Don and McGlennan (No.2)

[2017] FCCA 974

FEDERAL CIRCUIT COURT OF AUSTRALIA

DON & MCGLENNAN (No.2) [2017] FCCA 974

Catchwords:
FAMILY LAW – Parenting – child with severe autism – spend time orders sought by mother.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Applicant: MS DON

Respondent: MR MCGLENNAN

File Number: DNC 148 of 2009

Judgment of: Judge Young

Hearing dates: 30 & 31 March 2017

Date of Last Submission: 31 March 2017

Delivered at: Alice Springs

Delivered on: 31 March 2017

REPRESENTATION

Counsel for the Applicant: Ms Bowen

Solicitors for the Applicant:	Bowen Lawyers
The Respondent:	In Person

Counsel for the Independent Children’s Lawyer: Mr Lewis

Solicitors for the Independent Children’s Lawyer: Northern Territory Legal Aid Commission

ORDERS

1. That pursuant to section 70NEC of the Family Law Act 1975 (Cth) the Court finds the father has contravened order 1(a), 1(b) and 1(c) of the orders made on 18 November 2015.

2. That the father on or before six (6) months of the date of this order must pay to the Registry Manager a fine of $250.00.

3. That the father has sole parental responsibility for the child, X born (omitted) 2000.

4. That the said child live with the father in (omitted).

5. That the said child shall spend time with the mother in Darwin as follows:

   (a)During the 2017 mid-year school holidays:

   (i)From 2pm to 4pm on Saturday 24.6.2017 at Catholic Care (omitted);

   (ii)From 2pm to 4pm on Sunday 25.6.2017 at Catholic Care (omitted);

   (iii)From 10am Monday 26.6.2017 until 10am Monday 10.7.2017 in Darwin.

   (b)During the 2017/2018 Christmas school holidays:

   (i)From 2pm to 4pm on Saturday 6.1.2018 at Catholic Care (omitted);

   (ii)From 2pm to 4pm on Sunday 7.1.2018 at Catholic Care (omitted);

   (iii)From 10am Monday 8.1.2018 until 10am Monday 29.1.2018 in Darwin.

   (c)During the 2018 mid-year school holidays:

   (i)From 2pm to 4pm on Saturday 30.1.2018 at Catholic Care (omitted);

   (ii)From 2pm to 4pm on Sunday 1.7.2018 at Catholic Care (omitted);

   (iii)From 10am Monday 2.7.2018 until 10am Monday 16.7.2018 in Darwin.

6. That handovers for X to spend time with his mother and siblings occur at Catholic Care in (omitted).

7. That the mother shall collect the child from Catholic Care (omitted) at the commencement of the said child’s time with her and deliver the child to Catholic Care (omitted) at the conclusion of the said child’s time with her, and be responsible for all travel costs, such travel to occur by road only, and in the presence of no less than one of the said child’s siblings.

8. That the said child’s siblings and other immediate family members be permitted to be present at all times the child is spending with the mother.

9. That at the commencement of the time the child is to spend with the mother, the father shall provide to the mother the following information in writing:

   (a)A list of food and drinks the child prefers;

   (b)An outline of the child’s daily routine;

   (c)Any medical appointments scheduled for the child to attend during the time he is to spend with the mother, and the mother be at liberty to attend any such appointments, upon noting that the father shall, where ever possible, not schedule any appointments during the time the child is to spend time with the mother; and

   (d)Any medication the child is prescribed to take, and the mother shall ensure that the child takes the medication.

10. That the father ensure X attends (omitted) School for a minimum of 3 days per week for such time until X has completed the school’s transition programme.

11. That a copy of this Order and the Family Report prepared by Ms S on 28 June 2016 be provided to (omitted) School by the Independent Children’s Lawyer within 14 days.

12. That this Order authorises (omitted) School to liaise with the mother with a view to co-ordinating holiday time arrangements and for the mother to liaise generally with the school regarding any action that she can take to assist ensuring that X has a smooth transition to her care for the holiday time, as well as to request academic information from the school regarding X.

