Fleming & Fleming

FAMILY COURT OF AUSTRALIA

FLEMING & FLEMING

[2009] FamCA 123

FAMILY LAW – CHILDREN – Parenting proceedings – child with autism and developmental delay – father seeking increased time including overnight and block periods during school holidays – discussion of mother’s attitude to father and father’s capacity to meet the child’s needs - orders structured to increase time with father and introduce and extend overnight time having regard to child’s vulnerability to change and to introduce block time during school holidays

Family Law Act 1975 (Cth)

APPLICANT:

Mr Fleming

RESPONDENT:

Ms Fleming

INDEPENDENT CHILDREN’S LAWYER:

Slade Manwaring

FILE NUMBER:

SYC

2542

2007

DATE DELIVERED:

25 February 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Moore J

HEARING DATE:

14, 15, 16, 28 January 2009

REPRESENTATION

THE APPLICANT FATHER:

Appeared on his own behalf

THE RESPONDENT MOTHER:

Appeared on her own behalf

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Eggleston of Slade Manwaring

Orders

All previous orders are discharged.
The parents are to have equal shared parental responsibility for … born … July 2004 (“the child”).
The child is to live with his mother.
The child is to spend time with his father as follows:
(a) during week days, subject to order 4(c)(i)
(i)after school to 7pm each Wednesday [having been bathed and fed]
(b) during weekends, subject to order 4(c)(i)
(i)commencing immediately from 9am to 7pm every Saturday or every second Saturday at the father’s election;
(ii)commencing 1 May 2009 from 9am Saturday to 10am Sunday each alternate weekend;
(iii)commencing 1 October 2009 from 9am Saturday to 5pm Sunday each alternate weekend;
(iv)commencing 1 March 2010 from after school Friday to 5pm Sunday each alternate weekend; and
(v)commencing 1 August 2010 from after school Friday to before school Monday each alternate weekend;
(c) during each school holiday period:
(i)Until the commencement of block visits during school holidays at the end of term 3 in 2010, the orders in 4 (a) and 4(b) hereof are to continue during school holidays and after the introduction of block visits during school holidays as provided hereunder the arrangements in orders 4(a) and 4(b) hereof are suspended during school holiday periods:
(a)for a period of 5 days during the holidays at the end of term 3 in 2010 as agreed and failing agreement from 9am Monday to 5pm Friday during the second week;
(b)for a period of 7 days during the December/January 2010/2011 school holiday period as agreed and failing agreement from 9am 2 January to 5pm 8 January 2011;
(c)for a period of 7 days during the holidays at the end of term 1 in 2011 as agreed and failing agreement from 9am Monday to 5pm Sunday in the first week;
(d)for one half of all school holidays commencing during the school holidays at the end of term 2 in 2011 as agreed and failing agreement the first half in odd numbered years and the second half in even numbered years;
(d) on special occasions, subject to order 5
(i) on Father's Day each year, from 9am to 5pm; and
(ii)until the commencement of order 4(c)(i)(d) unless otherwise agreed, from 12 noon Christmas Eve to 12 noon Christmas Day in odd numbered years and from 12 noon Christmas Day to 12 noon Boxing Day in even numbered years; and
The father's time is suspended on the following occasions if by these orders the child is to be in his care:
(i) on Mother's Day from 9am to 5pm; and
(ii)from 12 noon Christmas Eve to 12 noon Christmas Day in even numbered years and from 12 noon Christmas Day to 12 noon Boxing Day in odd numbered years.
For the purpose of changeover whenever the orders provide for the child’s time with his father to be after school or before school collection and return is to be undertaken by his father at the school, and at all other times the father is to collect the child from his mother’s residence at the beginning of the period specified and Mr W or the mother is to collect the child from his father’s residence at the conclusion of the period specified save that the father will return the child to his mother’s residence on Wednesdays at 7pm while ever Mr W is employed on Wednesday evenings and for that purpose the mother is to advise the father in writing forthwith of that change in circumstances.
Both parents
(a)are entitled to receive advice and reports from any treating medical or other health professional related to their son’s care and to consult with any such professional;
(b)are entitled to be involved with their son’s school, attend activities at the school and participate at the school to the extent permitted of any parent by the school;
(c)are to provide to the other in writing details of all appointments they have with any medical practitioner or health professional related to their son’s treatment or care.

By consent:

The father is to forthwith do all things necessary to enrol in and complete the following:
(a) the Hanen Course; and
(b)any remaining requirements as recommended by the child’s occupational therapist.
The parents are restrained from denigrating the other or permitting any family member to do so in the presence or hearing of the child.
Within 14 days from the date of these orders the mother is to provide the father with:
(a)by email or by an audio recording a list of words that the child uses in his vocabulary;
(b) details of the child’s bed, his medication and what he has for breakfast;
(c)a montage of photographs of her home to assist the child’s transition to overnight at his father’s home.
Within 28 days from the date of these orders the father is to:
(a)provide to the mother a collage of photographs as nominated by mother,
(b)purchase a bed for the child the same as or similar to the bed he uses at his mother's home;
(c)set up a montage of photographs in relation to travel from his home to the mother's home.
The parents are to do all things necessary to enrol and complete a communication course as recommended by Dr S.
The parents are to do all things necessary to ensure that all communication about the child’s needs is by email or SMS and not at changeover.
The parents are each to pay one half of Dr S’s outstanding costs within one month from the date of these orders to the intent that the whole of his costs are shared equally.
The parents are each to pay one half of the independent children’s lawyer’s costs as advised within 4 months from the date of these orders.

IT IS NOTED that publication of this judgment under the pseudonym Fleming & Fleming is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2542 of 2007

MR FLEMING

Applicant

And

MS FLEMING

Respondent

REASONS FOR JUDGMENT

Proceedings

This decision is about the time the parties’ 4½ year old son (“the child”) will spend in his father’s care and there are some ancillary decisions to be made. Those issues and the differences in the parents’ proposals had narrowed somewhat by the time the hearing concluded and they will be outlined shortly along with the position put by the independent children’s lawyer, Mr Eggleston. The current orders provide for the child to spend time with his father Wednesday afternoons from 3pm to 7pm and for the day on Saturdays from 9am.

Evidence

Underpinning the evaluation of his best interests is a body of evidence from the parents, who ably represented themselves, supplemented by evidence from a number of lay and professional witnesses. The latter includes evidence from the court appointed expert, Dr S, a child and family psychiatrist, who produced his primary report in December 2007, and addendum in May 2008 and he gave further evidence at the hearing after he had reviewed more material.

