DAUBNEY & MALYARD
[2020] FCCA 62
•23 January 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DAUBNEY & MALYARD | [2020] FCCA 62 |
| Catchwords: FAMILY LAW – Parenting – child with special needs – high conflict parental relationship – orders to spend time with the father. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: MRR v GR [2010] HCA 4 |
| Applicant: | MS DAUBNEY |
| Respondent: | MR MALYARD |
| File Number: | WOC 856 of 2016 |
| Judgment of: | Judge Altobelli |
| Hearing dates: | 2 – 3 December 2019 & 5 December 2019 |
| Date of Last Submission: | 5 December 2019 |
| Delivered at: | Wollongong |
| Delivered on: | 23 January 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Steward |
| Solicitors for the Applicant: | Carter Ferguson |
| The Respondent appeared in person |
| Counsel for the Independent Children's Lawyer: | Mr Alexander |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW |
ORDERS
All previous parenting orders be discharged.
The Mother have sole parental responsibility for X born in 2015 (‘the Child’).
For the purpose of Order 2 and except in the event of an emergency, before making any major long term decisions in relation to the Child, the Mother will consult with the Father as follows:
(a)Advise the Father in writing as soon as practicable but in any event not less than fourteen (14) days in advance of any decision on major long term issues proposed to be made by the Mother;
(b)Provide the Father with relevant information relating to the decision;
(c)Provide any necessary authorities to enable the Father to obtain any additional information relevant to the long term issue;
(d)Consider any response from the Father before making a decision; and
(e)Inform the Father of any decision made no later than 48 hours after the making of the decision.
The Mother not relocate the Child’s residence to a location outside the Region B/Region C region with unless:
(a)With the written agreement of both parents;
(b)Otherwise Ordered by a Court; or
(c)The Father has relocated and the effect of the Mother doing so does not make the Orders for the Child to spend time with the Father significantly more difficult to be complied with.
The Child live with the Mother.
The Child spend time with the Father, unless otherwise agreed in writing between the parents, as follows:
(a)Commencing the date of these Orders:-
(i)On an alternate week arrangement,
A.In week 1 from 3:00pm on Friday to 9:00am on the following Tuesday,
B.In week 2 from 3:00pm on Monday to 9:00am on the following Tuesday; and
(ii)During the weekend that comprises Fathers’ Day, from 3:00pm on Friday to 9:00am on the following Monday;
(iii)From 5:00pm on 24 December to 9:00am on 26 December in 2019 and each alternate year thereafter;
(iv)From 9:00am on 26 December to 5:00pm on 27 December in 2020 and each alternate year thereafter.
(v)From 3:00pm Friday to 5:00pm Monday on a long weekend other than the October long weekend where
(i)The Father does not otherwise have time with the Child on this weekend;
(ii)The Mother has spent time with X on the October long weekend; and
(iii)With such weekend to be nominated by the Father on 6 weeks notice.
(b)Commencing on 1 February 2021:
(i)Order 6 a (i) be discharged;
(ii)During NSW school terms in alternate weeks, commencing on the first Friday of each term, from 3:00pm on Friday to 9:00am on the following Wednesday;
(iii)For a period of one week during NSW school holiday period at the end of terms 1, 2 and 3, from the conclusion of school on the last day of term to 3:00pm on the same day on the following week, or if that school holiday time would include the October long weekend, from 5:00pm on the Monday of the long weekend until 3:00pm on the same day on the following week;
(iv)During the NSW school holiday period at the end of term 4 in 2021, for two periods of one week with the first week to commence at 3:00pm on the first Friday in January, concluding at 3:00pm on the following Friday, and the second week to commence at 3:00pm on the third Friday in January, concluding at 3:00pm on the following Friday;
(v)During the NSW school holiday period at the end of term 4 in 2022 and each year thereafter, for a period of two weeks commencing at 3:00pm on the first Friday in January and concluding at 3:00pm on Friday two weeks later; and
(vi)During the NSW school holiday period at the end of term 4 in 2023 and each alternate year thereafter, for a period of three weeks commencing at 3:00pm on the last day of term and concluding at 3:00pm on the same day three weeks later; and
(vii)During the NSW school holiday period at the end of term 4 in 2024 and each alternate year thereafter, for a period of three weeks concluding at 3:00pm on the Friday prior the last day of the school holiday period and commencing at 3:00pm on the Friday three weeks earlier (the last three weeks of the school holidays such that the Father’s time concludes on the last Friday of the school holiday period).
Order 6 above (the Father’s time) be suspended as follows:
(a)During the weekend that comprises Mothers’ Day, from 3:00pm on Friday to 9:00am on the following Monday;
(b)During the October long weekend, from 3:00pm on Friday to 5:00pm the following Monday;
(c)From 3:00pm on 25 December to 5:00pm on 26 December in 2019;
(d)From 5:00pm on 24 December to 9:00am on 26 December in 2020 and each alternate year thereafter; and
(e)From 9:00am on 26 December to 5:00pm on 27 December in 2021 and each alternate year thereafter.
Unless otherwise agreed in writing between the parents, changeover shall take place at the Child’s school/preschool on days that the Child attends school/preschool, otherwise changeover take place at McDonald’s in Suburb N between the Father and the Mother, or their agent, with the Mother to ensure that Mr D does not attend the changeover location at the time of changeover.
Commencing 1 January 2020, the Mother ensure that the Child is enrolled and attends preschool at least four days per week with each parent to be liable for out of pocket costs (after child care benefits are applied) equally and for that purpose:
(a)Each parent pay his or her share to the Child’s pre-school directly; and
(b)Such payments to be in addition to any amount assessed to be paid by the child support agency.
Each parent may attend events at the Child’s school and extracurricular activities that parents ordinarily attend.
For the purpose of facilitating communication between the parents, each parent communicate regarding the Child via Divvito or such other application or website as the parties agree in writing (“the website”), except in the case of emergency.
The Mother and Father are to keep each other advised about the following:
(a)any occasion that the Child has been hospitalised or is due to be hospitalised as soon as practicable before or after admission;
(b)any medical problems or illnesses suffered by the Child whilst in that parent’s care as soon as practicable becoming aware of the problem;
(c)any medication that has been prescribed for the Child and details about how often this medication should be taken together with the required dose as soon as practicable after the prescription is prepared;
(d)any significant school or religious functions the Child is required to attend within 48 hours of becoming aware of the function;
(e)their current residential address and any change to that address at least 24 hours prior to such a change;
(f)their mobile telephone number and their email address within 48 hours of any change to that telephone number or email address.
The parents shall ensure that they attend upon the same therapists who are engaged with the Child and for this purpose:
(a)Within seven (7) days of these Orders, the Mother shall inform the Father in writing of the name and contact details of the therapist working with the child in relation to her behavioural challenges;
(b)The Mother shall keep the Father updated of any changes to the child’s therapists within seven (7) days of any such change;
(c)Within seven (7) days of receiving the name and contact details of the Child’s therapist from the Mother, referred to above, the Father shall make an appointment to attend upon that therapist with the Child and thereafter is at liberty to attend upon the Child’s therapists at such times and frequencies as he arranges;
(d)If it is possible each parent will ensure that their appointments with the Child’s therapist are at time when the Child is ordinarily in their care;
(e)Where the Child’s therapist is not available for appointments at times that the Child is ordinarily in the care of a parent, then that parent may arrange an appointment at another time and provide the other parent with at least seven (7) days notice of the appointment;
(f)Where a parent has arranged an appointment with the Child’s therapist in accordance with order 12 e) above, the other parent will make the Child available to attend the appointment with the parent who made the appointment; and
(g)Leave be granted to each parent to provide a copy of the Single-expert report of Dr E dated 4 December 2018 to the Child’s therapist.
Each parent notify the other parent of any appointments made for the Child in relation to her health, welfare and/or development.
Except in case of emergency, the parents ensure any appointments for the Child to attend upon a Paediatrician, are made with Dr F, unless otherwise agreed in writing between the parents.
The Mother notify the Father of the name and address of the Child’s treating GP and keep him updated within seven (7) days of any change to the Child’s treating GP.
Except in case of emergency, the parents ensure any appointments for the Child to attend upon a GP are made with the GP that the Mother has notified the Father of in accordance with the Order immediately above.
The Father shall:
(a)Ensure that the Child is reviewed by Dr F once in the first half of the year in 2020 and 2021;
(b)Advise the Mother of the date of the appointment within seven (7) days of such appointment being made;
(c)Accompany the Child to the appointment; and
(d)Make the Child available for the Mother to take the Child to appointments made by the Mother pursuant to the order immediately below and the Father shall not accompany the Child to such appointments made by the Mother.
The Mother shall:
(a)Ensure that the Child is reviewed by Dr F once in the second half of the year in 2020 and each year thereafter until such time as Dr F deems it no longer necessary;
(b)Advise the Father of the date of the appointment within seven (7) days of such appointment being made;
(c)Accompany the Child to the appointment;
(d)Ensure that the Child engages with any development therapies (such as occupational therapy or speech therapy) and educational work (such a tutoring) recommended by Dr F or the Child’s school;
(e)Notify the Father of all initial appointments made with services for treatment and/or therapy and provide the Father with the contact details for such services, within seven (7) days of making such appointments;
(f)Provide the Father’s name and contact details to all therapeutic and educational services that the child is engaged with and request that they include the Father
(g)Make the Child available for the Father to take the Child to appointments made by the Father pursuant to the order immediately above and the Mother shall not accompany the Child to such appointments made by the Father.
