Goyal and Goyal

[2019] FamCA 454

FAMILY COURT OF AUSTRALIA

GOYAL & GOYAL [2019] FamCA 454

FAMILY LAW – CHILDREN – Child in an equal time arrangement – Whether the child’s time with the mother ought be reduced – Where there is no need to protect the child from abuse, neglect or family violence – Where both parties found to offer high quality but different parenting styles – Where parties have a positive co-parenting relationship.

Family Law Act 1975 (Cth) s 60CC(2), (3)

Goode & Goode [2006] FLC 39-286

APPLICANT: Mr Goyal

RESPONDENT: Ms Goyal

INDEPENDENT CHILDREN’S LAWYER: JLM Family Lawyers Pty Ltd

FILE NUMBER: SYC 6633 of 2017

DATE DELIVERED: 18 July 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Henderson J

HEARING DATE: 13, 14, 16 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Harper

SOLICITOR FOR THE APPLICANT: O'Sullivan Legal

COUNSEL FOR THE RESPONDENT: Self-Represented Litigant

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Reheby

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: JLM Family Lawyers Pty Ltd

Orders

1. The parents have equal shared parental responsibility for the child X born … 2009.

2. The child live with the parents in a week-about arrangement with changeover to occur after school each Friday or as otherwise agreed by the parents by text message.

3. The child spend additional time with the parents as follows:

   (a)       With the father on Father’s Day from 9am to 6pm and with the mother on Mother’s Day from 9am to 6pm;

   (b)       On the child’s birthday, the parenting with whom the child is not living at the time will spend time with him from after school until 8pm that night;

   (c)       The parties to equally share the long term school holidays, being for a period of two weeks each, with the mother spending the first half in 2020 and the father the first half in 2021, and thereafter one‑half of the long term school holidays. Otherwise all school term holidays will be equally shared between the parents;

   (d)       At all other times as agreed to by the parents by way of text message.

4. That changeover shall occur at school on a school day or otherwise by way of the mother collecting the child from the father’s residence at the commencement of her time pursuant to these Orders and the father shall collect the child from the mother’s residence at the commencement of his time pursuant to these Orders unless otherwise agreed to by the parties by text message.

5. Whenever the child is living or otherwise spending time with the other parent, either parent is to be entitled to communicate with the child by telephone or any form of communication including electronic communication at any time by making a request to the other parent and at any other time upon request being made by the child.

6. Within 7 days of these Orders, each parent shall advise the other parent and keep the other parent advised of their current address and each parent shall advise the other parent of any changes to those details within 48 hours of any change to those details occurring.

7. That unless otherwise agreed to by the parties in writing, the parents shall ensure that the child attends only the following medical practitioners (or a medical practitioner referred to by them or their current practice should they become unavailable) and that the parents shall notify each other of any medical appointments made for the child as soon as such appointment is made including details of why the appointment has been made:

   (a)       A general practitioners practising at Suburb N Medical Centre;

   (b)       Dr F, Consultant Paediatrician

   And the parents shall implement all recommendations and referrals made by those medical practitioners and give all authorities necessary for both parents to be able to speak with and receive any materials normally available to parents from those practitioners.

8. That within 28 days of the date of these Orders, the parents are to make an appointment for the child with … in order to access an accredited specialist for the purposes of the child undertaking an Autism Spectrum Order assessment and the parents shall have the results returned to the child’s paediatrician for review and further referrals if necessary and provide a copy for the child’s school counsellor.

9. The parents shall ensure that the other parent is kept informed of any serious or emergency medical treatment or hospitalisation required for the child while in their care and any medication prescribed for the child by sending a text message to the other parent as soon as practicable and both parents are at liberty to attend upon such emergency location.

10. That both parents will do all things necessary to ensure that any school the child attends is authorised to provide both parents with all information and material usually available to the parents.

11. That both parents are at liberty to attend all school functions and extracurricular activities that the child may be involved in from time to time that is normally open to parents.

12. That the parents are restrained from denigrating the other parent or a member of the child’s family in the presence or hearing of the child and that the parents will do all things necessary to ensure that the child is not in the presence of any third party who seeks to denigrate the child’s other parent or a member of the child’s family.

13. Both parents may, by giving the other 28 days’ notice in writing of their intention to travel, take the child to an overseas country, provided such country is a member of the Hague Convention.

14. In order for the travel to proceed, the parent intending to travel must provide to the other parent, at least 14 days prior to departure, a copy of the itinerary, air flight return tickets, contact details for the child while the child is overseas and the passport which is currently held by the father is to be forwarded to the mother no later than 14 days from the intended travel so that the necessary arrangements can be made.

15. The parent with whom the child is travelling is to ensure the child speaks with the other parent at least once per day.