Background

The mother (31) and the father (44) began a relationship in early 2001 and they married in December 2003. The child was born in 2004. They separated on 24 December 2004.
Both had been married previously. The mother’s three year marriage had broken down in 1999; there were no children. The father’s 10 year marriage had broken down in 1997; there are two children. M is now 16 years of age, E is 15 and by agreement with their mother he has cared for them regularly over the years. Given M’s age his arrangements have become more flexible and E now spends her time about equally between her parents. Since separation both parents have formed other relationships. The mother met her partner, Mr W, not long after the separation and they soon began living together. They have two sons: L and a baby born just a couple of weeks before the final hearing. Mr W has not been married and he has no other children. The father met his partner, Ms H, in 2007. They do not live together and there are no current plans to change that but they spend time together regularly at his home.
The mother is occupied full time at home with three young children. Mr W is a tradesman and he also has a second job night driving for a transport operator. They live at O. The father works full time in sales which he says gives him some flexibility to accommodate his parenting responsibilities. He lives at C but he is contemplating renting larger premises to better suit arrangements for the children.

The child

In early 2007 the child was diagnosed by the K Diagnostic & Assessment Service [K Diagnostic] with autism and some developmental delay. There is a good deal of evidence about his difficulties with communication, socialisation, and behavioural issues including idiosyncratic and repetitive behaviour. Dr P, a staff specialist paediatrician at K Diagnostic, has maintained a central role in his treatment and the co-ordination of intervention services. A number of reports have been produced charting the involvement of professionals and the child’s development these past two years.
The child is due to begin his schooling this year at F School which provides special education for children with autism. He no longer has speech therapy or occupational therapy and there has been a break of some months in his consultations with a psychologist, Ms D, although the visits may resume in the future. More recently he was referred by K Diagnostic to Dr N, psychiatrist, which the mother explained was arranged on an emergency basis after the child had a tantrum in the car. Dr N had seen him once with his mother and Mr W and a further appointment had been arranged for 23 January. Dr N conducts sessions at the school he is to attend although the mother is not sure yet if the sessions will be group or individual.
Without doubt the mother has been at the front line not only of the problems that led to the diagnosis in the first place - behavioural difficulties within his playgroup and her observation of regression in his verbal and social skills - but also in his treatment and the involvement of an array of intervention services such as occupational therapy, speech therapy, as well as developmental support through Learning Links and Building Blocks and assistance from a psychologist with management of the behavioural consequences of autism including the development of communication skills. In the process a range of strategies have been developed including - but by no means limited to - sensory activities, modelling of language and play skills, and using visuals to support understanding and preparation for change. The child has been having homeopathic remedies since he was quite young, well before developmental change was noted.
The mother describes the child’s behaviour as having deteriorated over the past 9 months or so. She and Mr W give an account of his problematic behaviour on return from his father’s care on Wednesday evenings and they describe Sundays after he has spent the previous day with his father as a ‘write off’. She contends there is no active communication between the father and the child who feels excessively contained or restrained at his father's home and that is released when he returns to her care. However, this theory has no support from Dr S who observed the father to be an effective communicator with the child and nor from Ms D who told Dr S she is not surprised at misbehaviour after visits to his father but that is more a feature of autism than any fault of the father’s - it needs to be taken into consideration in decisions about his arrangements nonetheless. The father reports a different experience of the child’s behaviour.
However different their experiences might be, there is not the slightest doubt that many aspects of the child’s behaviour are challenging and his development requires considerable support.
It is apparent the father had some initial hesitation accepting the diagnosis of autism - apparently in the hope there might be some treatable underlying cause, which one of the professionals involved described as not uncommon, but there is no doubt that has long since been overcome. He accepts the diagnosis and, contrary to the mother’s view of it, it is accepted he does have an appreciation of the responsibilities related to the child’s care and management.
Plainly the parents have not been aligned on an equal footing in the task of addressing their son’s needs and treatment; his mother indisputably has the front running and his father stands back a step. This appears to have its origins in decisions about his care right from the time of his birth and continued after their separation, which will be outlined shortly, and no doubt personality and temperament play their part. Certainly their relationship as parents is extremely poor, it is beset by mistrust and they appear unable to bridge the communication divide for any constructive discussion of issues directly related to their son’s care. Unsurprisingly, they each have different views about where the responsibility for that lies. In any event, this has meant that their engagement together with the health professionals involved in their son’s life quickly became problematic and the father took the view early on after the diagnosis that the tension deflected attention from the child and he withdrew from joint consultations. He has maintained contact with those involved outside the mother’s consultations, more particularly liaising with Dr P, and he participates separately in various programs such as that provided by Building Blocks. The mother alleges shortcomings in his engagement with the professionals, but there is nothing to substantiate that and nor is there any criticism directed to him from any of those involved.
This state of affairs is most unfortunate since consistency and cooperation is desirable - Ms D remark to Dr S about the need for it comes as no surprise – and would enhance their son’s well-being and support his development.