Each parent may contact any of the Child’s treating therapists, including medical practitioners, and/or schools to obtain information about the Child’s treatment and/or progress from such therapists directly and this Order operates as the necessary authority for the Child’s treating therapists and/or school to provide to each of the parents information about the Child’s treatment and/or progress.
Leave be granted to each parent to provide a copy of the Single-expert report of Dr E dated 4 December 2018 to their own treating mental health practitioners.
The Mother continue to engage with the Perinatal and Infant Mental Health Service until such time as the service deems it no longer necessary.
The Mother engage in any treatments and with any services recommended by the Perinatal and Infant Mental Health Service, the Department of Communities and Justice or S Centre until such time as that service deems it no longer necessary.
The Mother forthwith arrange to engage with a psychologist, or appropriately experienced counsellor, for the purposes of assisting the Mother with issues relating to family violence, alcohol use and the use of illicit drugs, and continue to engage for a period of 12 months at a frequency determined by the counsellor.
Without admissions, for the personal protection of the Child, pursuant to s68B of the Family Law Act 1975, each parent is restrained from allow the Child to remain in the presence of excessive conflict or violent behaviour and in the event that a parent is involved in any such behaviour while the Child is their care, that parent must report the incident to the Police force of the state in which that parent is resident as soon as practicable after the incident has commenced.
The Mother and the Father are each restrained by injunction from:
(a)abusing, insulting, belittling, rebuking, or otherwise denigrating the other parent or a member of their household, within the presence or hearing of the Child, or the other parent; or
(b)allowing the Child to remain in the presence or hearing of any person denigrating the other parent or a member of their household;
(c)consuming alcohol to excess, such that their alcohol consumption would prohibit them from legally driving a car, while the Child is in their care;
(d)consuming or being affected by illicit drugs or remaining in the presence of any other person consuming or affected by illicit drugs while the Child is in their care.
The Mother not consume alcohol on more than two days per week.
The Mother not allow Mr D to be present in her home when the Child is in the Mother’s care or otherwise allow the Child to remain in the presence of Mr D, until such time as the Mother and Mr D have commenced relationship counselling AND Mr D has enrolled, continues to attend and, upon successful completion, the mother provides to the father copies of the certificates of completion of:
(a)The ‘Taking Responsibility – a course for men’ course facilitated by Counselling G or ‘Facing up’ facilitated by O Care; AND
(b)The ‘Managing Anger’ course facilitated by Counselling G, or an equivalent anger management group therapy course.
The appointment of the Independent Children’s Lawyer be extended for 12 months.
The Independent Children’s Lawyer recommends a counsellor to provide counselling to each parent intended to improve their communication.
The Mother undertake (by provision of urine screen in accordance with the Australian/NZ standard 4308:2008 or any subsequent approved standard) chain of custody urinalysis for drug screening on no more than one occasion each calendar month and within 48 hours of receipt of a request to do so from the Independent Children’s Lawyer with such request to be communicated by email, SMS communication or facsimile transmission to the Solicitor for the party or the party directly and provide copies of the results of the tests to the other party and the Independent Children’s Lawyer within 48 hours of receipt of same. For the purposes of this order each party if unrepresented shall within 24 hours provide to the Independent Children’s Lawyer details of their mobile phone number, email address if available and facsimile phone number if available.
IT IS NOTED that publication of this judgment under the pseudonym Daubney & Malyard is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 856 of 2016
| MS DAUBNEY |
Applicant
And
| MR MALYARD |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about X, who is 4½ years old. The Court must decide where X is to live, and how much time she should spend with each parent. X currently lives with her Mother, and spends time with her Father. These Reasons for Judgment explain why the Court has ordered that X continues to live with her mother, but is to spend substantial and significant time with her father.
Background
Unless indicated to the contrary, the matters set out below constitute findings of fact. The Applicant in this case is X’s mother. She is 25 years old, and lives in the Region B region. The Respondent is X’s father. He is 35 years old, and also lives in the Region B region. The Mother is a full-time carer for X, and for her sister, Y, who was born in 2019, and whose father is the Mother’s former partner, Mr D.
The parents commenced their relationship in 2014, and started living together shortly thereafter. On either account of the relationship, they were both cannabis users at the time, and moved around between the Region B region, and Queensland. By early 2015, they had moved to rented accommodation in suburb of City A, and the Father was working in Sydney. X was born in 2015. The relationship between X’s parents was increasingly difficult. They argued a lot. The Mother struggled with parenting, and the Father struggled with being a Father, as well as the main income earner.
By about September 2015, it was clear that the Mother was experiencing postnatal depression. She described as symptoms to her doctor: low mood, irritability, feeling emotional, crying easily, inability to concentrate, loss of interest in everything, loss of sleep, but not feeling suicidal. Her doctor prepared a mental health care plan, and referred her to a psychologist.
The parents separated late in 2015, with X living with her Mother. It is quite likely that they continued to see each other, and probably continued their relationship in some form, for a period after the date of separation.
The Mother’s accommodation with X changed in the months after separation. It seems that the arrangements for X to spend time with her father were somewhat ad hoc, but it seems likely that by January 2016, X was spending time with her father, including overnight time, and perhaps as frequently as each alternate weekend. X’s time with her father was initially supervised by the Mother, but rapidly became unsupervised.
By about March 2016, any ambivalence in the relationship between the parents ended, as the Mother commenced a relationship with the man who was to be her partner until late 2019 – Mr D. Problems emerged in relation to X’s contact with her father.
Between May 2016 and at least January 2019, there were a number of reports to the then Department of Family and Community Services, in relation to the welfare of X. These reports were in evidence. The Mother was cross-examined about them. The Father was extensively cross-examined about them. The Court finds that in respect of the vast majority of these reports, it was the Father who made them, and there was little or no objective basis for them. For example, he often expressed as current concerns, matters in respect of which he had no personal knowledge, but based on his experiences before separation.
The Department at no stage intervened as a result of these reports, or otherwise. The cross-examination of the Father about these reports lead the Court to conclude that his motives in making them were questionable, as there was no objective basis for making the reports at the time he did. It is hard to escape the conclusion that the reports were tactical, and in pursuance of the Father’s stated goal of having X live with him. Little else will need to be said in these Reasons for Judgment about the reports made to the Department.
The commencement of the Mother’s relationship with Mr D seems to have precipitated a deterioration in the Mother’s relationship with the Father. Their communication, which was always problematic in the post-separation period, became worse. Their trust for each other, always problematically low, diminished. The Father increasingly raised concerns about the Mother’s care of X.
There was an unfortunate incident at changeover on 3 August 2016, involving the Father, Mother, Mr D, and X. The Father was returning X to the Mother after a contact visit. The parents have very different versions about what took place. The Father did not return X. Two days later, however, on 5 August 2016, the Local Court at Town P made a recovery order so that X returned to her mother’s care. The proceedings were transferred to the Federal Circuit Court in Wollongong.
In 2016 and 2017 it must have become increasingly apparent to the parents that X was a child with special needs. The diagnosis probably came later. What is clear now, from a number of sources, including documents produced by the Benevolent Society, Dr E's Single Joint Expert Report, and the documents with which he was briefed, is that X suffers from autism spectrum disorder (level three), moderate developmental delay, and sensory processing disorder.
The documents tendered from the Benevolent Society indicate that for X these conditions are lifelong and are characterised by impairments in play and learning, social skills, personal care skills and communication. As a child, X is totally dependent on her carers for all of her activities of daily living including meal times, dressing, bathing, personal care and communication. She has very limited awareness of danger when in her home environment and when accessing the community. Thus, she requires ongoing supervision and support at all times to maintain her safety. X’s ability to adapt to different situations is very challenging for her, as she has difficulty transitioning from one environment to another.
The Court notes, therefore, that X is a vulnerable child. What X needed was parents who could communicate effectively with each other, especially about X’s special needs, and the interventions required in consequence of the same. X needed her parents to have a modicum of respect and trust for each other. Regrettably for X, the history of this case demonstrates that her parents have struggled with all of these things.
The matter first came before the Court on 14 December 2016, when orders were made for X to spend time with her father, initially on Mondays between 8:00am and 12:00pm, but progressing to Mondays, 8:00am to 4:00pm. On 30 May 2017, the Father’s time was ordered to be Tuesdays, 9:00am to 5:00pm. On 2 February 2018, X’s time was to be Tuesdays, Thursdays and Sundays, 9:00am to 5:00pm, and then after 1 July 2018, Tuesdays and Thursdays, 9:00am to 5:00pm, and 9:00am Sunday to 9:00am Monday. The final interim orders were made on 26 September 2019, and these provided that as from 8 November 2019, X would spend time with her father for the first three out of every 4 weeks from 3:00pm Friday to 9:00am Monday, and then have no time with her Father on the fourth week. It will thus be seen that X’s time with her Father has increased progressively since December 2016.
The Father seeks a final order for X to live with him. Indeed, when he first filed a response in April 2017, that was the order that he sought. He represented himself at the Final Hearing, but was legally represented at various different stages of the case. It is clear that his consistent belief was that X was better off living with him because he could provide a more stable, consistent, available and risk-free environment. In representing himself, the Father presented as an intelligent and articulate man who was disadvantaged by the fact that he did not have the level of objectivity that often is associated with legal representation.
Throughout the course of the proceedings, there have been issues about the drug and alcohol abuse of both parents. The Father lost his license as a result of drink driving in July 2017. The Father’s drug tests have, nonetheless, been negative. The Mother had tested positive to cannabis in 2017. The Father’s evidence about drugs and alcohol has been consistent, and reassures the Court that neither issue presents a risk of serious harm to X whilst in his care. In relation to the Mother, the issue is somewhat more complex and uncertain, and will need to be discussed in more detail below.
