Hope and Kingston (No 2)

FAMILY COURT OF AUSTRALIA

HOPE & KINGSTON (NO. 2)

[2013] FamCA 720

FAMILY LAW – CHILDREN – all issues disputed but parents both attached to child who has form of autism – importance of not focussing on a mathematical calculation of time but on what will work for the child.

Family Law Act 1975 (Cth)

M and M [1988] HCA 68; (1998) 166 CLR 69
MRR v GR [2010] HCA 4; (2010) 240 CLR 461

APPLICANT:

Mr Hope

RESPONDENT:

Ms Kingston

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

12680

2012

DATE DELIVERED:

13 September 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

3, 4, 5, 8, 9 April 2013, 14, 16, 17 May 2013, 14 June 2013, 7, 12, 13 August 2013

REPRESENTATION

THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr Wilson

SOLICITOR FOR THE RESPONDENT:

Altavilla Vessali

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Harris

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

That all extant parenting orders (including injunctive orders) are discharged as and from 9 am on Monday 23 September 2013.
That in respect of the health of the child J Hope-Kingston, born … 2007, the mother and the father continue to engage with the multi-disciplinary team as recommended by Dr H (or her nominee or successor if Dr H is unable to continue in that role).
That the mother and the father follow all reasonable recommendations of the multi-disciplinary team as co-ordinated by Dr H (or her nominee or successor) as to the treatment of J’s health issues.
Subject to the views of the relevant professionals to the contrary, each parent shall be entitled to attend all sessions of the members of the multi-disciplinary team and the parent who has the care of J under these orders on the stipulated appointment date shall be responsible for ensuring J’s attendance at the appointment.
That the Independent Children’s Lawyer provide to Dr H a copy of these orders and the reasons for judgment this day with a request that she use her discretion as to which health professionals should have access to those documents and if they are so disseminated, Dr H request such recipients to note that they are only be used for professional purposes to assist J.
That the Independent Children’s Lawyer provide to Dr B a copy of these orders and the reasons for judgment this day with a request that she use those documents only for professional purposes to assist J and the mother.
That the Independent Children’s Lawyer provide to the Principal of J’s primary school a copy of these orders with a request that he or she note the shared parenting arrangement concerning J and the obligation of the parents to follow all reasonable recommendations of the multi-disciplinary team of health professionals.
That the mother and the father have equal shared parental responsibility for J save that in respect of health issues which are the subject of the orders in paragraphs 2 and 3 above, if there is disagreement about any major long-term decision concerning J’s health, the parent who agrees to follow the recommendation of the multi-disciplinary team as directed by Dr H on that issue, shall have the sole responsibility for making such decision.
That J live with the mother and the father in a shared fortnightly cycle commencing Monday 23 September 2013 at 9 am which shall contain 3 periods of time:
(a)       Monday at 9 am until Friday at 9 am;
(b)       Friday at 9 am to the following Wednesday at 9 am; and
(c)       Wednesday at 9 am to the following Monday at 9 am.
For the avoidance of doubt, the mother will start the cycle in (a) on Monday 23 September 2013, the father will have J for the period in (b) and then the mother will have J in (c). The cycle will then commence with the father in (a) and the parents alternating the periods within the cycle thereafter.
If J cannot be delivered to school because of illness or some other similar reason, the parent caring for him shall notify the other parent before 9 am and each shall forthwith make arrangements for J’s care for that day.
Upon the completion of each school term, the fortnightly cycle shall cease.
The fortnightly cycle will start afresh with each new school term and regardless of the day nominated by the school as the first day of term, the fortnightly cycle will commence on the Monday of the first week of term and the mother shall have part (a) of the cycle in that first week of every new term.
During all school holidays (both term holidays and the long summer holidays) J shall live with each parent on a week-about basis commencing from the moment school concludes for the term until the same time 7 days later.
For the purposes of paragraph 14, unless the parties otherwise agree in writing, the mother shall have the first 7 day period.
For the avoidance of doubt, the alternating 7 day cycle for the holidays shall continue regardless of whether each parent obtains one precise half and/or whether the last portion of the holidays does not amount to 7 days including in relation to the various periods of time referred to in paragraph 17 hereof.
Paragraphs 9, and 14 are suspended during the following periods of time:
(a)on Mothers’ Day and on that day, J shall spend the day with his mother from 9am to 6 pm;
(b)on Fathers’ Day and on that day, J shall spend the day with his father from 9am to 6 pm;
(c)for the period of 12 noon on 24 December 2013 until 5 pm on 25 December 2013 and for a similar period in each alternate year thereafter and, during such time, J shall live with the father;
(d)for the period of 12 noon on 24 December 2014 until 5 pm on 25 December 2014 and for a similar period in each alternate year thereafter and, during such time, J shall live with the mother;
(e)for the period of 5 pm on 25 December 2013 until 8 pm on 26 December 2013 and for a similar period in each alternate year thereafter and, during such time, J shall live with the mother; and
(f)for the period of 5 pm on 25 December 2014 until 8 pm on 26 December 2014 and for a similar period in each alternate year thereafter and, during such time, J shall live with the father.
Unless the parents agree in writing otherwise, all handovers of J which do not occur at his school shall occur at an agreed venue and failing agreement at the McDonald’s Restaurant Playground facility nearest the father’s residence.
J shall communicate with his parents by telephone and (by agreement between the parents by Skype) at the following times:
(a)During the fortnightly cycle referred to in paragraph 9 on the second and third nights of each period at 7 pm;
(b)During all school holiday periods, on the second and third nights of each period at 7 pm;
(c)       On J’s birthday at 7pm;
(d)       On the mother’s birthday at 7 pm; and
(e)       On the father’s birthday at 7 pm.
For the avoidance of doubt the telephone or Skype communications referred to in paragraph 19 shall be initiated and facilitated by the parent who has the care of J at the relevant time and the other parent shall, unless having told the caring parent of their unavailability, make themselves available to take the telephone or Skype communication.
Each parent is restrained from taking J to any paediatrician, doctor, psychologist, psychiatrist, therapist or other health professional (other than for insignificant illness or in an emergency) without the knowledge and agreement of the multi-disciplinary team referred to in paragraph 2 hereof as well as the other parent.
That by email and not more than once a month, each parent provide to the other the daily routine they have in place for J and a copy of that email be provided to Dr H if she considers it relevant.
That each parent prepare a calendar for J’s benefit enabling him to at all times view the movement between the parents’ respective households.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
Save as to any issue of costs, all outstanding applications are otherwise dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 12980 of 2012