History

The evidence reveals quite a bit of history going back well before the parents met and each gives an account of certain events during their relationship and since their separation.
In recounting her earlier history the mother reported significant difficulties as a teenager, including a problematic relationship with her parents. She was admitted to a psychiatric unit for six weeks at the age of 16 after attempting self harm and she experienced a recurrence of depressed symptoms after separation from her first husband whom she described as manipulative, violent and abusive. Hospital records indicate she experienced further difficulties during the pregnancy with the child when she related feeling depressed and suicidal and again after the separation from the father she presented at a hospital emergency with depressed symptoms and talked of taking her life. She was referred to a support service but attempts to see her there were unsuccessful and it was not taken further. Later, after this litigation had been instigated, she consulted a psychiatrist, Dr E, who did not assess her as clinically depressed at the time.
When Dr S saw her she was taking anti-depressant medication but he did not observe any clinical depression or evidence of mental illness. In his conclusions Dr S noted her history of significant emotional difficulties, along with her report that relationships with her parents had improved and she has their support. According to his assessment, she is a person with a central core of insecurity who values the support of somebody with strength to their character but she resents being controlled and she sets high standards [being quite pedantic and detailed in her approach to things such as her son’s health] and she becomes angry when others express a different view or behave contrary to her expectations. She probably sees her anger as justified but she probably underestimates its impact on others. While none of this of itself is an emotional disturbance, it probably makes her vulnerable to it if overwhelmed or dominated.
As for the father’s history, he recounted an uneventful childhood in a quiet suburban environment with no major upheavals during his upbringing. He went to university for a time but left and found work in the finance sector, ultimately ending up in sales. Dr S noted no issues of any relevance related to his history or presentation and described him as gently spoken with a quiet manner, of average intelligence, that he seemed thoughtful and he showed a normal range of emotional responsiveness.
As for events during their marriage, it seems to be fairly common ground that the unhappiness became more pronounced from the time of the pregnancy and things did not improve after the child’s birth. The father came to see her as emotionally volatile and inflexible – there was conflict over small things, she was repeatedly critical of him and presented lists of his failings - and she marginalised him as a parent right from the start. The mother describes him as emotionally abusive, slamming doors, throwing things and she says he punched a hole in a wall.
On their separation the child remained in his mother’s care but difficulties arose about his arrangements. The mother’s evidence paints the father as uncooperative and inadequate to the responsibility while his evidence suggests the mother dictated and controlled arrangements and she was peremptory, angry and abusive [eg she called him just a ‘fucking sperm donor’]. The upshot was that for 18 months after separation the father did not have time with his son outside the mother’s presence or away from her residence - and his other two children either had little or no contact with the child. The mother says he only spent about 17 hours with the child in that time, but she maintains this was the result of disinterest and not the result of any restrictions by her.
In May 2006 the father instituted proceedings in the Federal Magistrates Court for parenting orders seeking time with the child alternate weekends, overnight on Wednesdays and for half the school holidays. In the mother’s response she sought an order for his time to be limited to one hour at her residence [by then with Mr W] each Monday, Wednesday and Friday – which runs counter to the proposition that she had not been restrictive earlier.
This resulted in an order made on 21 July 2006 for the child to spend an hour with his father Saturdays and Wednesdays, the father was to collect him at the mother’s residence from the maternal grandfather, he was to remain in the vicinity of the mother’s residence, she was to provide him with various items and she was also to authorise the father’s consultation with the child’s therapists and medical practitioners.
Difficulties continued and further orders were made on 7 September 2006 extending the father’s time with the child to Wednesdays 4pm to 7pm and each Saturday from 9am to 5pm with changeover to occur at McDonalds and at the same time the matter was set to be heard in February. But the situation did not settle and there was conflict at McDonalds on 4 October 2006. Each gives a different account of what happened, but what is beyond dispute is that the mother took the child and went to the police alleging the father had assaulted her. He denies it. But charges later resulted in a bond, no conviction recorded, and an AVO issued against him. The father regards this as the first of several false accusations about his conduct on changeover which had distressing consequences for him and later prompted his decision to take a video camera to changeover and arrange for an independent witness to observe those occasions.

