therapeutic process. In any event, it did not continue and Mr E expressed the opinion that there had been no lasting improvements in communication, or co-parenting motivation and capacities, although, he said, there was some consensus that there had been some recent improvements in communication between them.

Clearly, the necessary pre-conditions that Mr E had identified for sustainable shared care had not been achieved. However, Mr E went on to express the view that each parent presented as reasonable and capable in respect of their care of the children (despite each of their perceptions about the other), nevertheless with differences in style and emphasis. He did not report any issues of concern or high risk with either, generated by psychometric testing.
Although those “necessary pre-conditions” for “sustainable shared care” had not been achieved, Mr E expressed the opinion in the end that “the current underdeveloped status of co-parenting and parenting style differences do not provide substantive reasons for change from current care arrangements”. He went on to conclude by saying that any changes to care arrangements may actually result “in a disproportionate burden of adjustment being placed on one or both of the children”.
In doing so, in my respectful judgment, knowing the matter was proceeding to consideration of final orders, Mr E did not appear to revisit the necessary preconditions for sustainable shared care that he had set out in his first report and which he had said were absent from this case at that time. He had, I understood, apparently hoped that might be able to be remedied by the therapeutic intervention that was put in place. It seems clear that it was not, but nevertheless a move from equal shared care was not recommended.
I consider that Mr E placed significant weight on what he considered was the need for a cautious approach to creating change in the life of an autistic child as support for his view that change from the shared care arrangements might be burdensome for the children. However, he forthrightly and appropriately acknowledged, when asked, that in respect of assessing and commenting upon the needs of an autistic child he would not “go head to head with someone with that background” (referring to Dr D).
In my respectful judgment, Dr D’s evidence supports a view that change in the life of a child like C, brought about by moving between households of his parents on a week about basis, in circumstances where his parents have markedly contrasting parenting styles and different views on how to deal with all of the challenges presented in parenting C, and where there is a distinct lack of co-operative, supportive parenting on both parents’ part, is the sort of change that can be problematic for the autistic child, particularly in the long-term.
If, as Mr E pointed out in his first report, the necessary pre-conditions for sustainable shared parenting were present, the cautious approach to changing such a pre-existing arrangement would, in my judgment, clearly be appropriate. On all of the evidence, I am quite satisfied that Mr E was correct when he identified the absence of those necessary pre-conditions, but I am, respectfully, not satisfied that he is correct when he suggests that current circumstances nevertheless do not warrant changing the existing shared parenting arrangements.
I found the carefully expressed opinions of Dr D to be persuasive and significantly determinative in this particular case. I am satisfied that C’s particular needs require consistency of parenting approach, not just to the provision of his day to day care, but also to the optimisation of his long-term developmental requirements through careful and considered engagement with experts who can provide care, advice and support as he grows.
Satisfied that the mother has demonstrated the greater preparedness to seek out and appropriately engage with such experts in the past than the father has, as well as a less critical and demeaning approach to the father’s parenting capacities and his involvement in co-parenting than the father has demonstrated in respect of the mother, the evidence persuades me that the parental responsibility for major long-term issues about C’s health and education should be vested solely in the mother. Nevertheless, I consider it appropriate to condition the exercise of that sole responsibility on prior consultation with the father so as to ascertain his views on the issue.
The evidence also persuades me that C’s best interests will be met by making a parenting order that provides for him to live principally with his mother and to spend alternate weekends with his father in addition to half of all of the school holidays. This will provide him with the singular consistency of parenting that I am satisfied, on the evidence, C needs.

As for B

B is now ten years of age. Mr E reported the opinion that B, when he saw him (he was then 7 going on 8), was an enthusiastic, open, age appropriate and reasonably well adjusted child. Mr E reported that B had expressed the view, when discussing care arrangements, that he liked things “as they are” (shared care, I infer) “because you get to see the other parent sometimes, and you don’t miss them that much”. He is also reported to have added “and also, I think it’s more fair the way it is”.
B’s responses to Mr E’s questions about his feelings about his parents and their households reflect nothing but love for, and attachment to each of his parents. I do not consider B’s reported views about the living arrangements to be reflective, though, of strongly held views that must be treated as determinative in the matter, particularly given his age at that time and the feelings he expressed about both of his parents.
Although the father had at one stage during the litigation proposed a different living arrangement for B than for C, by the time of the trial he was no longer doing so and wanted the equal shared parenting time to remain in place. I take that as an ultimate concession on his part that the two siblings should not be separated in terms of their living arrangements, whatever those might be determined to be by the Court.
There is nothing about the matter that persuades me that B’s or C’s best interests would be served by them being separated. Accordingly, having determined that it is in C’s best interests to live principally with the mother, I am satisfied that it is in B’s best interests also to live principally with his mother, such that he is not separated from his brother. I do not consider it in B’s best interests to continue to live on an equal time basis between the parents where that would separate him from C for one of the weeks.
In my view, having discharged my statutory obligation pursuant to s 65DAA(1) of the Act, I must move on to consider whether it is in B’s best interests to spend substantial and significant time with each of his parents and whether that is reasonably practicable pursuant to s 65DAA(2).
My determination to provide for both boys to spend alternate weekends from after school Friday to before school Monday (and before school Tuesday, if Monday is a public holiday) and half of all their school holidays and other special days such as Father’s Day and the father’s birthday (as well as some time on the boys’ birthdays) with the father, in my view, reflects my satisfaction that it is in B’s best interests to spend substantial and significant time with each of his parents and that it is reasonably practicable for that to occur, having regard to how those terms are defined in ss 65DAA(3) and (5).