Mr Hope

Applicant

And

Ms Kingston

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

This case is about J (“the child”) who is six years old. A team of experts is now dealing with his behavioural problems. The exact manifestation of those problems is disputed by the child’s parents as is the cause. The Court’s task is to decide what role each of the child’s parents will have in his already troubled life.
Everything about the child’s life, like the litigation before me, has been controversial. It is time to bring the dispute to a conclusion.
The father has been the applicant in the proceedings. Mr Hope is 43 years of age and a consultant to business by occupation. He is a single man and J is his only child.
The mother was the respondent in the proceedings. Ms Kingston is 35 years of age and occupies her time in home duties. Immediately prior to when the case began, she had been employed at a retail business but left that to concentrate on the proceedings. She had no firm plans to return to work. She has worked in psychotherapy and has been a nanny for children with special needs. In his evidence, the father also referred to a variety of other interests that the mother may have had.
The mother and father had a fleeting relationship of about three and a half to four months during which time they did not seem to live together. The child was conceived during that time. Just why the relationship came to an abrupt end remained a mystery with both parties having a different view. The father told psychiatrist Dr E of what he perceived as the mother having an affair. The mother gave evidence that she went to a counsellor and realised that the father’s denigratory and abusive pattern of behaviour was symptomatic of the relationship. Neither of those matters is of much consequence to the determination I have to make. Needless to say, the relationship ended a long time ago. Significantly, the mother was then pregnant with the child.
In confusing correspondence written at the time of the ending of the relationship, the mother was very critical of the father. For his part, the father qualified his offers of support for her because he questioned whether or not the child was his child. During the pregnancy, the maternal grandmother rang the father to tell him he was not the father.
The father was not present at the child’s birth. Indeed he did not know of the child’s birth and it was ultimately only after DNA testing was undertaken that the paternity issues were resolved.
It was months before the father saw the child for the first time. Thus, unlike many relationships, there was no period of happiness here and there has been a tussle between the mother and father ever since paternity has been clarified.
According to psychologist Mr P, and it would also seem Dr K, the tussle between the parents has had a profound effect on the behaviour problems of the child. Whilst all children in conflictual relationships suffer emotionally, no expert was able to say how much of the child’s current behaviour problems are environmental and how much genetic.
One of the criticisms of the mother was that she pursued a pathological explanation for the child’s behaviour. The mother, not only because of her interest and background, pursued information through the internet and spoke to a number of professionals seeking answers to why the child behaved as he did. All of that must be seen in the context of her full time care of the child and being involved in a very poor relationship with the father.
Very soon after the child’s birth, the father pursued a relationship with him through the litigation process. Until now, there has been little respite for the child.
By the time this case had arrived at the final hearing, each parent had accused the other of sexually abusing the child. None of those allegations had any real foundation and the acrimonious relationship between the parties only fuelled them. I am satisfied nothing turns on the allegations and the child is not at risk of that sort of conduct in either party’s care. Listening to the experts in this case, I can see how easily the child’s words and actions could be misinterpreted. He has been, at times, confusing with his statements. That said, a substantial change in his life occurred when his arm was broken in 2012 and the father accused the mother of being involved in the break. The mother accused the father of colluding with the child’s day care centre to ensure that between them, the mother was blamed for what she saw as the centre’s negligence associated with a fall by the child to which she attributed the break in the arm.