In 2019, the Mother gave birth to her daughter to Mr D, Y. Y has been diagnosed with spina-bifida. The precise nature and extent of her disability is not clear and, with hindsight, the Court would have been assisted by more evidence in this regard. Parenting Y would inevitably be challenging, particularly in circumstances where the Mother also has the care of X, with her special needs.
There was a period between July to September 2019, when X spent no time with her father. The Mother acted unilaterally in this regard. Both parents were cross-examined about this. Both parents could have done so much more to avoid and/or mitigate this period where X’s routine of regularly spending time with her father was disrupted. The chronic inability of these parents to communicate with each other, and to have even a modicum of trust in each other, primarily explains why the Mother ceased X’s time, and then why they could not do anything about it in a timely fashion. The Mother’s actions, however, coupled with her own evidence in cross-examination, does raise concerns in the mind of the Court about her willingness and ability to abide by orders of the Court.
The Mother struggled after the birth of Y. That is understandable. She also felt the pressure of the current proceedings. Her relationship with Mr D was deteriorating seriously and led to separation. There was a violent incident between Mr D and the Mother on 17 October 2019. This resulted in Mr D being charged with assault and offences relating to the destruction of property. The Mother says that in October 2019, she ended her relationship with Mr D. She was cross-examined about this. The impression formed from her evidence is that the relationship has in fact ended, but there is the possibility of reconciliation, subject to Mr D addressing what appeared to be clear anger management issues. The evidence suggested the Mother and Mr D still see each other, and he provides assistance in the care of Y, and probably X, several times each week.
The stress became too much for the Mother, and on 30 October 2019, she presented to the Accident and Emergency Department of Region B hospital. She was psychiatrically assessed. The records, tendered into evidence, indicated that she presented with hopelessness, thoughts of self-harm and a four month history of depressive symptoms. The records indicate that there were numerous stressors, including a custody battle for X, who has severe autism; domestic violence; conflict with current partner, a six month old child, Y with spina-bifida pending surgery; a background of post-traumatic stress disorder, anxiety, depression, childhood sexual abuse and history of previous self-harm. The Mother was referred to the acute care team on 1 November 2019.
The diagnosis was panic attacks and depression. When she presented to the team, her records suggest that she was too anxious to use cognitive behavioural therapy strategies at the time, that she had been depressed since the birth of Y, that she was depressed all the time, that she experienced bouts of severe anger, was unable to enjoy life, was happier when away from her children, that she experienced sleep interruption, nightmares, poor appetite, weight loss, poor concentration. She was not, however, suicidal or homicidal, and there were no psychotic symptoms.
The Mother was recorded as giving a past history of alcohol abuse, but now drinking 2-4 standard drinks per day. The Mother also gave a history of misuse of other recreational drugs. The clinical impression was of a mother of two disabled children, unable to care for the children without almost full-time assistance of her mother, who gave a history suggestive of chronic post-traumatic personality complex, currently overwhelmed by the demands of caring for two disabled children. Diagnosis of post-natal depression, symptoms of both significant depression and significant anxiety. The Mother also engaged with the Community Mental Health Team. She reported to them that she was a daily cannabis user in order to help her to sleep, but stopped two to three weeks ago. She spent an average of $50 per week on cannabis.
The Competing Proposals
The Father sought orders consistent with his response filed 12 April 2017 which provides for X to live with him, for there to be equal shared parental responsibility, and for X to spend time with her mother as agreed. In cross-examination he explained that he preferred X to spend time with her mother, amounting to substantial and significant time each fortnight, but in two blocks, not entirely consistent with the Independent Children’s Lawyer’s proposal, which will be discussed below.
The Mother’s proposal was initially as set out in her case outline document filed 21 November 2019. She proposed sole parental responsibility, and that X live with her. X would spend time with her father each alternate week from 9:00am on Saturday to 9:00am on Monday, together with special days. By the time of closing submissions, however, the Mother’s proposal seems to have moderated and was much more closely aligned to that of the Independent Children’s Lawyer, subject to a number of modifications that will be discussed, where appropriate, below.
The Independent Children’s Lawyer’s proposal is reproduced in the first schedule to these Reasons for Judgment. She proposed that X live with her mother who was to have sole parental responsibility, subject to a number of requirements about consultation. X would spend time with her father each alternate week such that in week 1 it would be from 3:00pm on Friday to 9:00am on Tuesday, and then in week 2 from 3:00pm on Monday to 9:00am on Tuesday. In other words, X would spend time with her father five nights each fortnight. However, commencing from 1 February 2021, X’s time with her Father would be each alternate week from Friday 3:00pm to 9:00am the following Wednesday, i.e., five nights, but in one block, each fortnight. The Independent Children’s Lawyer also made a proposal in relation to school holidays and special days.
The evidence before the Court
In the Mother’s case, she relied on the following documents:
a)Amended Initiating Application filed 19 November 2019;
b)Affidavit of Ms Daubney filed 19 November 2019; and
c)Notice of Risk filed 4 August 2016.
In the Father’s case, he relied on the following documents:
a)Response filed 12 April 2017; and
b)Affidavit of Mr Malyard filed 25 January 2018.
The Independent Children’s Lawyer relied on her case outline document which was filed 28 November 2019.
The following material was tendered as evidence during the course of the proceedings:
a)The Communication Books used by the Mother and Father;
b)Tender Bundle prepared by the Independent Children’s Lawyer;
c)Single-Joint Expert Report prepared by Dr E dated 4 December 2018;
d)Tender Bundle prepared by the Applicant Mother; and
e)Further Communication Books and Divitto Messages.
The Applicable Law
The applicable law is found in Part VII of the Family Law Act (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
Outline of Consideration of the Evidence
In considering the evidence about what orders are in the best interests of X, the Court will proceed in two stages. In the next section, stage 1, the Single Joint Expert Report of Dr E dated 4 December 2018 will be considered, but in the context of the oral evidence he gave at the Hearing, as well as the other evidence available to the Court by the conclusion of the Hearing. Dr E’s evidence is the only independent and expert evidence before the Court, and whilst that does not make it determinative, it is important. As will be seen, no party submitted to the Court that it should not place weight on Dr E’s report. Nonetheless, his evidence will be critically examined in the context of all the other evidence before the Court. In the second section, in considering what orders are in the best interests of X, the Court will have regard to the statutory matters referred to in Part VII of the Family Law Act
Dr E's Report, in the context of the other evidence before the Court
Dr E is a consultant psychiatrist, and child adolescent and family psychiatrist practising from Sydney. He interviewed the Mother, the Mother’s partner at the time, Mr D, the maternal grandmother, the Father and X on 27 August 2018 and then held further interviews with the parents on 29 November and 1 December 2018. He spoke by telephone to the director of X’s preschool. In addition, he was briefed with all of the relevant documents before the Court as at the time of his letter of instruction dated 2 August 2018. Dr E’s report is extensive, and the Court will only focus on those part relevant to the issues before the Court.
Focusing firstly on X’s special needs, the telephone conversation with the director of X’s preschool referred to a number of specific issues for X at the time. These are reported at paragraphs 96 and 97 of the report:
96. The hardest aspect of the child’s autism to deal with at preschool has been the child’s limited communication skills. The staff have been talking with the speech therapist, and introducing visual prompts, to assist the child and staff to communicate.
97. A second challenge has been the child’s “head banging”. When something distresses the child, she will bang her head. The staff have found that they can comfort the child or divert her attention, in order to deal with the head banging.
Both the issue of communicating with X, and her head banging, are found reflected in communications between the parents found in the various communication books that were tendered into evidence. For example, the Father, and indeed the Mother also at times, would refer to bruises on X’s head. The most likely hypothesis is that the bruises were referable to the practice of head banging which was, in itself, associated with X being upset about something. The Mother would describe this in terms of X’s tantrums. Doing the best the Court can to discern the tone of the Father’s communication about this issue, it was accusatory. This reflects a sub-theme evident from the Father’s cross-examination: and that is of a failure to fully understand the nature and daily impacts of X’s autism spectrum disorder.
At paragraphs 100-104 Dr E reports as follows:
100. Ms H and her staff have not developed concerns for the welfare of the child, specifically for the welfare of the child in maternal care.
101. The child consistently presents clean, and healthy, and with an awesome lunch.
102. I asked whether staff had developed any concerns about skin sores, infections, rashes, bites or scratches. No, that had not been an issue.
103. I asked whether staff had observed any bruising on the child’s body, which had caused them concern. No, staff had not developed such concerns. I clarified that the child is still in nappies, and the staff are regularly changing nappies.
104. Ms H commented that she and her staff are familiar with their responsibilities as mandatory reports to Community Services (CS), and had not been triggered to make any such reports regarding the child.
This is significant because the Father’s evidence, but specifically his communication in the communication books, raised concerns about these issues, always in the context of casting doubts on the Mother’s ability to adequately care for X. The Court concludes that, whatever the problems observed by the Father, they certainly were not of an extent that they were noticed by the staff of X’s preschool who were mandatory reporters.
Dr E was specifically asked to consider whether or not X had any developmental or health issues that need to be addressed. He deals with this comprehensively at paragraphs 108-138. Whilst this section is very long, one of the key issues in this case raised by the Father was whether the Mother had the capacity to meet X’s special needs. One of the key issues raised by the Mother in her case, is the Father’s understanding, acceptance of, and ability to deal with X’s special needs:
108. I have reviewed the detailed Region B Diagnostic and Assessment Service Clinic Report, dated 30th April 2018, which is contained within the subpoenaed notes from Dr F.