16. The father will not unreasonably withhold his consent for the mother to travel to India for the purposes of the child spending time with his maternal family.

17. In the event the father does not agree to the mother’s proposal to travel to India, the mother may contact my associate in writing to have an application for such travel listed before me as soon as is possible.

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

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

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6633 of 2017

Mr Goyal

Applicant

And

Ms Goyal

Respondent

REASONS FOR JUDGMENT

1. The matter of Goyal was a five day matter, relating to both parenting and property. The property proceedings also concerned the paternal grandparents.

2. Mr Harper of Counsel represented the applicant husband. The wife, Ms Goyal, was unrepresented. Ms Reheby of Counsel represented the Independent Children’s Lawyer and Mr Coleman SC represented the second respondent, the paternal grandfather.

3. To their credit, the parties resolved all property proceedings outstanding between them, which left for the Court the perhaps most important decision for the parents, being the parenting arrangements for their son, X, born in 2007, now 12 years of age.

4. Pursuant to Orders made by Justice Watts on 1 March 2018, X has lived with his parents in an equal time arrangement from Friday to Friday and they have shared parental responsibility. The father now seeks I vary those orders and that X spend five nights a fortnight with his mother, otherwise live with his father, and that he have sole parental responsibility.

5. Both the mother and the Independent Children’s Lawyer put forward a position that the current parenting arrangements for X ought to remain, namely equal time and equal shared parental responsibility.

6. It is trite to say that unless there is compelling evidence that the current parenting arrangements are not in the child’s best interests and/or are having a negative impact upon the child after a consideration of the facts and having regard to the matters under the Family Law Act 1975 (Cth) in particular sections 60CC(2) and (3), sufficient to satisfy me that I ought change the current arrangements my decision may be that I leave the current arrangements in place.

7. As their Honours said in the decision of Goode v Goode[1] at paragraph 72:

   [1]Goode & Goode [2006] FLC 39-286.

   In our view it can be fairly said that that there is a legislative intent evinced in favour of substantial involvement of both parents in the children’s lives, both as to the parental responsibility and as to time spent with the children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well-settled environment, instead of simply preserving it, unless there are protective or other significant best interest concerns with the child, the court must follow the structure of the act consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

8. This is the care arrangement X has been living in for the last 12 months.

9. Parenting orders always have as their paramount tenant the making of an order in a child’s best interests, which may not be what one or either parent wants. Such a decision requires the exercise of my discretion and applying the facts to the law to determine what order I should make in the child’s best interests.

10. It is clear from both parents’ evidence, the child’s school reports, X’s own reporting and that of his grandparents who filed affidavits in support of their son’s application, that, X is making pleasing progress and he reports he is in a stable and calm situation.

11. The evidence I read was as follows:

    a)For the father:

    i)His application filed 10 October 2017;

    ii)Affidavit of 14 December 2018;

    iii)Affidavits of both paternal grandparents, Ms B Goyal, the paternal grandmother, filed 17 December 2018, and Mr C Goyal, the paternal grandfather filed the same date;

    iv)I did not read matters relating to the property application;

    v)The grandparents were not cross‑examined; and

    vi)Case outline from the father’s lawyer.

    b)The report of Dr D dated 21 August 2018 marked Court exhibit 1.

    c)For the mother:

    i)Amended response filed 2 December 2018;

    ii)Affidavits of 11, 19 December 2018 and 7 May 2019;

    iii)Each party had exhibited to their affidavits and I read those exhibits; and

    iv)A case outline prepared when she was represented.

    d)For the Independent Children’s Lawyer:

    i)A case outline.

    e)The mother filed two additional exhibits, being:

    i)Confirmation of her attendance and completion of a number of courses, with U Group, O Group, including Circle of Security, as had been recommended;

    ii)A letter she wrote to the Family Court in 2017 when these proceedings were first commenced by the father in relation to parenting and property. The wife was overseas at that time and was most concerned she had no knowledge the proceedings had been commenced;

    iii)Letters to and from psychologists concerning her lack of awareness about of her son’s various attendances at psychologists and the like;

    iv)Requests by her to take X to India to meet his maternal family;

    v)Correspondence and notes from her psychologists;

    vi)Letters about the ill‑health of her parents, which is accepted;

    vii)A report from one of her psychologists, Ms E; and

    viii)Ultimately this report was of little assistance to me in terms of the veracity of the assertions/opinions/recommendations made by Ms E, as her knowledge of the parties’ relationship, the marriage, the care of the child etc was only informed from the mother. However, I am satisfied the mother has been most assiduous in obtaining assistance to enable her to deal with the difficulties she faces living in a foreign country and parenting her son solely.