My findings about the parents and their evidence

With respect to the father and his legal representatives, the nature of the case he sought to make out against the mother when he first held on to the boys in early 2013 presented him with real difficulties in running his case for equal shared parenting to continue when the matter came on for trial. At the trial, the father asserted, essentially, that he had changed his views about the mother and her capacities to properly care for the boys, particularly C, and that he now accepted that keeping things as they were before he unilaterally changed them was in the boys’ best interests.
However, I was not particularly convinced that he had actually changed his views. An example of that presented itself in his assertion, in response to a question his own counsel asked him about the nature of communication between him and the mother, that the mother’s communications with him were “difficult”, demonstrated “no common sense” and were “irrational”. Indeed, he maintained, even to the end of the trial, that communication between them in the future should be contained to texting and emails, rather than verbal communication. The evidence suggested that historically the parties’ communication by text and email was less than ideal for effective and appropriate, child focused co-parenting and I was far from satisfied that leaving equal shared parenting in place with no actual change in their communication methods, style or attitudes, particularly the father’s attitude towards the mother and communication with her, would meet the best interests of these two boys.
Although it could not be said that the mother’s attitude to the father and his role in the boys’ lives cannot be subject to any criticism, I was more than satisfied, even considering that she pressed for sole parental responsibility and a small reduction in the time that the boys spent in their father’s actual care, that she did fundamentally respect his role in the boys’ lives and also the boys’ needs to maintain meaningful relationships with him. I did not form an impression that the mother grasped opportunities to reduce the children’s time with their father or to whittle away at their relationship with him. Indeed, the undisputed evidence that she willingly let the boys live with him for several months after her residence had become uninhabitable due to flooding is persuasive in that respect, in my judgment.
Like Dr D, I, too, was satisfied that the mother’s criticism of the father arose out of and was related more to her perceptions of his unwillingness to engage appropriately with her in co-parenting the boys rather than a view that he could not offer the boys suitable care. I am satisfied that it was that perception which motivated her, particularly after reading and considering Dr D’s written report in 2013, to apply to change the parenting orders so that the boys lived principally in her care, a perception she still held at trial. As I have indicated already, I accept, after considering all of the evidence, that there was factual justification for her perceptions.

The father’s specific submissions about parental responsibility for C

In his oral and written submissions, counsel for the father referred me to a judgment of my judicial colleague, Justice Cronin in Hope & Kingston (No 2) [2013] FamCA 720 and a judgment of Judge McGuire of the Federal Circuit Court in Tyers & Stafford [2014] FCCA 480. In each of those judgments, their Honours had made orders that the parents equally share parental responsibility for autistic children, despite evidence of significant differences in their parenting styles and attitudes to the autism diagnosis, unless one of the parents did not agree with a recommendation of “the multi-disciplinary team” of experts advising the parents in those cases, in which case the parent who agreed with the recommendation was given sole parental responsibility for that issue.
For the father, it was submitted the same order should be made in this case. It was submitted that the parents had effectively been working under such arrangements since November 2013, with Dr G being the treating paediatrician.
As it can be seen already, I have rejected that proposed manner of dealing with parental responsibility for C in this case. It is trite to say that every single case that comes before either the Federal Circuit Court or this Court must be dealt with on its own facts. In respect of those two decisions I was referred to, I note that “a multi-disciplinary team of experts” working with the autistic child and the parents was referred to and that Justice Cronin, in his judgment, referred to that team in that case being co-ordinated or lead by a particular specialist. In this case, it is not my understanding that there is a team of experts, working together being led by one particular specialist.
Dr G was C’s treating paediatrician at the time of the trial, but was not, at least in my understanding of the evidence, leading a group of experts working as a team in the provision of services to C and his parents. As such, there will not be advice and recommendations as to treatment options coming to the parents from a co-ordinated team, the members of which have each other for support and who channel their advice to the parents through a team leader.
I do not consider it in C’s best interests to make a parental responsibility order that puts a medical, allied health or educational expert in the position of providing advice and recommendations to C’s parents knowing that the parent who says they will accept that advice gets to solely exercise the parental responsibility to make that decision. With all due respect to the judges who made orders like that in those other cases, I am not of a view that it is a proper order to make in this case. I consider that an order like that in this case, with different experts being involved in various ways across the spectrum of dealing with C’s health and education, could potentially create further disagreement between the parents, including uncertainties around precise outcomes, and unfair and distracting pressures on those experts. Indeed, disagreement about the identity of the particular expert whose advice and recommendations was to determine the course of decision making and action could potentially be a serious problem.
As I have said, I am more than satisfied by the evidence that the consistency of a single-point of responsibility for the major decisions that have to be made in respect of C’s health and educational development and outcomes is what is in his interests. The parental responsibility order I make will not deprive the father of the opportunity to be involved, alongside the mother, in consultation with the experts, or the opportunity to provide his own input into the process of the decision making.

Some other orders

There are a number of orders that both parties asked for in identical terms that I am prepared to make and consider to be in the best interests of the two boys. They relate to the way in which each parent talks about the other in the presence of the boys and also to the process to be used for the resolution of disputes in the future.
Further, each parent sought orders dealing with the issue of overseas travel with the children. I consider it entirely in the boys’ best interests to travel internationally with each of their parents, but only on terms agreed to by the other parent. I expect that they will be able to reach such agreement, particularly if each wishes to avail themselves of the opportunity for overseas travel with the boys at some time.
I make the orders set out at the commencement of these reasons considering them to be the proper orders to make having regard to the best interests of the two boys as the paramount consideration.

I certify that the preceding one hundred and twenty-two (122) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 1 March 2016.

Associate:

Date: 1 March 2016

[2016] FamCA 110

1 March 2016

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