109. I note that Dr F, developmental paediatrician, had referred to the Region B Diagnostic, seeking a diagnostic assessment. In Dr F’s referral, dated 4th April 2017, Dr F identified that the child then aged 1 year and 9 months, had “limited speech”, and delays in social and emotional capacities.
110. The “Findings” of this report, are that the child has the DSM 5 [Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association, Fifth Edition] diagnoses of:
110.1 an Autism Spectrum Disorder (ASD), Level 3 [the most severe of three levels, described as “requiring very substantial support”, whereas Level 2 is “requiring substantial support” and Level 1 is “requiring support”] for both of the two defined autism domains of social communication and restricted interests and repetitive behaviours.
110.2 Significant Global Developmental Delay
111. My impression, based upon information from all sources including my own observations of the child with each parent is that these diagnoses are accurate.
112. I observed that the child presented similarly in the care of each parent, and that the narrative provided by each parent of their actual current and past lived experience of the child were similar, and consistent with the above diagnoses. Differences were in each parent’s emphasis [the mother upon concern about disability, the father upon hopefulness based upon noticing ability], and their causal attributions [the mother neurobiological, the father environmental].
113. The differential between the mother’s more diagnosis-and-treatment-of-disability focus, and the father’s more normalising/ looking-for-abilities focus is common even when parents have not separated, and in our culture is commonly split along the gender lines that are seen in this family.
114. If the father was in absolute denial, for example even refusing to acknowledge deficits in the child or refusing treatment, then this would be of concern. But, this is not the case.
115. It is important to note that whilst an ASD diagnosis is expected to be lifelong, the severity level in the long term cannot be divined with certainty during the preschool years, and this severity is plastic, over time. Importantly, with good quality parenting and with parental active involvement in appropriate developmental interventions, the child may well reduce in severity level.
116. Similarly, the DSM 5 label “Global Developmental Delay” is specifically designed “for individuals under the age of 5 years when the clinical severity level cannot be reliably assessed during early childhood”, and “requires reassessment after a period of time”. This label thus assumes uncertainty about outcomes, and incorporates the plasticity that makes good quality parenting and active parental involvement in appropriate developmental interventions very important, over the next few years.
117. The mother put to me at interview an acceptance of these diagnoses, and commitment to addressing them through appropriate parenting and professional interventions.
118. The father put to me at interview that he could see that the child “definitely has a developmental delay”, but questioned the diagnosis of autism. When asked, he did express a commitment to involvement in any necessary parenting and professional interventions.
119. The father questioned the diagnosis on the basis that it had been made on the mother’s report, which he put to me was exaggerated and unreliable. The father put to me that the mother had been deliberately exaggerating the child’s disability as a strategy to minimise the father’s time with the child, and to obtain more financial benefits.
120. The father put forth a view that the developmental delay that is present had arisen from maternal neglect of the child’s needs, rather than from intrinsic neurodevelopmental difficulty in the child.
121. The father said to me, “Ms Daubney’s been pushing for that for more than twelve months… her whole court case [is based on] ‘there’s something wrong with X’… even the Judge is starting to realise”.
122. The father said, “the genetics team… they said, it’s not as bad as the original diagnosis”, and “everyone else, whose experienced in working with people with autism… or child care… none of them have agreed with the original diagnosis… the diagnosis of ‘[Autism] Spectrum [Level] three’”.
123. When I asked for the specifics of the “everyone” to whom the father referred, the father said, “her swimming instructor used to run a child care, and one of the ladies at the ladies at [one of the play groups]… we got into a conversation… they don’t necessarily agree… and I’ve got a mate with a son the same age as X… he works with people with disabilities, and a lot of them have autism”.
124. When I sought the father’s comments about the specifics of the Region B Diagnostic report, for example regarding the clinical observations made, and the observations upon which the Griffiths Scale was scored, it became clear quickly that the father was not familiar with this report. He said [with awkward and defensive tone], “which [report]?... I probably don’t know about that one”.
125. My impression is that the Region B Diagnostic assessment is sound, and that the above diagnoses were appropriately made at the time of assessment, and continue to be appropriate.
126. The Region B Diagnostic assessment was carried out by a developmental paediatrician (Dr J), clinical psychologist (Ms K), and Paediatric Registrar (Dr L). This is the Area specialist diagnostic centre, referred to as the local experts by an experienced and skilled local paediatrician, Dr F.
127. These clinicians used a range of information sources, in coming to these diagnoses. The mother was one information source. But, even if one was to accept the paternal stance that the information provided by the mother is not reliable [which is not my view], there is sufficient information to allow these diagnoses to be made contained within the “Clinical observations” at pages 4/5 of the report, the Griffiths Scales [which are primarily based upon observation of the child’s responses to standardised tests carried out in the clinic, rather than upon parental report] at pages 5/6, and the speech therapy assessment of November 2017 and occupational therapy assessment of June 2017 reviewed at page 2.
128. The speech therapy assessment and occupational therapy assessment reports referred to in the Region B Diagnostic assessments are contained within the notes subpoenaed from the Region B Local Health District (Region B Local Health District). Like the Region B Diagnostic assessment, they rely in part upon maternal report, but also rely upon clinician observation, including observation using standardised instruments.
129. My own observations of the child with the mother and with the father were consistent with the above diagnoses.
130. I observe that the mother has given a consistent narrative regarding the child’s behaviour and development to Dr F, to the Region B Diagnostic clinicians, and to others such as the Occupational Therapist, Speech Therapist and the feeding clinic, and to me at interview.
131. My observations of the child and my reading of others’ observations of the child are consistent overall with the mother’s narrative.
132. I cannot discount the possibility that the mother has amplified the child’s disability for strategic purposes, but I think this unlikely. In her narrative to the professionals above, and to me, the mother has spoken of strengths and new developments in the child, as well as weaknesses. Examples in the Region B Diagnostic report are the mother’s reports that the child had made a full recovery from her early problems with abdominal distension, was sleeping well, had met her motor milestones, was showing affection in recent times, and that the child’s tantrums can be settled by removing the child from the environment and holding the child. My impression of the mother’s narrative about the child is that the mother has sought to be earnestly and diligently accurate in her reports, and is expressing genuine concern about aspects of the child’s presentation, rather than being amplifying of the negative.
133. Ironically, the substance of the father’s narrative about the child’s behaviours and capacities at interview was very similar to that of the mother. The main difference was of attribution and of willingness to own incapacity or failure. In keeping with his overall self-elevating, mother-reducing narrative, the father attributed any delay or deficit in the child to the mother’s parenting environment, and any gains made by the child to his own efforts. Concerningly in terms of the possible future effectiveness of parenting interventions, my impression of the father was that he needed to present a narrative of himself as capable and of his own parenting as adequate and effective.
134. Each parent has expressed concern about possible or likely neglect or abuse of the child in the care of the other.
135. I have not seen clear evidence of abuse or neglect of the child in the child in the care of either parent, in particular evidence of severe or persistent abuse or neglect, but do not discount the possibility that the same has occurred.
136. If in fact it has been the case that the child has experienced neglect or abuse in the care of either parent or both parents, then this likely will have contributed to the child’s developmental delay. An ASD-like picture and global developmental delay are both syndromes that can occur in infants and pre-school aged children as a result of significant neglect and/or abuse [for example, see Perry B. (2008) Child maltreatment: A Neurodevelopmental Perspective on the Role of Trauma and Neglect in Psychopathology in Beauchaine T & Hinshaw S ()Eds) Child and Adolescent Psychopathology pp 93-128].
137. That said, my clinical impression is that the child’s developmental difficulties have a significant congenital contribution, and that parental neglect or abuse do not explain the phenomenology and extent of the child’s developmental delay.
138. In terms of congenital contribution, the mother reports not abusing alcohol and not using cannabis during the pregnancy. I do not see evidence in the child of the facial features typically suggestive of Foetal Alcohol Syndrome.
The Court makes a number of observations about these paragraphs. It is interesting to note, for example, that in the communication books, particularly the early ones, the Mother actually provides to the Father documents provided to her by those treating X so there cannot be any doubt about the Father firstly knowing about the various assessments made of X, and in particular knowing who and where to contact to find out more.
There can be no question about the accuracy of the diagnosis given. X suffers from the most severe of the three levels of autism spectrum disorder, and requires very substantial support. The Father was cross-examined about his belief and acceptance of the diagnosis. At one level he seemed to accept the diagnosis. At another level, however, he seemed to question its causation. For example, he explained that sometimes, but not always, he believed that X’s condition was attributable to the Mother’s neglect of her care. Whilst the Father accepted that Dr E’s view was that X’s condition was not referable to the Mother’s neglect, he maintained that, in effect, Dr E did not have the full picture.
This is reflected at paragraphs 117-123. Indeed, in the communication books there is reference to the Father questioning the diagnosis, on the basis of what quasi-strangers had said to him, no doubt based on his report to them of X’s condition. It was almost as if the Father was willing to accept any information that was consistent with his preordained view, without any discernment. The clearest example of this is at paragraph 123 of Dr E’s report.