The matter was back before the Federal Magistrate on 12 October 2006 when orders were made for the existing arrangement to continue with changeover to henceforth occur at a contact centre and an independent children’s lawyer was appointed. However the contact centre withdrew their facilities not long afterwards for reasons elaborated in a letter from the manager of the centre relating to unacceptable behaviour by the mother - her refusal to adhere to time requirements, non-compliance with the centre’s rules including approaching the father and his companion in the area specifically designated for the use of the ‘drop-off parent’, and abuse directed at the case manager. The mother airs her different view of it all in a lengthy letter she wrote to the CEO of the contact centre, calling the case manager’s reasons a ‘complete work of fiction’ and accusing her of being unconcerned about the welfare of children entrusted to her care, concerned to keep fathers happy, and alleging discrimination because she had defended the needs of her child.
On 21 December 2006 a consent order was made for the changeover to occur at McDonalds, the mother not to be involved, and Mr W or the maternal grandfather to be responsible for it. It was shortly after this that the diagnosis of autism and development delay was made.
On 14 February 2007 the matter was back before the Federal Magistrate. The scheduled hearing was vacated, the mother was directed to keep the father and the ICL fully informed of all steps in relation to assessments for the child and to provide the father with the necessary written authorities for his treating doctors and health professionals so the father could receive all reports and other information, including details of prognosis and treatment. The matter was adjourned to May and the hearing deferred to a date in August.
But the mother suspended contact in February – there was a dispute about child support – and it was back before the Federal Magistrate on 22 March 2007. Further orders were made – time arrangements for the father were retained – the August hearing was vacated and the matter was transferred to this court.
On 24 July 2007 Dr S was appointed by the court as the expert to report and he was directed to address certain specific issues. His quite comprehensive report did not become available until January 2008. He closed with an opinion about the child’s time, expressed this way:
‘The history of this matter and the parties' pleadings provide abundant evidence that they have a quite limited ability to communicate effectively on matters related to [the child]. I formed the view that this has had an important impact on [the child] and it has been a significant factor in some of the reported behavioural problems that the mother has been having. In the longer term, [the child] is not going to cope with this particularly well when it impacts directly on him, so in my view a mechanism should be established that minimises direct contact between the parents, such as changeovers through preschool or school and also that all therapy and educational resources maintain an independent relationship with each parent and provide any written information or instructions to each parent as well.
I would suggest extending the Wednesday visit now, then introducing one overnight in mid 2008 and working gradually to the orders the father seeks by the end of 2009.’
Earlier in his report [page 12] he recorded the father as wanting the child at the same time he had his older children; namely, every second weekend, Wednesdays overnight and half the school holidays.
On 2 April the parents were directed to file their evidence according to a time schedule and they consented to further interim orders. They agreed to the child spending certain time with his father on specific dates and to extend the Saturday time to conclude 7pm subject to the father complying with recommendations of the occupational therapist; they also agreed the changeover for the Wednesday period would be the entrance of IGA at O until the end of June and from then on the father would collect him from the mother at IGA and Mr W would collect him from the father’s residence; the father agreed to enrol and complete the Makaton signing course and the Hanen course and there was agreement about the mother providing written authorities for doctors and health professionals to enable the father to receive all reports and information about the child’s condition and treatment, and she would give him full details of all appointments which it was recognised the father could attend. In those same consent orders they recorded the remaining significant issue to be when overnight time should commence for weekends and holiday visits – the mother was proposing overnight commence from 29 November 2008 or after the father had completed the courses; the father was proposing [relying on Dr S’s recommendation] overnight commence June 2008. They also recorded their agreement to formulate certain questions for Dr S and to seek his views about when overnight should commence and any attached conditions.
There had been further conflict. On 17 November 2007 there was an incident giving rise to mutual allegations by the father and Mr W of verbal abuse and threats. Mr W reported to the police an alleged breach of the AVO by the father - Mr W was a protected person by virtue of sharing a domestic relationship with the mother – and the subsequent involvement of police is cited by the fahter as the result of another false accusations and further cause for his decision to take a video camera and an independent witness to changeovers. According to the father there had been loud and heated arguments between himself and the mother before the separation but after the separation he never raises his voice and just leaves rather than engage with her hostility. This incident between him and Mr W on 17 November is the one time he says he did not leave and he regrets it. Mr W did not sustain the complaint to the police and nor did the father take his view of it any further.
On 17 May 2008 there was a further incident at changeover. The mother claims he grabbed the child from her while she was trying to explain something to him and he threw a water bottle which hit her son, L. She reported it to the police and took her son to a hospital for examination. The father denies it happened according to her description and he offered to establish that by showing a video of the occasion, although no one took the offer up.
On 28 August 2008 further dispute arose when the father returned the child to his mother’s home. Without recounting the detail, he alleges the mother said to him: ‘get out of my way and give me my son you sack of shit’, she hit him on the arm, called his son M ‘fucking stupid’ and said he would not be seeing the child on Saturday as she walked off. She denies this account of it but again he offered to refute her denials by showing a video of what happened, which no one elected to view.
2008 also saw mutual accusations of cancellation of court ordered time periods, the implication being the cancellation was without just cause. In particular, the father’s appointments with the occupational therapist had to be cancelled on several occasions, including a cancellation on 5 November because there was a dispute about where he was to pick the child up: the mother insisted he come to the doctor’s surgery where she was at the time whereas he insisted it be at the designated changeover venue.
In the meantime Dr S’s addendum report had become available giving his responses to questions asked of him by the mother and his comments on the parents’ proposals relayed by the ICL. As for the latter, putting aside special occasions, their proposals were noted as follows:
(a)The father’s was essentially the introduction of Saturday overnight in June 2008, the extension of the Wednesday visits by an hour until December 2008 when that would become overnight; the weekends would be extended until two sequential overnights were in place by December and then three sequential nights – Friday to Monday – in December 2009; school holiday time would be introduced in June 2008 gradually with one week blocks in December 2009 and three week blocks in December 2012.
(b)The mother’s was for the Wednesday visits to increase in duration by two hours immediately and by a further two hours in July 2008; overnight would be introduced on the weekends for one night in November 2008 and the Sunday morning return extended to later in the afternoon in March 2009 and extended to commence Friday evening in September 2009. He noted no proposal about school holidays and her requirements about the father’s attendance at courses, modifications to his home, and three occupational therapy visits.
On the topic of time Dr S said consideration could be given to the father’s proposal of an overnight being included on Wednesdays at some point although December 2008 was probably a little soon and would be better deferred to mid-2009. It would give the father the opportunity to become more involved in the child’s transitions to and from his care and with his educational arrangements. As for the weekends, he supported the schedule proposed by the mother to which he added an extension of the weekend through until Monday mornings after the child is settled in school - perhaps after the July 2010 school holidays. As for school holidays, he considered the father’s proposal would involve too much back and forth between the households but he thought consideration needed to be given to the introduction of block time in school holidays prior to the child starting school [believed then to be 2010]. Once he is spending three overnights with his father a five day holiday block could be introduced and then a week at the beginning and end of the first Christmas vacation followed by half of the school holidays, subject to breaking down the long holiday period into two blocks for the next couple of years.
Dr S responded to questions by the mother who sought his views about several matters which is summarised by what follows:
(a)He agrees early intensive family-based treatment programs individualised to the child’s strengths and weaknesses are of substantial assistance in maximising autistic children’s potential development including cognition, communication, behaviour, relatedness, empathy and emotionality. There is no one best approach - as the diversity and different theoretical bases of the programs indicate - and even within the same program different clinicians individualize their approach to the child while maintaining a level of consistency with the direction of the program. He says this is encouraging since -
‘….it indicates that much of the micro-development of the children is positively responsive to the consistent approach of individual therapists and family members, even though there may be differences between the individual approaches. The reason I highlight this is that, as in this case, when children have two homes such as occurs after a divorce, provided the approaches are broadly similar in both homes and that each parent is consistent in their particular approach, there is nothing discernable to be lost by some differences between the homes.’
(b)He agrees parents benefit from support, education and training in practical skills but lest the question imply criticism of the father he emphasised that the child and his father seem to have a quality of communication comparable to what he observed of the mother and her family and, importantly, the child seemed to understand and anticipate non-verbal communication from his father in an appropriate and responsive way, suggesting he was reasonably attuned to his father with an acceptable level of communication.
(c)Asked about whether a high level of anxiety increased the sensory arousal of autistic children, Dr S thought this beyond doubt and he noted his report had indicated the child had manifested this. He had also noted in his report the mother’s inclination to blame sensory arousal and resulting behavioural changes on some lack of parenting ability by the father, whereas in his view there were probably other factors playing a more important part in it.
(d)As for whether it is necessary for the child’s carers to be fully aware of all calming strategies, he readily agrees; however, that does not mean everyone has to take the same approach, not the least because sensory arousal may manifest itself in different ways with different people and in different contexts - for example, staff in different aspects of a child’s program take different approaches because of the inherent differences in the nature and contingencies of the child’s arousal.
(e)As for whether the father needs to complete the Makaton signing and Hanen course before any overnight visits can be considered, Dr S was of the view that he should complete the courses as soon as possible but that is not the threshold issue for the introduction of overnight since they are directed to overall communication skills which are not intrinsically related to sleep/night issues.
In June 2008 the mother consulted Dr T, a clinical psychologist who conducts a practice in Sydney. The mother has considerable confidence in her expertise with children with autism. The mother had given Dr T copies of reports from K Diagnostic and a sensory assessment by a paediatric occupational therapist and Dr T saw the child with his mother in June. She produced a report after that visit. She again saw the child with his mother, this time also with Mr W, on 29 November. Altogether she had spent 2½ hours in the two consultations. No arrangement has been made for any further consultations. In early December the ICL provided Dr T with copies of Dr S’s reports and she responded by email to the ICL on 3 December [exhibit 4].
In her June report Dr T refers to the mother making the initial appointment to gain a further understanding of the child’s current developmental needs and to seek her advice concerning the ‘joint custody arrangements’ and in particular the child’s ability to shift between environments and from one parent to another. The child being a child who has been linked to an array of support programs and assistance from one discipline or another, there can be little doubt that the consultation arose from the mother’s disagreement with the opinions Dr S had expressed in his report and her view that Dr S lacks sufficient expertise about children with autism, which I shall return to shortly.
In any event Dr T noted the child to be progressing well, she gave a summary account of the mother’s report of signs of anxiety and things that made him anxious or caused him distress, she noted the mother to deal effectively with his displays of frustration, and she concluded that the child has a good relationship with his mother whom she described as quiet and calm, gentle and patient in her approach. Dr T said it is very important for the child developmentally that he experience consistency and stability and he follows a known routine; as his social awareness increases, like many individuals on the spectrum, he might also experience higher levels of anxiety. As research suggests both stress and anxiety appear to increase autistic traits, a stable home environment with as little stress as possible would be favourable and this includes less change. She concluded ‘shorter periods of access with his father, [Mr Fleming], may be desirable at this stage’.
In her later email to the ICL she noted, amongst other things, a marked difference in the child at the November consultation and significant regression from the initial visit. She observed the mother and Mr W to have responded appropriately throughout. She explored possible reasons for such a marked change – including financial stress related by Mr W and other changes that can be unsettling for all children, such as his brother L being more advanced and ‘creating a degree of chaos now that wasn’t there before’ and that he may sense difference in his mother by reason of her being in an advanced stage of pregnancy. She re-iterated the importance of introducing change to the child slowly and because of the increased stress in the family change be minimised until there is an improvement in the child’s condition. The mother had told her the child may be going to F School 5 days a week in 2009 and she thought this would be a good move which would increase the stability and routine in the child’s life but it would also be a major change. After some other remarks she concluded by saying this is a complex case with no straightforward easy solutions, particularly as the child appears to have regressed a lot in the previous few months. She did not at any time see the father and so it comes as no surprise that she would defer to Dr S’s opinions while emphasising nonetheless the vulnerability of children like the child to change in routine. Indeed, his vulnerability is a common theme in much of what is said by those involved in his care and it is plainly important in considering any regime for his care between his parents.
When Dr S and Dr T gave further evidence at the hearing they both had the additional information that the child was to start school at F School this year. While this induced Dr S’s to rearrange the schedule of timing and extension of time with his father considered earlier in his addendum, he maintained the view that overnight should be introduced and extended at weekends and during holiday periods in the fullness of time. As for the detail, he considered the proposal drafted by the ICL [exhibit 8] to be appropriate to the circumstances as he saw them. I shall come to that and the parents’ views about it shortly.
Ultimately there is no tension to be resolved between the evidence of Dr S and Dr T because on the core issues there is no conflict of substance. Dr T agreed she was not in a position to prescribe specific arrangements for this family, she readily volunteered that Dr S had done a more thorough assessment, and she acknowledged she had not done the assessment he had undertaken. Asked about overnight visits during the school week she said she had found with a lot of children the less disruption and more routine the better and on the question of how long it would take for the child to adapt to his new school environment, she thought it difficult to say - it might be 2 or 3 weeks but it could be 6 or 7 weeks or even a couple of months before he settled into the new routine. What is clear from her evidence – and from all involved – there is a need to introduce change at a suitably slow pace and it can be supported by strategies that prepare the child for what is to follow.
Finally, it was mentioned earlier that the mother does not embrace Dr S’s evidence and it was evident from her cross-examination that she considers him to be short on the professional training and experience that would permit his opinions about an autistic child to hold sway. But that is rejected. There was nothing about his qualifications or experience, either in his academic history or his clinical practice, to support that conclusion and this became more apparent as he relayed the detail of his professional background. It is accepted he is appropriately qualified to assess and express opinions on the very matters he was asked to address, including the impact of the child’s autism and developmental delay, and it is also accepted that he approached his task in a professional and comprehensive way. None of this could attract legitimate criticism and therefore it will be appropriate to give weight to his assessments and opinions, whether already mentioned or to follow.