12. The father, mother and Dr D were all cross-examined.

Chronology

1. The father was born in 1975 and the mother in 1977 in India.

2. The marriage was arranged by their parents in 2002.

3. 19 November 2003, the mother came to Australia and the parties commenced cohabitation.

4. 2003, the father is working for Company S.

5. 2004, the parties marry.

6. Early 2003, the mother commences working with Company G.

7. April 2007, the mother commences maternity leave.

8. 2005, the parties purchase a property at Suburb R.

9. 2007, X is born.

10. 2008, the paternal grandparents commenced cohabitation with the parties in Australia and assist in the care of the child.

11. Mid 2008, the parties sell their property at Suburb R, a business is purchased the mother works in the business and works part-time.

12. 2009, contracts entered into to purchase the property Suburb N with substantial assistance from the husband’s parents.

13. The parties live in the Suburb N from July 2010.

14. 24 April 2017, the parties separated under the one roof.

15. March 2018, the mother leaves the former matrimonial home.

16. August 2017, X is expressing suicidal ideas at school and the school raises concerns.

17. Father files proceedings in 10 October 2017 in the Family Court whilst the mother is overseas in India.

18. 21 March 2018, interim hearing before Justice Watts who makes an order mother move out of the home and the child commence a week about living arrangement with his parents.

19. 22 May 28, interviews with Dr D.

20. 21 August 2018, expert’s report of Dr D is released cohabitation.

Oral evidence

1. Dr D’s report was the seminal reason, together with the father’s position concerning the mother’s aberrant behaviour, as to why time ought to be changed from equal time, as it has been since March 2018 to a lesser period of time with the mother and that parental responsibility reside with him solely.

2. Dr D was highly critical of the mother, to put it mildly. He described her, at paragraph 6, as “requiring persistent direction to maintain a coherent narrative thread, while relating her accounts, she avoided answering questions directly, introduced tangential material, went off topic, tended to change the subject, reacted defensively and became strident, maintained an adamant tone, she contradicted herself at times.”

3. At paragraph 13, she was critically questioned by Dr D concerning several inappropriate parenting practices for a child of X’s age:

   a)Co‑sleeping – however, both parents were co‑sleeping with their son at this time, each say it has now ceased;

   b)Feeding X by hand – something that was noted at the school on one occasion. The mother said she had ceased that practice and there is no evidence other than this occurred one occasion; and

   c)Calling the police to intervene on one occasion when she could not control X, having blown a raspberry on his stomach and woken him up with a start. The mother says he became controllable. This was a justified criticism as the mother could not explain to Dr D what she believed the police would do to help her with her then 10 year old son. However, this event occurred at the former matrimonial post separation and whilst the parents were separated under the one roof. The father and his parents were also present.

4. Dr D was concerned, at paragraph 16, that Ms Goyal recruits outsiders to assist her in her position that the child ought continue to live in the current arrangement. He was most concerned that the mother had taken the child to a O Group to see a counsellor, Mr T, and told X to keep this secret from his father.

5. Dr D opined, at paragraph 17, that her behaviour when completing a questionnaire was most strange as follows:

   a)She interrupted staff on many occasions to ask questions such as how old is the child, what counts as naughty, seeking a level of precision unlikely to assist.

   b)Knocking on other practitioners’ doors in the same practice as Dr D, disturbing other people.

   c)Exiting the room.

   d)Totally focused on her needs in completing this assessment and this questionnaire and requiring constant redirection.

   e)She had caused some difficulty with Dr D’s receptionist prior to the interview, requesting certain material be provided and that her clinicians and psychologists are to be contacted.

6. This is in stark contrast, Dr D opined, to the father, whose pattern of responses at paragraph 25 were noted as structured, reasonably straightforward, a candid approach from an individual who believes they are functioning well and facing the usual life stressors. It was noted at paragraph 25 that the father said there was improvements in his relationship with his wife post‑separation as well as in X’s state of mind and mood, and that is a consistent theme in the hearing.

7. The parents made the fatal mistake of remaining together when their marriage was over and only physically separated in March 2018. There is no criticism of them. The wife had no income, no job, and had no support or resources to assist her in leaving the former matrimonial home where she, her son, her husband and his parents had lived since 2008. One can only imagine the tensions in that household and the consequences for the adults’ behaviour let alone a child’s behaviours.

8. X, himself, reports to Dr D in the family report at paragraph 35:

   [X] said that since his parents’ separation, his life had been calmer and he preferred seeing them separately. When asked for his preferences, [X] said he might stay with dad “because he allows me to play video games”. However, he made no adverse comment of either of his parents or their care of him. His one comment, justified, was that his mother had asked him to keep secret from his father that she had taken him to a counsellor. A complaint he made was his mother used “time out” too much.