Paragraph 124 is instructive. Even if the Court were to accept that the Father was not aware of the Region B Diagnostic report dated 30 April 2018, the overall impression created from his evidence, the Mother’s evidence, and the communication books, is that he was in a position to make himself aware of the details of X’s assessment, but for some reason chose not to do so. Additional evidence of this is found in a document dated 21 June 2019 from The Benevolent Society, tendered as part of the Independent Children’s Lawyer’s tender bundle. In this letter the author, Ms M, a speech pathologist who is part of the Disability Services Team for The Benevolent Society, emphasises the importance of intervention strategies being implemented across all of X’s learning environments in order to optimise her outcomes. She states: –
“Therapy has been implemented at her Mother’s home, and at preschool. An appointment was made to offer similar support at X's Father’s home, however no one was there at the scheduled appointment time. A phone call was made to follow up, with an invitation to call at a convenient time to reschedule. No further contact with the service was initiated by X's Father to reschedule the missed appointment.”
This was a missed opportunity for the Father. It does reflect, unfortunately, certainly a detachment from, but possibly even a disinterest in, the details of X’s assessment and the practical strategies that could be implemented to respond to it. It is interesting that he would miss this opportunity a mere matter of months before the Final Hearing.
At paragraph 132 Dr E raises the possibility of the Mother having amplified X’s disability for strategic purposes. He thought this unlikely. The Court finds this has not taken place. It was not even put to her in cross-examination. There is nothing that she has said or done, even by reference to volumes of communication books, which would suggest that she has acted otherwise in good faith.
Dr E was asked to consider issues of parental capacity, including X’s relationship with each of her parents. He found that X’s relationship with her mother was positive, was an attachment relationship, and that X relied on her mother to meet her needs, and to protect her from danger. He found it to be a mostly secure attachment relationship, in that the child experiences the Mother as mostly able to meet her needs, as protective, and as non-dangerous:
139. My impression is that the child has a positive relationship with the mother. This is an attachment relationship, in that the child relies upon the mother to meet her needs, and to protect her from danger. It is a mostly secure attachment relationship, in that the child experiences the mother as mostly able to meet her needs, as protective, and as non-dangerous.
In the next paragraph Dr E noted the challenges associated with developing a secure – enough attachment relationship with a child with developmental delays:
140. I note that developing a secure-enough attachment relationship with a child with developmental delays is difficult, because the child’s needs are greater and more difficult to divine than in a neurotypical child, the child’s challenging behaviours will try the persistence and patience of the parent, and because the child is more sensitive to and reactive to any vulnerability in parental attitude and behaviour.
Dr E, of course, observed the Mother’s interaction with X and seemed impressed about her very respectful stance in raising her:
147. I observe that the above is typical of the mother’s very respectful stance in raising the child… even with the child at this young age, the mother is reflecting upon and seeking to gauge the child’s wishes and preferences. The mother had taken this similar respectful stance when she was asked about parenting matters. Asked whether there is some value to the child in child/father time, the mother said, “I can’t really say… I don’t know what X’s view is… for a long time she did not want to go”.
He seemed impressed with the Mother’s ability to give detailed, considered replies about aspects of X’s development, including changes over time:
148. Overall, when I asked the mother about aspects of the child’s development, the mother gave detailed, considered replies, that identified change over time. My impression was that the mother has been engaged with the child over time, mindful of the child over time, and observant of the child.
At paragraph 150-151 he records:
150. I asked the mother whether the child ever invites her in to play.
151. The mother’s reply demonstrated robust understanding of the child’s developmental deficits and associated needs, and the importance of play as a substrate for learning interpersonal skills. The mother’s reply demonstrated a capacity for the mother to learn from developmental therapy, and to put that learning into practice. These are important capacities for the parent of a child with developmental problems.
He observed the Mother to be attentive to X, and responsive to her needs. His positive impression of the Mother is reflected in the following paragraphs:
166. After dinner, the child has a shower, and goes to bed at 730pm. The mother said, “I turn off all the lights in the house [at that time]… [smile] she helps”.
167. This latter small detail of the mother involving the child in a rhythm/ routine of turning out the lights in preparation for bed is an example of the thoughtful, reflective and creative parenting skills that the mother demonstrated on the day of interviews.
168. A theme of the mother’s comments at interview was the importance of “routine” for the child, and that the child likes her “routines”, is happier and settles better when “in routine”, and can be unsettled by a shift in “routine”. My impression is that the daily routines and familiar patterns of care provided by the mother do benefit the child, in particular because of the child’s ASD. My impression is also that these routines provide the mother with confidence and security, and assist the mother to manage her own mental state and behaviour, as she cares for the child.
169. The mother felt that she had developed some specific capacity to understand and assist the child. The mother told me that one of the things that made her feel cautious about leaving the child with the father was that “a lot of the time, when X has a big meltdown, I’m the only one who can really snap her out of it”.
170. The mother presented as accepting of the child’s developmental difficulties, and the impact of the same upon herself as parent. She said, “her disability… it’s hard… when you’re pregnant, you envision this life… when I realised that something was different, I had to grieve that life that I’d envisioned”.
171. The mother described experiencing some periods where she was “a bit down with everything… I just wanted to lock myself in my room… with X… I just wanted to live in bed with her and watch movies”. I asked whether the mother still experiences these periods. The mother said, “rarely now… [smile]… now, I’ll have a fleeting moment, then Mr D kicks me in the butt”.
172. The above comments about a desire to “retreat” [my word] into bed and movies when “a bit down”, along with a knowledge that the mother was using cannabis at least each evening until mid-2017 and the mother’s statement to me that until recently the child would “just sit” [para 143, above], does suggest to me a risk that the positive mother/child daily routine outlined at paras 165/166 above might have shifted to a circumstance of relative neglect of the child’s needs, during periods when the mother was struggling with negative mood states.
173. A strength of the mother’s is that she is willing and able to make use of the support of others. Asked who supports her in her parenting role, the mother identified her partner, the maternal grandmother, and a friend “Ms Q”.
X was also observed with the Mother’s partner, Mr D, and the maternal grandmother.
In relation to the Father, it is clear from his Report that he was aware of the details of the Father’s expressed concerns about X in the Mother’s care, particularly expressed through the various reports to the Department of Family and Community Services. At paragraph 210-212 Dr E notes:
210. The above paternal expressed concerns are consistent with the father’s globally self-elevating, mother-lowering mindset and narrative, as discussed elsewhere in this report. The father’s pattern of interpreting almost any observation of the child in terms of maternal deficiency extends to many areas where in my view that interpretation lacks substance.
211. An example from the father’s narrative to me was that he interpreted any tiredness or negative emotional state in the child during time with him as arising from adversity in maternal care, and any child joy at seeing him or unsettledness or distress at departure from him in the same light. These described negative behavioural or emotional states in the child in my view were within the range that would be expected in the ebb and flow of ordinary life and of care transitions in a child of the child’s age and developmental stage.
212. Examples from the father’s CS notifications were that he attributed common childhood illnesses to the mother allowing the child to crawl on a cold floor or more broadly to maternal neglect, attributed a child in early toddlerhood preferring crawling over walking to the mother confining the child in a small house, and concluded from the child reacting to being laid on her back that the child had been dropped.
An important sub-theme of Dr E’s evidence was his description of “the Father’s globally self-elevating, Mother-lowering mindset and narrative.” The Father rejected this in cross-examination, unsurprisingly. The Father’s denial, however, is inconsistent with the other evidence. The communication books, for example, which Dr E did not have available to him, are replete with examples of precisely what Dr E described. The Father’s quasi-arrogance in making some of the notifications to the Department were revealed in cross-examination. He was cross-examined, for example, about a notification on 13 July 2016 where he refers to the Mother drinking vodka and moscato, the clear inference being that she had consumed the bottles in question. When pressed in cross-examination all he could say was that he saw the Mother drinking some alcohol, but did not see her consume all of it. There is a fine line between fabricating evidence, and exaggerating evidence, and the Father certainly walked a fine line in terms of the reports in question. All of this, moreover, is completely consistent with the Father having a globally self-elevating, Mother-lowering mindset and narrative.
Dr E goes on to reject the concerns that the Father raised about child welfare issues in the Mother’s home, and for the reasons stated earlier the Court does the same.
Dr E concluded in relation to the Mother at paragraphs 241-244:
241. In my view, the mother when in a good enough context such that she is calm, supported, sober and clean from drug use has the capacity to adequately meet the child’s basic needs for food, shelter and protection from harm. She also has the capacity to adequately and probably quite strongly meet the child’s more complex emotional, behavioural, relational and developmental needs, including the child’s special needs associated with her diagnoses of ASD and global developmental delay.
242. I think it likely that even when the maternal context has more precarious, the mother’s capacity has been adequate, but I am less certain in making that judgement.
243. The mother’s new pregnancy in some ways is a positive for her capacity to provide for the subject child, as the pregnancy will form part of a positive shared focus with her partner on the wellbeing and health and day to day life of their household, including the subject child. In the short term and over the years, engagement with a new sibling will be a useful developmental challenge for the subject child, if it is managed carefully by the mother and her partner, which I expect them to do.
244. In other ways, the mother’s pregnancy challenges the mother’s capacity to meet the subject child’s needs, because of the extra demands and complexities of this new baby’s needs. The mother will benefit from professional, community and family support during this period, and will be assisted by orders that provide her with security in role, and also the regular break afforded by the child spending time with the father, if the same can occur in a safe and predictable way.
As will be seen below, the Mother experienced some quite challenging issues about her mental health, experiencing family violence, the end of her relationship with Mr D, and the challenges associated with Y’s birth, well after Dr E’s report. This will be discussed shortly.