13. That this Order authorises for the mother to be at liberty to request and obtain information from X’s paediatrician, other health professionals and service providers to X.

14. The mother is at liberty to, and this Order authorises her to, obtain from Dr B, or such other paediatrician or other medical practitioner as Dr B may recommend, a prescription for the said child for such anxiolytic medication as may be recommended and prescribed by the said paediatrician or other medical practitioner, and this Order authorises the mother to administer such medication to the said child in accordance with the directions of the said paediatrician or other medical practitioner.

15. That the mother and the father shall keep each other informed of their current residential addresses, telephone numbers, email addresses and any changes thereto within 48 hours of the changes occurring.

16. That the mother and the father shall communicate with one another about the child’s issues by SMS, and in the event of emergency only, by telephone.

17. That the father shall provide to the mother the following information upon receiving the mother’s request, and otherwise within 48 hours from the time the child has attended upon the following:

    (a)Name and contact details of the child’s school;

    (b)The names, addresses and telephone numbers of any and all medical therapeutic and other practitioners, attending to the child’s health and wellbeing needs;

    (c)The names and contact numbers of the child’s after school care and Respite services; and

    (d)Any other persons or services attending to the child’s needs.

18. The mother be restrained and an injunction be granted restraining her from travelling with X on a commercial airline for the purposes of spending time pursuant to these orders. 

19. That the mother ensure that she transports X to and from Darwin by car.

20. That the father be restrained and an injunction be granted restraining the father from changing the child’s principal place of residence from the (omitted) area unless it is for the purposes of returning to Darwin.

21. That the Independent Children’s Lawyer be at liberty to apply to be discharged after the period referred to in paragraph 3a. above has elapsed.

IT IS NOTED that publication of this judgment under the pseudonym Don & McGlennan (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ALICE SPRINGS

DNC 148 of 2009

MS DON

Applicant

And

MR MCGLENNAN

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgement were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Contravention Penalty

1. In view of your refusal to enter a bond, and given the fact that I would need to have you assessed for community service, my reluctant preference is to impose a fine.  You have already been subject to a reasonably significant pecuniary penalty because I have made a costs order against you and an order that you pay the mother’s costs and disbursements in coming down for the failed contact.  So, while I consider your contravention of the orders to be a serious one in that it was deliberate, I am not going to impose the fine of the size that I think your contravention genuinely merits in recognition of the fact that there is already a significant pecuniary cost to your conduct.  So accordingly, I find the contraventions proved and I fine you $250.00.

Parenting Issues

1. This is a case concerning X, who is now 16 years old.  X suffers from severe autism and global development delays.  He has been living with his father since orders made by Burr J in 2010.  The orders provided for the father to have sole parental responsibility and for X to live with his father. 

2. In September 2014 an order was made permitting the father and X to relocate from Darwin to Alice Springs and since that time or very shortly afterwards the father and X have resided in Alice Springs or outside Alice Springs.  At present X and the father reside on (omitted) which is, I understand, Aboriginal owned land about 60 kilometres north of (omitted).  Mr McGlennan, the father, is a man of Aboriginal descent.  The mother is not, as I understand it. (omitted), according to Mr McGlennan, provides an appropriate place for X to live.  There are open spaces and it is quiet.

3. One of the issues in this case has been X’s acknowledged propensity to anxiety.  As a severely autistic child, he, in common with many other autistic children, is heavily dependent upon an established routine to maintain his stability and equilibrium.  Mr McGlennan has said that he has done that.  He has established a routine, equilibrium and stability in X’s life over the past few years.  No one has suggested otherwise and I accept that he has done that.

4. The real issue arises out of the mother’s proposal that X should spend time with her and other family members in Darwin on three occasions in the school holidays in the middle of this year for two weeks, three weeks for the long school holiday at the end of 2017 and beginning of 2018, and the mid-year holiday in 2018.  Thereafter, in September 2018, X will turn 18 and this court will have no jurisdiction.