9. Ms Goyal was left under no illusion during the hearing of the impropriety of asking X to keep a secret and agreed that this had been very poor conduct on her part. Over use of time out is hardly justification for a change of a parenting order.

10. Dr D could see no evidence of any dysfunction with the father. He noted, at paragraph 26, how well the parents sat together and their ability to cooperate, but that [Ms Goyal] was the parent who became heated during the interview and required continual firm direction to stay on topic. [Ms Goyal] said she was scared of him because he was yelling, a theme again that the mother raised in her oral evidence, yet it was [Ms Goyal] who was yelling and the irony of that was lost on her.

11. Dr D noted that X’s behaviour during the interviews. He displayed characteristics of extreme immaturity relative to his chronological age, yet his own general emotional wellbeing when he completed the questionnaire was unremarkable. His pattern of responses was consistent with someone likely to be suffering from an anxiety disorder of no particular dimension, and given the stresses of the family conflict from which X had been poorly insulated, his level of anxiety may not be considered unsurprising.

12. Dr D said that, at paragraph 41, that [X] had continued to be negatively impacted by his parent’s conflict, a situation made deliberately worse by [Ms Goyal]enlisting him to keep secrets from his father. This occurred on one occasion and is not a pattern of conduct the mother has engaged in.

1. “[X] was observed to exhibit a number of exceptionally immature behaviours during interview which appeared not so much mischievous in intent, as obstinate, but manipulative in a regressed fashion, and will likely be attributable at least in part to the family conflict and poor parenting practices, discouraging him from reaching age‑appropriate developmental milestones and increasing his dependence.” That may be an unfair comment as Dr D said, in oral evidence, that X was a unique child who displayed characteristics of Asperger’s.

2. His own psychiatrist, Dr J, most unfortunately and quite improperly from the Court’s point of view, suggested to the parents that their son needed an assessment for Asperger’s, ATD assessment, but they should hold off until after the Court proceedings as Dr J was concerned that any assessment of X not be used in the Court proceedings against either or for either parent.

3. That decision, by a psychiatrist, is not child‑focused, nor in X’s best interests and showed scant or little understanding by Dr J of how such important diagnosis are used by the Court, which is to assist in making an order in a child’s best interests.

4. Dr J’s misguided and rather ignorant position has resulted in not only his parents not having a proper assessment of whether X is on the autism spectrum, neither does the Court and neither did Dr D. Such a diagnosis may explain some of X’s very unusual characteristics and behaviours which, for his parents, has been a difficulty in parenting him all his life.

5. As Dr D noted in his report, upon interviewing X:

   He presented as exceptionally emotionally immature, at paragraph 33. He began his individual interview by repeatedly answering “moo” to questions. He responded to firm direction to cease. Nonetheless, his responses to questions showed little engagement with the important issues being discussed and involved inappropriate attempts at humour.

   He wore a sullen expression, speaking reluctantly, in a flat, almost sarcastic tone, and asking a couple of times, “Are we finished yet?”, fidgeting from the beginning, moving his foot incessantly, as the seriousness of the questions increased. He became more unrestrained, he rocked on his chair, placed his hands on the floor, circled them around, leaned over and eventually even crawled around on the floor. The only thing that [X] wants the judge to know about his mother, he would like less “time out”.

6. The mother does not use this technique any more as discipline.

7. X is clearly a child with particular and specific needs and his parents have done their very best, each of them, to address those needs throughout his life. It is grossly unfair to then single out one parent at one interview and seek to blame their functioning as the reason the child behaves in this fashion. X was observed to ignore his mother’s greeting, and he was with his grandparents at that time. Given the poor relationship between the mother and the grandparents, that may not be surprising.

8. Both parents have endeavoured to arrange proper age‑structured approaches for X to assist him. His current regime of extracurricular activity is over-burdensome. On Saturdays, he has three activities for two hours, each separated by an hour. This boy has one day a week off: a Sunday. He has two afternoons during school off: Monday and Tuesday. Otherwise, he is fully engaged and, for example, scouts until 9.30 on a Friday. The expectation of both his parents for this boy to be able to achieve his best at school and carry out these extracurricular activities and maintain his own growth, is unrealistic, and when he attends high school next year, these arrangements must change. This was a matter both parents took on board that their son is simply doing too much.

9. The paternal grandparents were interviewed by Dr D and showed a total lack of understanding of the mother’s position in this matter. The grandfather, at paragraph 30, was adamant he wanted his son and Ms Goyal to reunite and live with them together as a family. It is clear, from reading the mother’s affidavit and her oral evidence that one of the reasons she has behaved in a poor fashion in the past was that for her living in that family home was almost a torment. It was clear to me that the mother has, since the birth of X, fought valiantly to maintain her position as his mother. However, for her, it has been three adults against one.