Until June 2012, the child had lived with and been predominantly cared for by the mother. On 25 June 2012, based on the evidence then presented, Senior Registrar FitzGibbon ordered that the child live with the father and that he have limited and supervised time with the mother. The simplicity of that statement belies the real problem that had occurred and which was the focus of much of the hearing before me.
I shall deal with the sequence of events about the break in the child’s arm but it is sufficient for these purposes to say that the Department of Human Services and police became involved and took the matter to the Children’s Court of Victoria. I am satisfied that the mother was in a position where she had little choice but to agree to a position where the child was handed to the father and her time was restricted. The proceedings in this Court followed immediately and the mother was in no position to argue that any contrary arrangement for the child should apply.
When the matter came on for hearing before Senior Registrar FitzGibbon on 25 June 2012, all parties were represented by counsel. The Senior Registrar set out the circumstances as he perceived them but it is important to note that the Court was told that the police were continuing with their investigations to determine whether charges might be laid against the mother. The Senior Registrar then said:
My obligation is to make orders in the best interests of the child and in circumstances in which these proceedings were issued urgently and after the Department of Human Services (DHS) filed an application in the Children’s Court of Victoria for the care and protection of [the child]. On undertakings of the parties and particularly that proceedings would be initiated in this Court on 1 June, that court acceded to and considered that giving the pending proceedings before this Court on 29 May, it was to leave it for hearing in the Family Court.
The factor that is most significant in my determination is that we are awaiting the outcome of police inquiry. We do not have a police file and we do not have the DHS file. These two things and the contents of them, of course, will significantly inform the future course of conduct of this case.
Now, I make (an order that the mother be restrained from attending at the day care centre) on the basis that we are awaiting the inquiries and determination by the Victoria Police of whether any charges are to be laid, and therefore, it is designed to protect both the child and mother from suggestions that anything untoward or inappropriate may be said or done.
The Senior Registrar then set out the respective positions of the parties and said:
These diametrically opposed positions in one sense have to be viewed in the context of the past and ongoing unhappy conflicts and animosity between the parties. At all times the orders made by this Court must be in the best interests of this child weighing up in the circumstances of this case if there is a risk and if so then what is the magnitude of the risk and how may it be mitigated by orders, if at all.
I conclude that there is, on the face of the material, albeit challenged and inconclusive, a risk which is sufficient that protective and careful orders ought be made until further order or the adjourned date, whichever falls first.
The Senior Registrar’s orders can be seen to have been on untested evidence but with a particular focus of the investigation by the police. It was common ground that the police laid no charges. The Department of Human Services stepped back from any further proceedings.
In September 2012, the matter came back before the Senior Registrar and minor variations were made to the time between the child and his mother. It will be apparent that by this stage, the child’s long-standing relationship with his mother had been altered and he had been with his father for some months.
The subsequent orders were made removing the supervision of the time between the child and his mother but as late as the adjourned date of the part-heard hearing before me, the parties were in dispute about what time should be spent between the child and his mother. Substantial evidence had been heard by that time. I find that the acrimonious relationship between the parties contributed to their inability to resolve that problem particularly keeping in mind the evidence of experts that they had then heard.
I have highlighted that one particular incident because it created a significant change in the child’s life but there were significant times prior to that incident when the child was exposed to the conflict between his parents. For his entire life, he has been the subject of that problem. He is a troubled child and it is only now that a multi-disciplinary team of professionals is addressing those difficulties.