5. The father’s principal objection to the mother’s proposal is that holidays in Darwin will be severely disruptive to X’s routine.  I think that is obvious enough. It will be a disruption to his routine.  The question becomes, “Is there some risk to the proposal?” and, if so, can the risks flowing from the disruption be managed.  Another question is, is it worth taking any risk?  Is there some point to taking any risk? 

6. It is said that the point of taking the risk is the need for X to have a meaningful relationship with his mother and his other siblings.  The phrase “meaningful relationship” in this case is to be considered in the particular context of this case.  As I have mentioned, X is severely autistic.  He is also non-verbal. 

7. There is no real indication that X understands the nature of family relationships.  There is no real indication, and Mr McGlennan himself conceded this, that X sees him as his father.  He is a person who X is close to, he is a person who cares for X and by all reports cares for him very well.  But that is not to say that X necessarily recognises him as a father.  Similarly, there is no real evidence that X recognises his mother or, indeed, his siblings as siblings as such, understanding the nature of that relationship.  I do not make any finding about that.

8. The point of maintaining or encouraging the relationship is on a number of levels.  First, whether there is some emotional or psychological benefit to X in having contact with people who, in fact, are his family members and who I have very little doubt, having heard from his mother and his sister, love him very much and care for him and want the best for him, as does his father. 

9. The second element to the meaningful relationship is the future.  Mr McGlennan described very frankly his fears for the future for X.  He plans – he hopes – to have X become semi-independent and living in a unit of his own in (omitted).  Mr McGlennan was frank in admitting that the chances of that actually occurring might not be great.  He also acknowledged that it might be considered more likely that X will remain entirely dependent upon other people for his care, as he does at the moment. Mr McGlennan cares for him 24 hours a day. 

10. So, what of the future? Mr McGlennan is a man of Aboriginal descent.  He told me that he recognises that in Australia, Aboriginal men have a low life expectancy.  He, Mr McGlennan, said that his uncle, who was 42, died recently of a heart attack.  I think Mr McGlennan is conscious that he too may have a reduced lifespan related to his Aboriginality.  That being the case, some thought has to be given to the future and creating a stable framework for this child. 

11. Unfortunately in this case there is a great deal of hostility, particularly from Mr McGlennan to Ms Don.  Regrettably, that prevents him, I think at times, from seeing things clearly.  He is very suspicious of the court and he is suspicious of organisations that provide welfare and so on.  I do not suggest that those suspicions are reasonable but they exist and it makes things difficult for everybody concerned, including Mr McGlennan.  More relevantly I think it makes things difficult for X. 

12. This is the sort of case that requires maximum cooperation between parents, maximum cooperation within a family to deal with an extremely difficult situation, a situation that very few families have to deal with.  As I say, regrettably, this is not a case where the parents are able to cooperate effectively, so it is up to me to make a decision about this.  I think it is a very difficult decision and there are arguments – strong arguments on both sides. 

13. However, I am persuaded that it is in X’s best interests that he have a meaningful relationship with his mother.  Meaningful relationship in this case means perhaps no more than familiarity with her, familiarity with her environment, familiarity with his sister, particularly Ms M, and his brother Y who live with their mother in Darwin. 

14. Ms M, in particular, impressed me as an intelligent and mature young woman who will do her best for her brother.  I think it is important that X be encouraged to be at least familiar with Ms M.  They have not seen each other for two years, which is a tragedy – perhaps more than two years.  It probably has been up to three.  I propose to make orders that she be permitted to spend time with X along with her mother next week.

15. I think there is value, for those reasons, in X having a relationship or at least familiarity with his mother, his brother Y and his sister Ms M. It is in his long-term interests in case they are the ones called upon to be responsible for his full-time care.  I think it is appropriate that that time be spent in Darwin if at all possible.  I acknowledge, as Mr McGlennan says, that there is a real risk in the upset to the routine.  Mr McGlennan has now left the court.

16. The evidence from Dr B, paediatrician, is that he believes that the risks can be managed given some transition. I am satisfied that some transition has taken place because the visits at CatholicCare in (omitted) that the mother has made over the past few months have gone without mishap, if I can put it that way, and show that X is familiar with his mother and comfortable in her company.