10. The mother has had no resources, such as the father has had being the assistance of his parents, to help her to parent her son, a difficult child who requires better than average parenting. Fortunately, each of his parents give him better than average parenting.

11. Her evidence, orally to the Court, was that upon bringing him home when he was first born, the grandmother came into her room, unannounced, and argued with her about how she was breastfeeding the child. It was clear to me that from the best of intentions, the paternal grandparents believed they knew better than the mother. The grandmother’s own affidavit says the mother could not cook and so she assisted her. It is not surprising the mother felt marginalised as X’s mother.

12. The mother said she and her husband were very happy when they were first married, and that she wanted to be with him all the time. That difficulties arose when his parents came to live with them. The mother knew this would happen as the parents had previously visited. The mother wrote a letter of objection to their immigration to Australia to the Department of Immigration in which she said she believed this would have a detrimental effect on her marriage. The mother has been correct.

13. Whether the mother has overreacted to the grandparents or not is not the point; that is how she has felt and there is significant support for her position that she had to fight tooth and nail with the grandparents to assert her rights and carry out her obligations as a parent her child. The father had no such difficulty; they are his parents.

14. That this happened is clear from the grandparent’s own evidence. For Mr C Goyal to say that he wants the parents to reunite, that the mother should return to live with them indicates he has no respect or regard for Ms Goyal’s happiness, her needs, or the life that she wishes to lead. He confessed he did not know why she left in the first place. He and his wife are part of the reason she left in the first place. He said Ms Goyal shouted at everyone; I have no doubt that is correct. That is part of how the mother sought to maintain her parenting and control over the child and the household. This is how she sought to get her view across as she did with Dr D with whom she exhibited very similar behaviour.

15. Dr D, asked the paternal grandfather, “How do you think that would work, the mother returning when they have separated?” The grandfather shrugged, had little to say except to suggest [X] should live with them and then [Ms Goyal] should visit and could stay with them when she wanted to. This demonstrates not one iota of insight into the mother’s or even X’s needs.

16. It is clear the parental grandparents play a pivotal role in his care and always have. The grandmother helps him with his homework, they take him to and from school and his multitude of extracurricular activities. It is not something the father need be concerned about when going about his day to day work because his parents are there to help.

17. Not only do the grandparents take X to and from his extracurricular activities, Mr and Ms Goyal are able to speak to each other in such a courteous, polite way that if the mother cannot get him from scouts at a time or collect him she rings the father and he obliges. The mother relies on public transport, not having a car or a licence. The father has collected the child and delivered or returned him to his mother on several occasions. These parents have parented this child cooperatively since the orders of 1 March 2018 were put into place and they have made this arrangement work for their son and it is to their credit they have done this.

18. Dr D opined that the mother arrived 10 minutes late for the interview and was ill‑prepared for the assessment, lacking an accurate understanding of the relevant concepts such as “parental responsibility”, and was chaotic. That is not the woman who came to Court to present her case on her own. The mother was well organised, structured, coherent, clear in what she wanted, willing to make concessions when required, courteous, polite and respectful, as was the husband.

19. At the trial, Mr and Ms Goyal presented as delightful people with a healthy and profound respect for each other and an overwhelming love for their son. Thus, although X’s parents have separated, for him that has been beneficial. X, has said it: my life has been calmer; I like seeing my parents separately.

20. When living together, I accept the mother’s behaviour would have been difficult. She said, herself, she was in a bad place. The mother told the Court when she saw Dr D, she was chaotic, she was not organised and believed she was there to defend herself and her role as a parent, something she had done all her life. I accept that this is the woman Dr D saw; it is not the woman that presented in Court, nor is it the mother that X has been living with in a joint, equal time co‑parenting arrangement since 1 March 2018. That may have come about for various reasons. Leaving the family home, the multitude of courses the mother has attended, effluxion of time. The reasons may be many.

21. The mother consulted her own psychologist after receiving Dr D’s report. The mother said, in oral evidence, that after having read Dr D’s report she took on board what he said about her functioning and necessity to obtain assistance and went about and made the changes. The mother said, when she saw Dr D she was feeling emotionally drained with her parenting and so did the courses he recommended. “My main focus was to give me the understanding to help him and provide for [X]’s emotional development, take him on play dates, go to the water park, do Meccano with him.” She described parental conflict as a slow poison thus clearly understands how detrimental this can be for her son. The mother acknowledged X was exposed to such conflict whilst the parties lived together.