Finding in relation to risk

I am satisfied on the balance of probabilities that there is no evidence that would justify finding that:
(a)the father sexually abused the child;
(b)the mother sexually abused the child;
(c)the mother broke the child’s arm; and
(d)the father colluded with the day care centre to set up the mother in an effort to prove that she had something to do with the breaking of the child’s arm.
With those findings however, I also find that when the father filed his affidavit in 2012 for the hearing in June 2012 before the Senior Registrar, he failed to mention that he had had a conversation with the childcare centre that he had a theory that the mother broke the child’s arm. The significance of that was that it was a further five days before the child made a statement about his arm. That sequence raises doubts and concerns in my mind about why the child made the statement that he did. It was that sequence of events that led to the Senior Registrar’s decision to which I have earlier referred.
The Court relied heavily, as it must, on the father’s material. Needless to say, the decision was a radical departure from the child’s pattern of care until that time and as Dr B to whom I shall later refer in these reasons, said in evidence, it would have been a very confusing time for the child.
To compound the problem, the impact on the mother was also striking. The evidence of psychologist Dr K (to whom I shall also refer) enables me to conclude that at least some of her behaviour towards the child including in the clinical observation period which was described as strange, may well have been contributed to by the events earlier mentioned. The child did not benefit from the change even though the father maintained that he did. The consequent delay in getting him help with the range of experts on offer, was most unfortunate.

Unacceptable risk

Where there are allegations of abuse involving children, the assessment of the risk has to be seen in the context of the parenting orders sought by one or more parties. The unacceptability of the risk in making any particular order focuses on the potential harm to the child. In M and M [1988] HCA 68; (1998) 166 CLR 69, the High Court said that the resolution of the allegation of abuse against a person is subservient and ancillary to the determination of what is in the child’s best interests. The paramount issue cannot be diverted by a pursuit of a definitive conclusion about the allegation of sexual abuse. In many ways, that is exactly what the parties were doing and although those issues need to be determined here for the purposes of assessing both capacity and responsibility as parents, they are but one or more factors in the pursuit by the Court of making orders in the child’s best interests. The orders proposed by the parties have to be seen in the context of the potential harm to the child if they were made. It is for those reasons that the findings I have set out above are made on the basis of the evidence to which I shall turn below.

Positions at the beginning of the proceedings

When the proceedings began, the father, as applicant, sought that the child live with him permanently, that he have sole parental responsibility for long-term major decisions about the child and that the mother spend time on Wednesdays after school for four hours, and on alternate Saturdays for five hours all of which was to be under supervision. That was not his position at the end of the hearing where, in his final address, he conceded that he had heard much and altered his position. On the basis of the evidence, I find there never was any justification for the approach the father took.
When the proceedings began, the mother also sought sole parental responsibility, that the child live with her and that the father’s time be supervised on one Sunday per calendar month. On any view of the evidence, that position was not justified at that time nor, importantly, was it the position at the conclusion of the proceedings.
What is significant however is that each of those positions permeated the proceedings and notwithstanding the final addresses, it is clear that the acrimonious relationship has not altered its course nor is it likely to in the future. That has significant ramifications for endeavouring to make an order for equal shared responsibility.