In relation to the Father Dr E noted at paragraphs 245-246 as follows:
245. My impression is that the child has a positive relationship with the father. This is an attachment relationship, in that the child relies upon the father to meet her needs, and to protect her from danger. It is a mostly secure attachment relationship, in that the child experiences the father as mostly able to meet her needs, as protective, and as non-dangerous.
246. I comment as I did above with regard to the child-mother relationship that developing a secure-enough attachment relationship with a child with developmental delays is difficult, because the child’s needs are greater and more difficult to divine than in a neurotypical child, the child’s challenging behaviours try the persistence and patience of the parent, and because the child is more sensitive to and reactive to parental attitude and behaviour.
There is a clear sense in which Dr E was impressed about the Father’s relationship with X, and his attitude towards her.
Dr E, at paragraph 251, makes the important observation that both parents were similar in their sensitivity to X’s vulnerabilities and showed careful, child-focused thinking about how best to assist X with the same.
His observations of the Father and X bear reproduction, even though this extract is lengthy. The relevant paragraphs are 252-279:
252. The mother brought the child into the waiting room, and the child transferred without distress or struggle into the father’s care, and the father was able to bring her into my office without overt distress or resistance from the child.
253. The child was making the continuous “drone” of a single note. I asked the father what this was about. As had the mother, the father identified that this was “not good… she’s upset or stressed”. The father appeared sensitive to this distress in the child. The father gave the child space to stay close to him, and to settle into the room. With supportive parental presence, the child’s “drone” ceased, and she appeared to settle.
254. The father chatted with me, as he also appeared to stay mindful of the child, and responsive to her. The father put forth a narrative that the child “gets cranky when she misses out on time with me”. Whilst the child is “mostly happy to see [the mother]”, the child will be very excited to see the father.
255. The father felt that the child can tolerate the goodbyes better on Tuesday afternoons and Monday mornings, because it won’t be long until she sees Dad, but she gets distressed at the Thursday afternoon goodbyes, because it will be such a long stretch until she sees Dad. The father put this same thesis to me at telephone interview on 1st December 2018.
256. I do not dispute a paternal observation that the child may be showing more distress at separation on the Thursdays, but I expect that at the child’s developmental stage, the child is not differentiating between three time intervals each of which is longer than 24 hours. I observe that the father’s thesis is consistent with his overall self-referential and self-elevating, mother-lowering narrative.
257. The father spoke to me of the various toys and books that he had brought in his bag, each of which has become part of his relationship with the child. This included some books. The father said, “we do lots of reading”.
258. The child after a time took the initiative to approach the father and seek to climb up onto his lap. He assisted her with the same. As I had observed with the mother, the father had given the child space but remained present for the child, then was responsive to the child’s approach to him.
259. The child then got down from the father’s lap to explore the room further, then a little while later, returned to the father’s lap.
260. The father attempted at this time, then subsequently on four further occasions during the interview, to remove the child’s dummy. On each occasion, the child was assertive in seeking it back, and the father returned it. On the second occasion, the father persisted in withholding the dummy for a moment, and the child escalated into a loud yell of protest. The father returned the dummy, and the child quickly settled.
261. The father said of the dummy, “it’s a comfort thing… she’s OK without it when she’s happy… she’ll go looking for it when she’s bored… sometimes she has two, and she swaps and plays with them… she goes to bed with it… it’s OK that she has it when she’s upset, but I want to get rid of it”. The father elaborated, saying “we’re trying to help her with communication… she can’t speak properly [with the dummy in]”.
262. I felt that this paternal motivation to “get rid of” the dummy was child-focussed and developmentally focussed, and I observed that it was tempered with realism and kindness, in terms of an understanding that the dummy currently plays a role for the child. I noted the inference regarding “boredom” in maternal care.
263. The father then commenced a conversation with myself about the child’s diagnosis and various aspects of the child’s development and care. As we engaged in this conversation, I observed that the father gave the child space to explore and play, but also kept an eye on her, assisted her or maintained safety as necessary, and was responsive to her when she came to him a need.
264. The father commenced a narrative [which has been described above] that questioned the child’s autism diagnosis, but acknowledged the child’s developmental delay, in particular speech delay.
265. The father attributed aspects of the child’s observed delayed or problem behaviours to maternal failings, and described how he manages the same in a superior way. An example was that he attributed the child’s “meltdowns” and head banging to “lack of sleep… or lack of interaction… her mother won’t let her sleep”. He said, “you can tell when she’s going to do it… she’s sounding not right… she’s tired… or wants to go somewhere… she can get her shoes on, and go out… that distracts her”.
266. The father repeated this same differential to me at telephone interview in December 2018, stating that “she doesn’t do head banging with me… because we go out and do things… she’ll do it, but only if we’re not doing anything”.
267. I comment that the general practice notes [and the letter from the genetics clinic] include examples of times when the child showed distress and behavioural disturbance in paternal care which could be described as “meltdowns”, these being occasions when life’s obligations placed some constraints upon the child and father.
268. Ironically, I note that the mother described exactly the same strategy for managing the child’s melt-downs and tantrums as did the father: distraction, and taking the child away and getting on with something new.
269. I observed a clear difference in the narratives of the mother about and whilst with the child, and the father about and whilst with the child.
270. I observed that the mother was more able to pause, reflect, and to see the child as her own separate little human being. When asked, the mother had various concerns about paternal care of the child and did consider herself more capable than him in various areas, but this was not her predominant narrative, and she did not see the child through this lens.
271. The father on the other hand had a prominent self-elevating, mother-lowering narrative, which was pervasive and persistent. I observed that the father was seeing the child and the child’s behaviours through the lens of this narrative, and that this viewpoint often disrupted paternal judgement about the experience of the child and the care of the child.
272. Mostly, this was “harmless” in the day to day, as the father was still responding sensitively and appropriately to the child, for example with regard to the father’s strategy (shared with the mother) of observing that the child might be building up to a meltdown, and dealing with his through distraction and activity.
273. But, I am concerned that at times this paternal viewpoint has not been harmless, for example when the father [in my view] put the child through the unnecessary stress of repeated visits to the doctor on the assumption of neglect-related child illness, over the past two years, and when the father drove away with the child on 3rd August 2016, in part on the basis of false assumptions related to this viewpoint.
274. In addition, as the child becomes older and more aware of and impacted by parental attitudes, this pervasive paternal self-elevating, mother-diminishing viewpoint and narrative will place partisan pressures upon the child.
275. I do not feel that this paternal narrative will be an absolute block to the father benefitting from involvement in developmental therapies for the child, but my clinical experience suggests to me that it will create some inefficiency in the process, and that the therapist will need to be assertive and mindful in repeatedly bringing the father back off this narrative onto the skill-development task at hand.
276. As I spoke with the father about his questioning of the diagnosis of Autism, the child was holding up her hand in front of her gaze, moving her fingers and watching the fingers move. This is a common visual sensory-seeking behaviour in autism. I pointed this behaviour out to the father. He acknowledged this behaviour, but said, “she only does it when she’s tired”.
277. The father continued his self-elevating, mother diminishing narrative. I asked questions about a range of matters related to the father and to the child, but on each occasion, the father’s reply returned to that narrative. The father spoke calmly and without aggression, and said, “I don’t wanna say that I think I’m better than her”, and “I don’t want to cut her out of [the child]’s life, like she did to me for five months”, but at the same time was globally denigrating of the mother.
278. The father’s diminishing of the mother extended to references to her poor social class, and to her upbringing that was “not necessarily the best”, and to her past history of sexual assault. I observed that the father was globally and pleasantly extremely denigrating and diminishing of the mother.
279. The father continued to be mindful of and responsive to the child as we spoke. He showed a fond disposition towards the child. He told me “I go to [a play group] with her on Tuesdays… she doesn’t communicate or play a lot with the other kids… we generally only go for one and a half hours, or an hour”.
The Father’s allegations of the Mother’s abuse of the child, both physical and verbal, are unsubstantiated by the evidence. There are many benign explanations for any bruising that X manifested, particularly around the head. It is quite likely that head butting was part of her normal pattern of responding to challenging experiences, as a result of her Autism Spectrum Disorder.
Probably the greatest risk that X will be exposed to from her parents arises out of their chronic inability to communicate, and their potent distrust of each other. Nowhere is this more evidenced than in the communication books. What the communication books manifest is inadequate, sub-optimal communication. Even the use of an online app, supposedly to facilitate better communication between parents, and make them more accountable for poor communication, has not had a beneficial effect on these parents. The parents seem incapable of communicating about anything, let alone something as significant as, for example, blood tests to detect iron levels for X. The Court wishes to make it very clear – after studying the communication books, it concludes that both parents are to blame for their communication problems. These parents even argued about what sort of communication book to use. X expects more of her mother and father. Their toxic relationship, chronic mistrust, and incapacity to communicate effectively about X, means that she is at risk of emotional harm, particularly given the vulnerability she experiences because of the conditions she suffers. One can only hope that the conclusion of these proceedings might take some pressure off them in this regard. The problems referred to above, however, should amply demonstrate why the Court can not possibly order equal shared parental responsibility, in this case. The Court accepts that there is a risk of harm to X if her mother relapses into abusive drugs and alcohol. One way to monitor this risk, and to in effect, compel the Mother to adequately manage the risk of relapse, would be to request the Legal Aid Commission of New South Wales to extend the appointment of the Independent Children’s Lawyer for a period of 12 months, and to empower the Independent Children’s Lawyer to make random requests for drug and alcohol testing of the Mother.