22. The mother described that when seeing Dr D she was “looking for professional help as I felt emotionally screwed”, and apologised for using that word. “When I saw [Dr D], I was all over the shop”, and that is the person Dr D observed. However, what Dr D did not reflect upon in his report, but made the concession when it was put to him in oral evidence, was that this was a mother who had no resources to assist her to parent her child, had been living with the paternal family in a cultural situation where her parenting, she felt, was under threat, and Dr D did not refer to any of these pressures. To his credit, he said, “I had not realised that the mother had no resources and the father had all the resources”.

23. The mother has been to every course at a O Group on parenting. The mother has attended a domestic violence counsellor, Ms K. The mother has done as much as is possible to effect change and come to an understanding of the value of her important position as X’s mother and how she is to deal with her former husband. Her evidence on the changes she has effected was impressive.

24. The mother opined that even when she moved to her own separate address, the father continued to try and undermine her parenting, perhaps unintentionally. The mother described him walking into her apartment, uninvited and unannounced, and yelling at her when he came to collect X. The mother said she went to the police in August 2018 and after that time the father began to respect her. The father spoke of now staying in the car and waiting for the mother to bring X down.

25. The mother said after having spoken to the police about this behaviour, which she regarded as abusive, that she is empowered, will not tolerate it and that the father has respected this wish. Their relationship is improving in leaps and bounds. It does not matter that the father says he was never spoken to by police; a matter I accept, for the mother, this was a seminal moment and the trajectory is upwards.

26. The mother said she feels much better now, is more emotionally available to her son, can give him emotional help, give him more happiness, pay him attention, be there for him, teach him important emotional lessons. “I feel more empowered.”[X] is benefiting from that. I accept this evidence entirely.

27. The father has not had to go through these changes and growths because he is of the personality he is and he has lived with his parents who have supported him in his parenting role. That has not been the case for the mother as she perceived it. Being on her own has allowed her to grow and develop as a parent.

28. Ms L is the mother’s psychologist and she will re‑engage with her and described her as “awesome”. The mother and father each agree that they will henceforth use one medical centre at Suburb N and one, Dr M; if she is not available, a doctor from that centre, one paediatrician, his current paediatrician, a Dr F, and if he needs a psychiatrist, Dr J. That X will have an assessment as soon as possible to determine whether he is on the autism spectrum and that the parents will, to the best of their ability, abide by the recommendations made by the paediatrician if X requires further counselling, psychological assessment or further treatment.

29. There must be a consistent approach for this boy, because X has seen many people. He has his own GP, paediatrician and psychiatrist. He has seen Ms P, a psychologist, that the mother took him to. He spoke to Mr V from Helpline, and he spoke to Mr T from a Counselling Organisation only once. That is far too many people and there must be one targeted approach and the parents agree. X is not having any therapeutic intervention at the moment and that is a good thing for him.

30. There was an argument raised that the mother had taken X on two occasions for meditation. This is agreed. The mother said the father showed her information on the website that this group believe in doom and gloom, the end of the world, volcanoes and catastrophic events and she said she then ceased attending immediately. I accept this evidence and that she will not expose her son to this group again. I accept that the mother intends to get her driver’s licence as transport is an issue for her and will do so when she has a part‑time job.

31. The mother said the last time X would have seen his parents argue would have been in March 2018 when she physically moved out and she does not believe he has seen either of his parents yelling since that occasion, and that is consistent with X’s comment to Dr D where Dr D says, paragraph 34:

    [X] was able to give a reasonably coherent account of the conflict that led to this day, saying his parents had too many arguments about him. They disagreed on most things and have “different views of how I should grow up”. [X] said he saw arguments, fighting and chaos almost all of the time. When asked for an example, he said his mother had taken him out of the habit of “sleeping by myself” and when at his mother’s house, he said he sleeps most nights with her and sometimes with his father. Arguments peaked when his parents separated, in year 4. His parents spoke in W Language so he didn’t understand but he said his mother and his grandmother clashed.

32. This is the same description the mother and father give of their past life together. However, there has now been a significant period of stability and calm. There has been one incident since the parties physically separated, namely the mother taking the child to Mr T at a O Group and telling him to keep a secret. Even so X’s progress has been pleasing at school, emotionally, psychologically, socially and educationally.

33. His mother’s progress is most pleasing. The mother has gained insight, understanding, she is calm, coherent, organised, insightful and reflective. The father has continued to be the calm, insightful, reflective parent and person he has always been, and these parents treat each other with respect.

34. The fact that they may not be able to always agree on a decision and, for example, the mother may, if she believes it is in X’s best interests, do something such as take him somewhere or do something with him, call the police to calm a situation down, is perhaps the only risk that I can see of maintaining the arrangement in place. It is a slight risk and could happen whether X was living with his mother five, six or seven days a week. The time he lives with her has no bearing on this slight risk and it may always be a slight risk with this mother. All parents have difficulty in coming to an agreement and these parents are no different.