Proposals

The proposals put forward in the end by the parents and by the ICL reveal several areas of disagreement summarised below and a summary of their positions will follow:
(i)the timing of the introduction of overnight stays and the rate of progress of extensions;
(ii)whether weekend time should be extended through to Monday morning or end on Sunday evening;
(iii)whether the Wednesday mid-week visit would be suspended through to 1 June 2009 or not at all;
(iv)     if and when Wednesday becomes overnight;
(v)      the venue for changeover;
(vi)whether or not there should be any restriction on the father taking video pictures of events on changeover;
(vii)     whether visits on Father’s Day should end at 2pm or 5pm; and
(viii)    time during school holidays.

(i)& (ii) introduction and extension of overnight

What follows is the best I can do to summarise the positions:
(i)1 May 2009 is the start proposed by the ICL - in the first instance to commence Saturday morning and conclude Sunday morning every second weekend. The father agrees. The mother would delay it until 1 September with a return Sunday morning at 10am rather than 9am.
(ii)1 September 2009 is the start proposed by the ICL for an extension of the alternate weekends to 4pm Sunday return. The father agrees. The mother would delay that until 1 February 2010 – or 5 months after the start of overnight visits - and she proposes a 7pm rather than 4pm return.
(iii)1 March 2010 would see the alternate weekend time begin after school Friday and conclude 5pm Sunday. The father agrees subject to a 7pm return. The mother would not begin the Friday after school arrangement until 1 July 2010.
(iv)1 October 2010 is the latest the ICL proposes for an extension of those weekends to Monday morning by a return to school. The father nominates 1 August 2010. The mother says never.

(iii) suspension or not of Wednesdays

The mother seeks suspension of the Wednesday visits until 1 June this year and after it is re-introduced she contemplates the child being returned home bathed and fed. The father does not agree to any suspension and he would retain the return at 7pm. The ICL does not support any suspension; an earlier return might alleviate some of the issues the mother says she deals with on Wednesday evenings.

(iv) Wednesdays overnight

The father proposes from 1 February 2010 the Wednesday visits become overnight. The mother disagrees with any overnight stays during a school week at any time.

(v) changeover venue

The father maintains it should be at McDonalds if not at school.
The ICL proposes changeover occur whenever possible at pre-school or school and if this is not possible then Mr W or the mother [if he is not available] deliver the child to the father’s residence at the start of visits and the father return him to the mother’s residence at the end.
The mother proposes that on Wednesdays, when that is in operation, the child be collected from school by the father and returned to her residence and on weekends the father collect him from her residence and Mr W collect him from the father’s residence.

(vi) video of changeover

The ICL proposes the father not video record the changeovers. The father on the other hand contends this is necessary to protect himself from false accusations which have had significant repercussions for him in the past. The mother expresses no position one way or the other.

(vii) duration of Father’s Day

The father proposes a full day with a return at 5pm, the ICL agrees; the mother asks for a 2pm return.

(viii) holiday time

The ICL’s proposal starts time during school holidays in October 2010 and failing agreement from 9am Monday to 5pm Friday during the first week; in December 2010 for 7 days and failing agreement from 9am 2 January to 5pm 8 January 2011; in April 2011 for 7 days and failing agreement from 9am Monday to 5pm Sunday in the first week; and commencing July 2011 for one half of all school holiday periods and failing agreement for the first half in even numbered years and the second half in odd numbered years. As will be apparent, this delays the introduction of block periods for another 20 months or so and it contemplates some block periods during the holidays to follow until the end of term 2 in 2011, about 2½ years from now, from which time it will be shared equally.
The father agrees, subject to it being the second week in the October 2010 and reversing the even/odd years from July 2011 when equal shared time is introduced.
The mother proposes no block period during school holidays until the end of 2011 when there would be a gradual increase in the time.
·3 days during April 2012
·5 days during June/July 2012
·5 days during October 2012
·7 days during December 2012
then commencing 1 January 2013 there be half of all school holidays. Before that the time would be each Monday and Wednesday from 9am to 7pm each week of the holiday period.