The Court does not accept that there is a risk of harm to X as a result of her father’s lack of understanding of the conditions she suffers, and the impact on this of her life. When the evidence is closely examined, the Father seems to handle the day-to-day consequences of X’s special needs quite well. His problem seems to be causation and a willingness to attribute X’s problems to the Mother’s neglect, which is not supported by the objective evidence.
There are no relevant views which need to be taken into account.
Whilst X has a very good relationship with her Father, the totality of the evidence suggests that her strongest relationship is with her Mother, with whom she has lived all of her life. It appears that X also has an important relationship with the maternal grandmother who now lives nearby, and who will probably continue to be an important support to the Mother in caring for X.
There can be no criticism about the extent of the Mother’s involvement in each and every aspect of X’s life. The same cannot be said of the Father, since separation. The criticism in this regard is the Father’s seeming ambivalence about involvement in X’s treatment. His explanations for the many missed opportunities were glib and unconvincing. Based on the totality of the evidence, including the communication books, it is clear that the Father knew far more about X’s treatment than he was prepared to let on, and he gave no plausible explanation for what seemed like his ambivalent, detached involvement in the same. He thus missed out in opportunities to participate in decision-making about these issues. Involvement in treatment such as occupational and speech therapy would have given him more opportunities to spend time with X.
Apart from a modest level of child support, the Mother appears to have provided for all of X’s financial needs. The Father’s evidence on this issue was less than flattering. He works as a self-employed tradesman, locally. His work is, apparently, flexible. When his finances were subjected to scrutiny in cross-examination, the Court was left with the profound impression that the Father had been far from diligent in disclosing to the Court what his actual income was. If his income was as he stated and as disclosed to the Australian Taxation Office and Child Support Agency, he could barely pay his own rental, let alone living expenses. There were many, many opportunities for the Father to provide financial assistance to X which he declined to do, hiding behind the cloak of Child Support Assessment which was, no doubt, calculated by reference to information he provided.
One of the most important considerations in this case is the likely effect of change in X’s circumstances and in particular, the potential impact on her of separation from her mother and probably to a lesser extent, her sister Y. Inherent in the Father’s proposal is a drastic change in X’s life, purportedly on the basis of a risk of harm in the Mother’s household, which the Court has found does not exist. The evidence indicates that X, because of her Autism Spectrum Disorder (Level Three) would experience such a change with great difficulty and probably trauma. Absent a need for this, why would the Court subject her to this? The Independent Children’s Lawyer’s proposal increases X’s time with her father, and towards the end of the case the Mother seemed accepting of this. It is change for her, but a change that she should still be able to manage. That is reflected in Dr E’s recommendations and opinion.
There are no issues of practical difficulty and expense in this case. Both parents live in the Region B.
The Court must consider issues of parental capacity to provide for X, as well as parental attitudes to the responsibilities of being a parent. In respect of both parents, issues abound in this regard. At times, in cross-examination, the Mother manifested what was an almost cavalier ambivalence about compliance with Court orders in relation to X spending time with her father. At one level this was surprising because in her current circumstances, provided X was safe in her father’s care (and the Court assesses this to be the case) X spending time with her father provides respite to the Mother, who must find it challenging to manage two special needs children. And yet, at another level, the Mother’s attitude is unsurprising, given her intense distrust of the Father, and inability to communicate with him. The Court accepts her evidence that she found him at times during the relationship and afterwards, overbearing and dominating. The Court accepts that her concerns about his ability to care for X were genuinely based. Indeed, but for Dr E’s observations and professional views, the Court may well share the Mother’s concerns. The Mother will need to understand that the Court will make orders that are enforceable as such. The Court’s impression of the Father is that he is one who will not hesitate to enforce these orders by contravention proceedings, if she does not strictly comply. The Court believes that provided the Father is able to demonstrate an adequate capacity to care for X whilst in his care, the Mother will come to appreciate those opportunities as times for her to focus on Y, as well as focus on herself.
As foreshadowed, the Court remains concerned about the risk of relapse for the Mother into drug and alcohol abuse. A similar risk exists in relation to her mental health. What mitigates this, however, is the fact of the conclusion of the proceedings and the fact that the Mother seems so well engaged in the services there to support her.
The Court has already mentioned issues about the parents’ trust and communication. In terms of capacity to meet X’s emotional needs, both parents have a lot of work to do.
The Father did manifest a problematic attitude to X, and to his responsibilities as a father, in terms of his view of the Mother. The concerns in this regard were adequately reported by Dr E at paragraphs 319 and 326-27 of the Report, and need no further reproduction. The Father’s willingness to fabricate and or exaggerate his notifications to the Department of Family and Community Services reflect very poorly on him, and his capacity to really focus on his daughter’s needs. His failure to adequately financially support X also reflects an attitudinal problem and to irresponsibility as a father. The Father in cross-examination often presented as having an unrealistic perspective of himself. For example, when given the opportunity to reflect on the opportunities he had to more involve himself in the process leading to X’s diagnosis and subsequent treatment, his attitude was that he had tried without success. He may well believe that, but that is not the reality reflected in the more objective evidence before the Court.
Despite these criticism of both parents, the fact is that X is very lucky to have them, despite the issues that her mother and father have between them. Dr E almost appeared surprised at times to note that both parents, with minor differences, seemed to manage X’s special needs in a consistent fashion. Imagine what it would be like for X if her parents could address the other issues identified in these Reasons for Judgment?
Whilst it would be preferable to make an order that is least likely to lead to the institution of further proceedings, that cannot be ruled out in this case, on any of the proposals before the Court. If the Father’s orders were made, the Court shares Dr E’s concerns that he would be less committed to supporting X’s relationship with her mother, than the Mother is of X’s relationship with her father. There would thus be a high risk of future litigation. Even on the Mother and Independent Children’s Lawyer proposal, there are still risks to X in the Mother’s care which might necessitate a future proceeding. The Mother could have another break down due to the inevitable challenges of parenting two special needs children. She could relinquish X into the Father’s care. The maternal grandmother might assume an increasingly greater role in X’s life. The Mother might relapse into drug and alcohol use. All of these are matters which would probably constitute substantial changes in X’s circumstances, and thus warrant a revisiting of the orders that are in her best interest.
Orders in the best interest of X
Having regard to all of the evidence, and the submissions made, the Court believes that the minute of order proposed by the Independent Children’s Lawyer is in the best interests of X. This means, for the reasons identified above, that the Mother would have sole parental responsibility, subject to the obligation to consult with the Father as specified in order 3 of the Independent Children’s Lawyers minute. The proposal for the Mother not to relocate except in the circumstances identified in order 4 is not only appropriate for X but is something which the Mother herself agreed was appropriate in cross-examination.
It is in X’s best interest that she live with her Mother. Given the discussion about risk issues above there is no basis for making enormous changes to X’s life by placing her in her father’s care. The Court is satisfied that the Mother can support the Father’s relationship with X more than the Father can do so in the reverse scenario. The Court accepts Dr E’s evidence in this regard. The orders for X to spend time with her Father, both during school terms and school holidays, are consistent with the evidence of Dr E, and otherwise in the best interests of X having regard to the evidence overall. The Mother did raise the issue of the October long weekend each year, which is, apparently, a special family weekend for her. She proposed that this weekend always be her time with X, and that the Father have make-up time on an alternative long weekend. If there was opposition to this proposal, it was not a strong one. Thus, orders 1 and 2 in the additional minute of order proposed by the Mother will be incorporated into the Independent Children’s Lawyer’s minute of order.
The orders for the reconfiguration of the Father’s block time in 2021, and for school holiday time, are consistent with Dr E’s evidence and did not seem inconsistent with the evidence of the parents themselves.
Most of the remaining orders are uncontentious. Order 8 about changeover reflects the current arrangement, and the requirement that Mr D not attend is appropriate. Order 9 about ensuring that X is enrolled and attend in preschool from 2020 is something that she also did not oppose.
The continued communication using the Divvito app is probably the best of the worst alternatives for the parents, until such time as they can fundamentally change how they relate to and communicate with each other.
The Court regards as critically important order 13 dealing with therapeutic supports, and order 18 and 19 about the Father’s involvement, and X’s continued involvement, in therapy.
The Court also regards as critically important order 24 dealing with the Mother engaging with experts to assist her with issues relating to family violence, alcohol and drug use.
The restraints contained that orders 25 to 30 inclusive are appropriate.
I certify that the preceding one hundred and twenty-seven (127) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 23 January 2020
Schedule One
Independent Children’s Lawyer’s proposed Minute of Order
THE COURT ORDERS THAT:
Parental Responsibility
All previous parenting orders be discharged.
The mother have sole parental responsibility for the child X born in 2015.
For the purpose of Order 2 and except in the event of an emergency, before making any major long term decisions in relation to the child, the mother will consult with the father as follows:
a)Advise the father in writing as soon as practicable but in any event not less than fourteen (14) days in advance of any decision on major long term issues proposed to be made by the mother;
b)Provide the father with relevant information relating to the decision;
c)Provide any necessary authorities to enable the father to obtain any additional information relevant to the long term issue;
d)Consider any response from the father before making a decision; and
e)Inform the father of any decision made no later than 48 hours after the making of the decision.
The mother not relocate the child’s residence to a location outside the Region B/Region C region with unless:
a) With the written agreement of both parents;
b) Otherwise Ordered by a Court; or
c) The father has relocated and the effect of the mother doing so does not make the Orders for the child to spend time with the father significantly more difficult to be complied with.
X’s time with her mother
The child live with the mother.