17. Dr B says that he would be willing to arrange for a prescription for an anti-anxiolytic drug, Risperidone, in a low dose for X if that was necessary to deal with his anxiety and I propose to make an order permitting the mother to obtain such a prescription from a paediatrician.  Hopefully, it will not be necessary to use.  The mother has given evidence that she will travel with Ms M and Y and that she will take it in easy stages back to Darwin.  She has said that there is, if medical assistance is required, a doctor at (omitted), (omitted), (omitted) and, of course, Darwin.  So there is some medical assistance along the road in a journey of some 1300 kilometres. 

18. Both Ms Don and Ms M, who gave evidence – and I might say Ms M is a young woman in her 20s with a child of her own – impressed me as calm and thoughtful people.  Ms M clearly has a good relationship with X or, at least, X is comfortable with her.  Mr McGlennan confirmed that himself.  And Ms M appeared relatively confident that she and her mother and Y could manage any anxiety.  I think they are sensible enough, if the journey for some reason proves impossible, to consider returning to Alice Springs.  I am confident that they would bear that in mind if it were appropriate.

19. The family report writer also recommended that there be time spent in Darwin.  She consulted the principal of X’s school and outlined the various possibilities.  The principal of the school, Ms H, who, of course, knows X very well and knows the nature of his condition, seemed to largely agree with Dr B’s view, which is that she thought, if the journey was well managed, the risk of an attack of high anxiety by X was relatively low.

20. Given that Dr B and Ms H, who are the experts, think that the risk is manageable or at least not high, it appears to me to be appropriate that the arrangement take place even though there is some risk for X. I have addressed, in passing, section 60CC(2) of the Family Law Act1975 (Cth) and the nature of the meaningful relationship and what it means in the circumstances of this case.

21. I must also have regard to the other relevant matters in subsection 60CC(3).  X has expressed no views and he is not capable of doing so.  X’s relationships with his parents – I have observed, of course, that he is well cared for by his father and has an affectionate relationship.  It appears that X recognises his mother, which is not the same as saying that he recognises she is his mother.  But he recognises her.  He appears comfortable with her and appears to take pleasure in her company according to the most recent observations from CatholicCare. 

22. The extent to which the parents have taken the opportunity to participate in decision-making.  Well, given the hostility between - particularly of Mr McGlennan towards the mother, it has not been possible, really, for her to play any particular role.  And, of course, there is the sole parental responsibility order.  There will be a change in the child’s circumstances at least for the period of any time he spends in Darwin, and I have mentioned the risks associated with that.  But, for the reasons I have given, I consider that those risks are manageable and, for the reasons I have given, worth taking.   

23. One of the difficulties about the father’s proposal, which is the mother and X’s siblings should simply spend time in Alice Springs, is that the mother is a person in very modest circumstances.  Ms M, the sister, has a very young child of her own and it is extremely difficult for them to travel to (omitted) and spend extended day time visits as the father proposes.  It is expensive.  It is inconvenient.  

24. Capacities of each parent.  The father made some serious attacks on the mother’s parenting capacity but I am not satisfied that there is any real substance in all of that.  He said that she did not understand the importance of routine in X’s life.  That was not apparent to me from her evidence.  It is, however, I emphasise, important for her to do the best she can to ensure that routine is followed.  And I propose to make an order that Mr McGlennan provide an outline of X’s routine as per the orders set out in the Independent Children's Lawyer’s proposed minute. 

25. The attitude to parenting of the parties.  Both parents have demonstrated a commitment to X’s care and needs. Family violence has been a notable aspect of this case in the past but it is not presently an issue.  The Independent Children’s Lawyer and the mother sought a self-executing recovery order in the event that the father does not make the child available.  I am not willing to make such an order for the reason that I think the intervention of the police would be another element altogether and I am not prepared to risk that.

26. However, given Mr McGlennan’s deliberate contravention of orders, any further contravention of orders would probably run a real risk of an order for a sentence imprisonment.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 16 May 2017