Objects, principles

Against that background, it is obligatory to have regard to the objects and underlying principles which oversight the assessment of the child’s best interests. The objects are about meeting children’s best interests by ensuring they have the benefit of both parents having a meaningful involvement in their lives to the extent that is consistent with their best interests; by protecting children from exposure to physical or psychological harm; by ensuring they receive adequate and proper parenting to help them achieve their potential; and by ensuring parents fulfil their duties and meet their responsibilities to their children’s care, welfare and development [s60B(1)]. The underlying principles, except when it would be contrary to the child’s best interests, acknowledge the child’s right to know and be cared for by both parents; a right to spend time on a regular basis and communicate regularly with both parents and significant others; a right to enjoy their culture; and that parents jointly share parental duties and responsibilities and should agree about future parenting [s60B(2)].

Best interests

The assessments to follow are what the weight of the evidence demonstrates about the primary and additional considerations which the Act requires be taken into account in deciding what is in a child’s best interests.

primary consideration

(a) the benefit to the child of having a meaningful relationship with both of the child’s parents

As Dr S points out, generally speaking children who can maintain a satisfactory relationship with both parents are less likely to experience emotional, behavioural, education and relationship difficulties in the future. That applies no less here.

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

Children can be harmed by exposure to abuse and they ought to be protected from it. To some extent court orders can attempt to put in place arrangements that will minimise the opportunity for exposure to it – by minimising the times the child’s care is changed or putting structures around the changeover venue for example – but ultimately parents parent children, not court orders, which are of limited utility if a parent is determined to agitate their antipathy rather than protect their children from the harm it can generate. That also applies no less here.

additional considerations

child’s views

This is not relevant and no one suggests it is. However, it is convenient point to note some of Dr S’s observations about the child’s emotional and behavioural state:
‘he shows a characteristic pattern of developmental, social and communication delays, although his degree of social delay is possibly not as marked as in the other two domains because he shows some emotional reactivity, a capacity for affection, and a reasonable degree of eye contact which is proportional to the strength of his relationships.
….
He is currently engaged with services which should ensure that the continuity of this program is maintained into adulthood. It remains to be seen whether [the child] will be able to lead an independent and self-sufficient life. At this point this seems unlikely. The more likely outcome would be that even in adulthood he will require support to be able to live at home, and then will need to live in supported accommodation. At this point it is also unlikely that he will be able to work in anything but a highly supervised setting. I would emphasise however that the strongest predictor of his outcome will be his communication skills, which are poor at the moment but his level of social and emotional communication is not so poor, which probably is a more positive prognostic factor.
…
Autism is a difficult condition to manage. It is a chronic condition associated with significant developmental delay. There is no known cause or cure, although there is good evidence that children maximise their potential with a comprehensive and consistent rehabilitative and educational program that is introduced early in childhood and continues throughout the childhood and adolescent years. [The child’s] current program is appropriate to his needs at the moment and appropriate plans are in place for the future. This program requires the consistent support and participation of both parents.’
Without question, the fact that the child has developmental delay and autism has important implications for the assessment of his arrangements as between his parents. The former means that his mental and emotional development is behind his chronological age and so his attachments and tolerance of separations more closely resembles that of a younger child. The latter means he has difficulty in managing change in routine and so it has to be introduced more slowly than might otherwise be contemplated and he has to be prepared for it.
It is recognised that overnight stays with his father will mean separation from his mother and it is also recognised that he will be required to adjust to inevitably different approaches to his day to day routine in the two households. Also, as Dr S noted, as the visits to his father become longer there will be elements of his day to day care which are known to trouble him that will be introduced while in his father’s household.

nature of the child’s relationships

The child has a range of relationships with those around him, not only with his parents but with half siblings in both of his parents’ households as well as with his parents’ partners.
In Dr S’s assessment he has quite good relationships with the key adults in his life – his parents and Mr W. His primary attachment is to his mother and he noted him to be demonstrably more affectionate with her than he is with Mr W and his father, probably understandably given the time he spends with them.

willingness and ability of parents to facilitate and encourage a close and continuing relationship between the child and the other parent – participation in decision making, communication and spending time with the child

There is no avoiding the observation that the mother does not seem to be willing to encourage and support the child’s relationship with his father. Historically from the start she attempted to marginalise him and control his role in their son’s life and before and after the diagnosis of autism she has maintained criticisms about his level of interest, his fundamental competence as a parent, and his supposed self interest and insensitivity. On the other hand, there is no similar criticism from anyone who has had contact with the father, including those who have been engaged with the family over the past two years or from the court appointed expert who not only interviewed and observed and reviewed material but also spoke to a number of the professionals involved in the child’s care. It suggests a worrying shortcoming in the mother’s ability to recognise his important role in his son’s life and upbringing.
There is little doubt she would see this assessment as wrong and of course she could point to what she repeated several times at the hearing; namely, she is willing to communicate with the father, she is willing to discuss issues with him, she would have joint consultations with the professionals with him, and as far as she is concerned they should be sitting there together making decisions on the advice received - but the father has continually refused to do so. Yet this does not become more meritorious by repetition since it fails to acknowledge what is plainly apparent from any objective viewpoint. First, there is a history behind his refusal and whether the father is right or wrong about what happened on disputed occasions he has a perspective quite contrary to hers and implying his refusal is unreasonable fails to take that into account. Secondly and significantly, the mother seems not to appreciate either the tone she uses to speak to him or about him or the content of some of the things she says about him. Her tone is invariably dismissive and openly scornful and some of the things she says can only be experienced as insulting and demeaning [her suggestion that he is only motivated by the impact on child support obligations is but one example]. If the father’s refusal to engage in dialogue is the upshot of being on the receiving end of scorn and insult, it can hardly legitimately be open to use his refusal as a lever for further criticism. On the contrary, it is understandable he might wonder how he could be heard or have his point of view taken into consideration through meaningful dialogue while ever there is no change in attitude from the mother. If she is genuine about the offer of co-operation, some reflection on the contribution she makes to the state of things would seem to be necessary. Dr S referred to this as the mother’s underlying negativity and subjectivity which needs to be taken into account in any assessment of the father’s capacity to properly care for the child and that is accepted.
As for the father, he is not openly critical of the mother and his presentation is quieter and more subdued. Probably sensibly, he has stepped back from the process that has engaged with the child’s autism and developmental delay so as to avoid distractions from conflict. But absent a willingness to understand or appreciate his motive, it has possibly laid the groundwork for further criticism of his supposed level of interest and it also seems to have created the impression that the mother is more entitled than he is to access information or advice from anyone involved in their son’s treatment. This wrong underlying assumption is reflected in interim orders about the mother providing written ‘authorities’ for the father to receive reports and information and so on, when in fact there has been no sole parental responsibility conferred on her or any taken from the father. The orders now proposed contemplate those orders continuing, and yet there is no dispute about equal shared parental responsibility being maintained. That said, there is no doubt the father holds strong feelings – his insistence on taking the video camera and the witness to changeovers attest to it – but there is nothing indicating he lacks appreciation of the mother’s important role in the child’s life. He has not sought to challenge that; he merely seeks to put in place such circumstances as would allow him properly to play his part.