X’s time with her father
The child spend time with the father, unless otherwise agreed in writing between the parents, as follows:
a)Commencing the date of these Orders:-
i) On an alternate week arrangement,
In week 1 from 3.00pm on Friday to 9.00am on the following Tuesday,
In week 2 from 3.00pm on Monday to 9.00am on the following Tuesday; and
ii) During the weekend that comprises Fathers’ Day, from 3.00pm on Friday to 9.00am on the following Monday;
iii) From 5.00pm on 24 December to 9.00am on 26 December in 2019 and each alternate year thereafter;
iv) From 9.00am on 26 December to 5.00pm on 27 December in 2020 and each alternate year thereafter.
b)Commencing on 1 February 2021:
i) Order 6 a (i) be discharged;
ii) During NSW school terms in alternate weeks, commencing on the first Friday of each term, from 3.00pm on Friday to 9.00am on the following Wednesday;
iii) For a period of one week during NSW school holiday period at the end of terms 1, 2 and 3, from the conclusion of school on the last day of term to 3.00pm on the same day on the following week, or if that time would include the October long weekend after Term 3, from 5.00pm on the Monday of the long weekend until 3.00pm on the same day on the following week;
iv) During the NSW school holiday period at the end of term 4 in 2021, for two periods of one week with the first week to commence at 3.00pm on the first Friday in January, concluding at 3.00pm on the following Friday, and the second week to commence at 3.00pm on the third Friday in January, concluding at 3.00pm on the following Friday;
v) During the NSW school holiday period at the end of term 4 in 2022 and each year thereafter, for a period of two weeks commencing at 3.00pm on the first Friday in January and concluding at 3.00pm on Friday two weeks later; and
vi) During the NSW school holiday period at the end of term 4 in 2023 and each alternate year thereafter, for a period of three weeks commencing at 3.00pm on the last day of term and concluding at 3.00pm on the same day three weeks later; and
vii) During the NSW school holiday period at the end of term 4 in 2024 and each alternate year thereafter, for a period of three weeks concluding at 3.00pm on the Friday prior the last day of the school holiday period and commencing at 3.00pm on the Friday three weeks earlier (the last three weeks of the school holidays such that the father’s time concludes on the last Friday of the school holiday period).
Order 6 above (the father’s time) be suspended as follows:
a)During the weekend that comprises Mothers’ Day, from 3.00pm on Friday to 9.00am on the following Monday;
b)From 3.00pm on 25 December to 5.00pm on 26 December in 2019;
c)From 5.00pm on 24 December to 9.00am on 26 December in 2020 and each alternate year thereafter; and
d)From 9.00am on 26 December to 5.00pm on 27 December in 2021 and each alternate year thereafter.
Change Over
That unless otherwise agreed in writing between the parents, changeover shall take place at the child’s school/preschool on days that the child attends school/preschool, otherwise changeover take place at McDonald’s in Suburb N between the father and the mother, or their agent, with the mother to ensure that Mr D does not attend the changeover location at the time of changeover.
School
Commencing 1 January 2020, the mother ensure that the child is enrolled and attends preschool at least four days per week with each parent to be liable for out of pocket costs (after child care benefits are applied) equally and for that purpose:
a)Each parent pay his or her share to the child’s pre-school directly; and
b)Such payments to be in addition to any amount assessed to be paid by the child support agency.
Each parent may attend events at the child’s school and extracurricular activities that parents ordinarily attend.
Communication
For the purpose of facilitating communication between the parents, each parent communicate regarding the child via Divvito or such other application or website as the parties agree in writing (“the website”), except in the case of emergency.
The mother and father are to keep each other advised about the following:
a)any occasion that the child has been hospitalised or is due to be hospitalised as soon as practicable before or after admission;
b)any medical problems or illnesses suffered by the child whilst in that parent’s care as soon as practicable becoming aware of the problem;
c)any medication that has been prescribed for the child and details about how often this medication should be taken together with the required dose as soon as practicable after the prescription is prepared;
d)any significant school or religious functions the child is required to attend within 48 hours of becoming aware of the function;
e)their current residential address and any change to that address at least 24 hours prior to such a change;
f)their mobile telephone number and their email address within 48 hours of any change to that telephone number or email address.
Therapeutic Supports
The parents shall ensure that they attend upon the same therapists who are engaged with the child and for this purpose:
a)Within seven (7) days of these Orders, the mother shall inform the father in writing of the name and contact details of the therapist working with the child in relation to her behavioural challenges;
b)The mother shall keep the father updated of any changes to the child’s therapists within seven (7) days of any such change;
c)Within seven (7) days of receiving the name and contact details of the child’s therapist from the mother, referred to above, the father shall make an appointment to attend upon that therapist with the child and thereafter is at liberty to attend upon the child’s therapists at such times and frequencies as he arranges;
d)If it is possible each parent will ensure that their appointments with the child’s therapist are at time when the child is ordinarily in their care;
e)Where the child’s therapist is not available for appointments at times that the child is ordinarily in the care of a parent, then that parent may arrange an appointment at another time and provide the other parent with at least seven (7) days notice of the appointment;
f)Where a parent has arranged an appointment with the child’s therapist in accordance with order 12 e) above, the other parent will make the child available to attend the appointment with the parent who made the appointment; and
g)Leave be granted to each parent to provide a copy of the Single-expert report of Dr E dated 4 December 2018 to the child’s therapist.
Each parent notify the other parent of any appointments made for the child in relation to her health, welfare and/or development.
Except in case of emergency, the parents ensure any appointments for the child to attend upon a Paediatrician, are made with Dr F, unless otherwise agreed in writing between the parents.
The mother notify the father of the name and address of the child’s treating GP and keep him updated within seven (7) days of any change to the child’s treating GP.
Except in case of emergency, the parents ensure any appointments for the child to attend upon a GP are made with the GP that the mother has notified the father of in accordance with the Order immediately above.
The father shall:
a)Ensure that the child is reviewed by Dr F once in the first half of the year in 2020 and 2021;
b)Advise the mother of the date of the appointment within seven (7) days of such appointment being made;
c)Accompany the child to the appointment; and
d)Make the child available for the mother to take the child to appointments made by the mother pursuant to the order immediately below and the father shall not accompany the child to such appointments made by the mother.
The mother shall:
a)Ensure that the child is reviewed by Dr F once in the second half of the year in 2020 and each year thereafter until such time as Dr F deems it no longer necessary;
b)Advise the father of the date of the appointment within seven (7) days of such appointment being made;
c)Accompany the child to the appointment;
d)Ensure that the child engages with any development therapies (such as occupational therapy or speech therapy) and educational work (such a tutoring) recommended by Dr F or the child’s school;
e)Notify the father of all initial appointments made with services for treatment and/or therapy and provide the father with the contact details for such services, within seven (7) days of making such appointments;
f)Provide the father’s name and contact details to all therapeutic and educational services that the child is engaged with and request that they include the father
g)Make the child available for the father to take the child to appointments made by the father pursuant to the order immediately above and the mother shall not accompany the child to such appointments made by the father.
Each parent may contact any of the child’s treating therapists, including medical practitioners, and/or schools to obtain information about the child’s treatment and/or progress from such therapists directly and this Order operates as the necessary authority for the child’s treating therapists and/or school to provide to each of the parents information about the child’s treatment and/or progress.
21) Leave be granted to each parent to provide a copy of the Single-expert report of Dr E dated 4 December 2018 to their own treating mental health practitioners.
22) The mother continue to engage with the Perinatal and Infant Mental Health Service until such time as the service deems it no longer necessary.
23) The mother engage in any treatments and with any services recommended by the Perinatal and Infant Mental Health Service, the Department of Communities and Justice or S Centre until such time as that service deems it no longer necessary.
24) The mother forthwith arrange to engage with a psychologist, or appropriately experienced counsellor, for the purposes of assisting the mother with issues relating to family violence, alcohol use and the use of illicit drugs, and continue to engage for a period of 12 months at a frequency determined by the counsellor.
Restraints
25) Without admissions, for the personal protection of the child, pursuant to s68B of the Family Law Act 1975, each parent is restrained from allow the child to remain in the presence of excessive conflict or violent behaviour and in the event that a parent is involved in any such behaviour while the child is their care, that parent must report the incident to the Police force of the state in which that parent is resident as soon as practicable after the incident has commenced.
26) That the mother and the father are each restrained by injunction from:
a)abusing, insulting, belittling, rebuking, or otherwise denigrating the other parent or a member of their household, within the presence or hearing of the child, or the other parent; or
b)allowing the child to remain in the presence or hearing of any person denigrating the other parent or a member of their household;
c)consuming alcohol to excess, such that their alcohol consumption would prohibit them from legally driving a car, while the child is in their care;
d)consuming or being affected by illicit drugs or remaining in the presence of any other person consuming or affected by illicit drugs while the child is in their care.
27) The mother not consume alcohol on more than two days per week.
28) The mother not allow Mr D to be present in her home when the child is in the mother’s care or otherwise allow the child to remain in the presence of Mr D, until such time as the mother and Mr D have commenced relationship counselling AND Mr D has enrolled, continues to attend and, upon successful completion, the mother provides to the father copies of the certificates of completion of:
a)The ‘Taking Responsibility – a course for men’ course facilitated by Counselling G or ‘Facing up’ facilitated by O Care; AND
b)The ‘Managing Anger’ course facilitated by Counselling G, or an equivalent anger management group therapy course.
29) The appointment of the ICL be extended for 12 months.
30) The ICL recommend a counsellor to provide counselling to each parent intended to improve their communication.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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