35. The mother has raised the father’s violent behaviour towards her during the marriage in her affidavit of 10 December 2018, from paragraph 72:

    a)The wife alleged that the husband kicked her and pushed her in front of X, but she did not report it to the police.

    b)She said that the husband took X from her forcefully when they were at a McDonald’s restaurant in 2009 or 2010 and took him home and left her there.

    c)That his mother was inappropriate. In 2015, she pushed her hard, put her foot on top of her foot pressing it, smiling sarcastically.

    d)That she was financially controlled by the husband who requested her wages be deposited in his account. She worked with Company S up until the birth of X, then when she returned to work it was in the family business and is currently seeking work. That she only had $50 a week for her own personal use.

    e)She was pressured to give $1000 to her father‑in‑law and this is when she lodged a letter of objection to sponsorship in 2008.

    f)When she was breastfeeding X, the grandmother constantly interfered.

    g)The grandfather burst into the bathroom when she was showing X how to wash himself, saying to the child, in 2017, “Maintain your privacy. I will make a complaint”.

36. However, the mother did not seek to cross‑examine the father on any of these allegations and given that her application is for equal time and equal shared parental responsibility, it may be that the mother no longer has concerns about this behaviour particularly as she is physically separated from the husband and they have managed to create a respectful, polite, courteous, businesslike form of communication with each other.

37. I reject many of the concerns raised by Dr D at paragraph 45 of his report:

    a)He said he had serious concerns about the way shared parental responsibility has in practice operated. The concerning shared parental responsibility is likely to operate in the absence of a fundamental change of mindset on the part of the mother. Her penchant for enlisting external authorities, counsellors and the police, to intervene in attempts to parent her 11 year old son are already alarming insofar as they reflect poorly on her parenting and stress management skills, regardless of the potential deleterious impact on X.

    b)This is based on two incidents post‑separation. The incident where the mother called the police on X because she could not control X and asking him to keep a secret when she took him to a counsellor.

    c)Going to the first incident. Given this happened when the parties were living under the one roof that husband and grandparents were there and could not control the child and having regard to the living circumstances of all the parties and X, at this time, I reject that this one off incident is a cause for concern into the future.

    d)This was the mother attempting, erroneously, to exert her parenting authority in a home where she believed she had none.

    e)Taking the child to a counsellor and asking him to keep it secret was again her attempting to exert her parental authority because she firmly believed X needed this counselling and his father would not agree, and this is not the first time the father has not agreed to intervention for his son. As a consequence of this case I am confident the mother will never repeat such a poor decision by her to ask her son to keep a secret from his father.

    f)Nothing was raised or put to Dr D that the father did not agree to his son having an FM transmitter to assist him to concentrate in school. That was a poor parenting decision by the father, again perhaps, the father not wanting anyone to think there was something wrong with his son, a theme I detected in the paternal family.

    g)The mother knew very little about this, was not at the interview when it was recommended and did not have the money to pay for it. When pressed as to why he did not obtain this device for his son the father’s glib comment, “I didn’t want to pay $700 or $800 for it and him not use”, did not impress me at all, given he would spend in excess of that each month, on the extensive tutoring and other extra lessons the child is engaged in.

    h)The FM transmitter was something X needed, the father did not want it. I formed the view from his evidence that the father did not want the transmitter because he did not want his son to be singled out in some way and think he was different. X is a special child; he is unique, and if he requires an FM transmitter, it should have been obtained for him. However, Dr D did not know of that and so could not comment.

1. Continuing on with paragraph 45:

   a)[Ms Goyal]’s willingness to make unilateral decisions about [X]’s mental health against consistent professional advice. I do not accept this is what has occurred. This opinion and its conclusions are flawed as his father against professional advice did not get him the FM transmitter. His father formed a unilateral view and did not discuss this with his mother. Both parents have behaved in this fashion although on a limited basis. There is no course of conduct showing a pattern of behaviour that I can detect to support this is a factor for the future from either the mother or the father.

   b)Dr D casts doubt on the mother’s commitment to follow expert guidance as a competent parent would be expected to. One may say the same of the father in not getting the FM transmitter. Dr D blew the mother taking the child once to a counsellor out of proportion given it is one isolated event. The father has not followed professional advice either.

2. Dr D said, at paragraph 51, “Given serious concerns over [Ms Goyal]’s psychological functioning, judgment and parenting capacity, as well as her persistent unwillingness to cooperate openly with the father and abide by professional medical evidence there appears to be sufficient reason for the Court to strongly consider sole parental responsibility in this matter, and in that circumstance, the more functional, child‑focused parent would be [Mr Goyal], and time should be reduced effectively 10 nights with his father, four nights with his mother a fortnight.”