parents’ attitude to the child and to parental responsibilities

Without doubt the mother is diligent and committed in her parental responsibilities, she has been vigilant in her observations of the child’s development and progress, she has acted appropriately to seek professional assistance, and she has conscientiously followed up and acted upon recommendations made by an array of health professionals since the diagnosis of autism and developmental delay. She has familiarised herself with the relevant literature and research in the field. As the parent with primary responsibility for the child, she obviously confronts difficulties continually including challenging behaviour that must require her to call upon reserves of patience and flexibility. The difficulty of her task is recognised in the context of her responsibility now for three young children while Mr W is busy with two jobs. Yet for all that she does have a very negative attitude towards the father’s role as a parent which is an unfortunate shortcoming in her own parental responsibilities. She did marginalise him in that role from the time of the child’s birth and, while limits were plainly necessary given the child’s very young age, the restrictive regime she implemented and maintained until some inroad was made by court orders has not been shown to be justified over some more suitable arrangement.
It is accepted that the father has been motivated to play his part as a parent. He did so for a considerable time after separation in circumstances many parents would have objected to, as Dr S noted. Dr S assessed him as having an appropriate and integrated view of parenting and that is accepted. Nothing about decisions he has taken, for example to take a back seat with treating professionals, can be linked to any lack of interest and nothing about his actions can be linked to improper motive, such as child support considerations as the mother alleges. He has amply demonstrated his commitment to his son and the weight of the evidence suggests he does have a proper attitude to his parental responsibilities.
This is a timely point to note the father’s advice in open court at the end of the hearing that he would now be seeing the child every second Saturday to coincide with the time he has his daughter E in his care, a statement the mother met with the amused observation that they had spent the past 2½ years in court because he had been trying to get more contact with the child. Coming when it did, the father did not explain what was behind his decision, but it does not diminish in any way the assessment that he is a committed parent or detract from other assessments about him, and it would be wrong to see it in isolation rather than its context; that is to say, he would have been entitled to believe that decisions about future care would be made soon.

capacity parents to meet the child’s needs

Dr S described the mother as a highly motivated and conscientious parent who appears to have scrupulously followed the recommendations of professionals, which is accepted. The limitation on her capacity to meet the child’s needs arises from her attitude to the father and her lack of appreciation of the importance of his role as a parent which does not need repeating.
Contrary to the mother’s view of it, Dr S saw no evidence of the father being insensitive to the child’s needs. On the contrary, he observed him to relate to the child in a warm and patient way and that the child seemed used to this level of responsiveness from his father. He assessed the father to be an effective communicator, attuned to his son, and he observed him facilitate his play and inquisitiveness in much the same way as the mother had. It did not strike Dr S as rehearsed or lacking spontaneity and the child did not respond as if it were unexpected or new behaviour from his father. Those assessments are accepted.

likely effect of changes in the child’s circumstances

The orders for the child to spend regular day time in his father’s care have been in place now for over 2½ years. The move to overnight time will certainly bring about a change and the implementation of either parent’s plan for the future will see further change into the future, albeit at quite different rates.
Clearly the child does have difficulty adapting to change and it is equally clear that as a child with autism he is vulnerable to change which has to be introduced in a timely way and with appropriate care and preparation. I am satisfied his father is aware of this vulnerability and will do what he can to ease him through any transitions. Some of the orders agreed are designed to support this - and co-operative, respectful communication between his parents would go a long way to providing the sort of consistency the experts say he needs. As Dr S observes, the child is not entirely inflexible since he operates in a number of different contexts and he will continue to have elements of his programs delivered in different settings.
It is recognised by everybody that starting school this year will be a big change for him and therefore the introduction of overnight should be delayed; the question is for what period. Another consideration is that being developmentally younger than his chronological age, the child is likely to feel the absence of his mother as his primary attachment figure and he will also need to adjust to the absence of others in his family in his mother’s household. These are all matters to be weighed in the balance.

practical difficulty and expense of a child spending time with and communicating with a parent – any substantial affect the child’s right to regular contact and communication

There is no particular practical difficulty or expense in the child spending time with and communicating with his father. The difficulties arise more from the state of the relationship between his parents and poor communication played out in front of him when his care is changed from one household to the other.

family violence and any family violence orders

There has been an AVO but I am satisfied this is of no enduring relevance.

whether preferable to make the order least likely to lead to the institution of further proceedings

At one point in her case the mother put forward a proposal for a review after the child has settled into his school. From one perspective this might be seen as having some merit, particularly having regard to the challenge change represents. On the other hand, this is a child who has been exposed to unresolved conflict about his arrangements for a long time and he can be no less affected by it than any other child; therefore, in his interests his arrangements need to be resolved. In the end, present attitudes are unlikely to change and on balance further delay is likely to be the only result of deferring decisions. In my opinion the preferable course is to design progressive arrangements for the future and like any other case if a change of circumstances justify it sufficiently they can be revisited.

Parental responsibility

The Act imposes an obligation to apply a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility [s 61DA(1)] which is about decision making, not time. It does not apply where there are reasonable grounds to believe a parent has engaged in child abuse or family violence [s 61DA(2)] and it may be rebutted if the evidence establishes equal shared parental responsibility would not be in the best interests of the child [s 61DA(4)].
In this case there is no opposition to equal shared parental responsibility – although many of the underlying conditions thought appropriate to it are absent and there is a very problematic issue about communication between the parents. Despite this, to provide for sole parental responsibility would further marginalise the father from participating in any major decision required for the child’s upbringing and it would be unacceptable and inconsistent with the child’s interests overall to exclude him. The orders will provide for equal shared parental responsibility as proposed.

Time

If the parenting order provides, or is to provide, for equal shared parental responsibility there is an obligation to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend equal time with each parent or, if not, substantial and significant time with each parent. Consideration of equal time can be disposed of fairly swiftly since no one is proposing it and nor would it be in this child’s interests at this stage of his development. As for substantial and significant time, that is defined in a way that could be met by some of the proposals, at least in the longer term; that is to say, ‘substantial and significant time’ requires that the child spend days that fall on weekends and holidays and those that do not and also allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child and also allows the child to be involved in occasions and events of special significance to the parent [s65DAA(3)].

Time - conclusions

Bearing in mind the importance of gradual introduction of change, the child’s vulnerability to it, and the significant changes he is undergoing presently, my conclusions on the areas of disagreement outlined earlier are as follows:
(a)The mother argues that the suspension of the Wednesday is mostly to give the child an opportunity to settle into the new school routine. Yet while the need for him to settle is recognised, the orders will not support suspension. The child has been having time with his father on Wednesdays for a long time now, there is an established routine in place, and suspension would represent a further change for him. The proposal is not supported by the opinion of Dr S who sees advantages for the child in continuing to have contact with his father each week. As for the time that mid-week visit concludes, the ICL’s proposal for an earlier return came out of consideration for the mother’s evidence about getting him settled but she proposes retaining a 7pm return [albeit when it resumes] so it seems not to be an issue for her. Certainly he should be bathed and fed by that time.
(b)As for overnight visits, it is recognised that the mother has never been enthusiastic about overnight for the child, at least for the foreseeable future. She sees herself as being more than reasonable in ‘coming to the party’ by introducing overnight visits in September and she sees this six month ‘leeway’ as necessary to allow the child to get used to school and then introduce it after the Wednesday suspension has been lifted [on her proposal about that at least].
(c)The child’s vulnerability to change and the new routine of school are weighty considerations along with the mother’s resistance to the introduction of overnight before September. But there are other considerations which point to it being appropriate to commence overnight stays in May as proposed by the father. They include the long period of time the child has been spending with his father in day visits to this point, the positive assessments made of his father’s capacity to provide for his needs and his ability to meet his parental responsibilities, a three month period is supported by Dr S and not excluded by Dr T, and three months is not a demonstrably short period.
(d)As for the rate of increase in the weekend stays, initially extending the Sunday morning return to Sunday afternoon and then starting it earlier on Friday afternoons, the orders to be made introduce what I regard as a suitably measured regime over a period that should give the child the opportunity to adjust to changes and settle into a routine but also give him the advantages that flow from his father’s involvement in his day to day upbringing. Those orders also adopt the proposal for a Monday morning return to school in due course. While the mother opposes it, there are advantages for the child not being exposed to the sort of acrimony at changeover that has occurred in the past and a Monday morning return will give him that as well as a better chance to take advantage of what his father is able to offer him on those extended weekends.
(e)As for Wednesdays overnight, in my view there is merit in the mother’s position on this. If the Wednesday overnight is introduced as proposed one only has to go through any fortnight of school terms and see where the child will be going to bed for the night to realise the to and fro involved for him. It is preferable that he have the longer weekend time – Friday after school to Monday before school – with his father. However, the Wednesday afternoon visits that have been part of his routine for some time now will continue and in my assessment should continue into the future. The orders as drafted achieve what I regard as appropriate.
(f)As for school holidays, given the schedule of overnight periods to be introduced there is no sound reason to delay introducing blocks of time during school holidays which can be increased over time until they are spent equally between both of his parents. Again, the orders as drafted achieve an appropriate rate of progress to that end result.
(g)On the topic of transport arrangements, the father should take the child to and from school whenever the orders provide for that timing. That may mean some impact on the arrangements with the bus service provided between the mother’s home and the school, but nothing has been presented to put this beyond the possible into the probable and therefore it is not a consideration that could rank in priority over the benefit for the child of having his father take that responsibility and participate in his school routine to the extent it allows and become a familiar figure at the school. Such an arrangement certainly has the indisputable benefit of avoiding any contact between the parents when his care is changed from one to the other, consistent with Dr S’s view of it.
(h)As for other times when a school changeover is not possible, the mother’s proposal has more merit in my view. The father has put a strong case for the McDonalds venue and the advantages he outlines are not without merit and it is possible a public place might operate as some kind of inhibitor on the behaviour that has been described in the evidence. But in the final analysis the advantages to it being their respective homes when it cannot be the school tips the balance in that direction; that is to say, the child can go directly into the parent’s home when his care is changed over rather than have the journey punctuated by time at a playground before he is transferred between cars – it also eradicates the difficulty his mother identifies when he sees McDonalds in passing. I also see merit in the mother’s proposal for the father to collect the child from her residence at the beginning of the times specified and Mr W then collect him from the father’s residence rather than responsibilities being the other way around.
(i)As for the return time on Father’s Day, Mr W’s position as an important figure in the child’s life is not questioned but it is appropriate that the child spend the day with his father during the times indicated.
(j)As for any prohibition on the father taking a video camera to changeover, of course it would be preferable if he did not do so and even more preferable that the circumstances on those occasions were not such as to generate any dispute at all. But that will be for the parents to resolve and no court orders will be made about it on way or the other.
(k)Finally, it remains to say something about the special occasions as provided in the orders proposed by the ICL which did not receive any real attention at the time. Father’s Day and Mother’s Day has been mentioned. But the orders contemplate a day in each parent’s care from noon Christmas Eve to noon Boxing Day, to be alternated between even and odd numbered years. However, from the end of term 2 in 2011 the school holidays will be alternated between first and second half and unless there is some variation to that then the whole of the Christmas period without interruption will be spent with one parent each year. That may be the better course so as to avoid changeovers at this time. Until then, the arrangement for splitting that time between the parents is adopted. Of course it is always open to the parents to re-arrange this or any other time as they may agree. As for the child’s birthday, the ICL’s proposed orders provide for three hours if it falls on a weekend although the workings of that were not elaborated. In my view, given the time schedule already set in place, his birthday should be with the parent in whose care he will be on that day so it is uninterrupted. The chances are – his birthday is on 6 July - that will alternate in due course and in the meantime there can be a celebration with the other parent later or earlier.

Form of orders

The orders as drafted set the regime for the child’s time which is assessed to be in his best interests when all considerations are weighed. Some of the orders agreed have been re-drafted to express them in mutual terms, which is more appropriate to the particular circumstances. Otherwise they are self-explanatory and need no further elaboration.

I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore

Associate:

Date:

[2009] FamCA 123

25 February 2009

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