3. That recommendation is based upon flawed reasoning and has placed these two events at a level of risk that is not justified. The father has done precisely the same in relation to the FM transmitter. If I draw the same conclusion about the father as Dr D did about the mother from one event where would that leave X?

4. The parties’ respectful and polite conduct towards each other and X’s positive progress are the best evidence I have that Dr D was wrong to conclude as he did.

5. This was a matter where Mr Harper, on behalf of the husband, had to scratch very hard to find matters sufficient for this Court to say that a child was at risk of harm in his mother’s care. There were deficits. There were problems. There have been issues with the mother and the father and in the care of their son. However, they are of such minor compass and, given the circumstances of the mother’s living arrangements whilst in the father’s household, her clear improvement and X’s clear improvement since physical separation, I do not see there is a risk of harm to X in either parent’s care now they are separated.

6. As the Independent Children’s Lawyer put to me, quite candidly, the risk of harm is in now varying the current arrangement which has been in place for 15 months and under which X as well as his mother are doing well. That is the risk; that is the unknown, changing the arrangement which has been working well.

7. To make an order, as the father asks I do, for five nights a fortnight, is a significant change in X’s care arrangements and in the routine under which he has been living for 15 months and progressing well. We have 15 months of forward, positive progression of X, his mother’s continued growth and health mentally, emotionally and psychologically, now looking for a job, wanting to work part‑time to support her son, and I am being asked to vary that to a different arrangement of five nights a fortnight.

8. Going to the Act[2], there is no evidence to support my exercising my discretion to rebut the presumption of equal shared parental responsibility. There is no violence significant to rebut it. The sharing of this responsibility does work, has worked and will continue to work. These parents do communicate and can cooperate and will sort it out. To have one parent excised from X’s life in the parental capacity aspect is, as Dr D said, the worst thing that could happen and a child can lose a parent when that occurs. I will not rebut the presumption of equal shared parental responsibility as the father asks I do.

   [2]Family Law Act 1975 (Cth).

9. I must now consider whether an order for equal time or significant and substantial time, is proper.

10. X has been living in an equal time arrangement for 15 months and has been progressing well.

11. Going to the factors under section 60CC(2) and (3) of the Act[3]:

    [3]Family Law Act 1975 (Cth), s 60CC(2), (3).

12. X clearly benefits from a meaningful relationship with each of his parents. That is clear and each parent acknowledged that.

13. X has been exposed to poor behaviour; his parents shouting, yelling, and arguing about him; him observing it and seeing it. However, it is at the moderate to low level and the child himself has never been abused. The conflict has engendered anxiety in the child and that is to be understood.

14. X’s wishes:

15. As I read Dr D’s report, X’s wishes are things stay as they are, not that he said that. He certainly did not want things to change. He did not ask for a change. His complaints about his mother were too much “time out” and “I might want to stay with dad more because he lets me play video games”; hardly something a Court would look at as a wish to attach weigh to. As I see the evidence for X it is for his living arrangements to stay the same.

16. The nature of X’s relationships with his parents and grandparents. He has a close, attached relationship with his father and his paternal grandparents who are very important people in his life. He has a close and attached relationship with his mother; a very important person in his life. His parents have different wants, needs, wishes for him, as he himself expressed to Dr D, and have a different parenting approach and style. That is not a negative for X and may well be a positive.

17. At his mother’s home, he and his mother do things in their way. His mother parents him in her way. His mother shows and teaches him the things she believes are important for him to learn and know, and the same occurs in his father’s home. This is enriching, this is his right and his entitlement.

18. Both parents have always put the needs of their son before their own, for the mother to her detriment at times. Each are focused only on his best interests, his emotional, psychological, social and educational needs. He is engaged in more activities than any child should be engaged in and the parents each agree this much change. They have each focused only on their son in this hearing and agreed they will use one GP, one paediatrician, one psychiatrist, and will be guided by the paediatrician as to whether the child has any further therapeutic intervention. They will immediately have him assessed as to whether he is on the autism spectrum.

19. It is relevant to look at what are the care arrangements in place before this hearing. It is equal time and it is working to the benefit of X.

20. There is no evidence, let alone compelling evidence, justification or reason that I would exercise my discretion to vary the interim orders made on 1 March 2018. To do so is to take a step which may result in placing the child at risk as I will unbalance what has been a care arrangement for him that has worked well. Therefore, I accept the position of the Independent Children’s Lawyer and the mother that the current arrangement is the order in the child’s best interest and X will remain in an equal time parenting arrangement.

I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Henderson delivered on 18 July 2019.

Associate:

Date: 18 July 2019