The material relied upon

I do not propose to set out the material in detail but insofar as matters were relevant, these reasons will address the evidence that the relevant witnesses gave. There were a small number of witnesses whose evidence was relied upon and who were not called to give evidence.

The evidence of the parties

Each party gave evidence which was essentially honest. The contentious issues to which I shall now turn were seen by each of them through very different subjective eyes. Each showed insight in the sense of acknowledging the problem but then reverted to their respective intractable positions. Neither party took responsibility for any of the conflict. The mother blamed the father for problems accusing him of abuse which the father denied and the father alleged that the mother’s behaviour was designed to exclude him as a parent. That position was denied by the mother. I would not be prepared to find that I generally accepted one party’s evidence over the other and as such, I make findings as set out hereafter in respect of each of the matters that I found contentious.

The 2009 court orders

The father filed proceedings in this Court when the child was three months old. That led to orders being made for the preparation of the family report by psychologist Mr P. Having regard to the child’s age, a consensual arrangement was made that he live with the mother and spend time with the father under a gradually increasing regime.
Despite the fact that final orders between the parties were made in June 2009, the father’s evidence returned to the period prior to that time. He referred to an incident in January 2008 in which he witnessed the mother “vigorously shaking” the child and then said that he believed that this behaviour was witnessed by a family consultant. He said he discussed this with the family consultant who told him she had witnessed the shaking and that he should issue a Notice of Risk of Child Abuse. The curious feature of that evidence was that family consultants are mandated to report child abuse and if she witnessed it as the father said, one must ask why she did not report it. The father filed a Notice of Risk of Child Abuse and in due course, the family consultant advised that the incident was “blown out of all proportion”.
The mother’s version was that she was not shaking the child as described. On the balance of probabilities, I accept the mother’s version.

The intervention order

The parties had attended psychologist Mr P in April 2008 and in his report, Mr P noted the conflictual relationship between the parties. All that came to a head in June 2008 when the mother issued an application for a family violence order in the State Magistrates’ Court. The substance of the application arose out of a handover of the child who was then 10 months old. The mother asserted in her complaint that the father locked her car door and then gave her a “hip and shoulder” into the car door.
The mother’s version of what happened that day coincided with what she had said in her complaint. The father denied the allegations but made reference in his affidavit to a different date.
When the complaint came on before the State Court, the father entered into an undertaking without admissions as to the facts for a period of 12 months. The father did not explain why he did that bearing in mind his assertion that he had done nothing wrong.
The entering into the undertaking meant that the complaint was withdrawn but only days later, the mother sought to reinstate it arising out of a dispute again at handover of the child. This led to changeovers being effected at a police station and the father’s explanation for that agreement was that it would limit the opportunity for further application by the mother because all interactions would occur in the presence of police. It was not lost on the father that this sort of arrangement was not ideal but it set the tone for the ensuing four years of conflict. To the extent that such an arrangement was intended by the father to limit problems, the idea failed. That becomes evident shortly.

Final orders 2009

On 30 June 2009, final parenting orders were made by the Court predominantly in accordance with the recommendations of Mr P. They provided for an overnight stay by the child leading up to five nights in the week when he turned three years of age.

2010

It was the father’s contention that as the changeovers occurred and his time increased with the child, the mother became increasingly hostile towards him and argumentative. Those broad brush statements have to be looked at in the context of the mother’s version because what the father said gave rise to those problems was her regularly raising issues about the child concerning food, clothing, activities and his health. From the father’s perspective, he thought that the child was exhibiting strange behaviour at changeovers which were not present when he was with him. Those include being clingy, speaking “jibberish”, not interacting appropriately with other children or adults with whom he was not familiar and also regressive behaviour. None of that was detailed in the affidavit with any specificity bearing in mind it was said to be limited to changeovers.
The mother denied hostility and argument and said that all she was trying to do was to speak to the father about the child’s needs as he grew older but the father refused to enter into discussions or, dismissed what she was saying.
Bearing in mind the conflictual nature of the relationship which had already been observed and commented upon by Mr P, and having regard to what I observed in the parties’ relationship, I find on the balance of probabilities that the father did dismiss the mother and her concerns. The father’s evidence was that he did not notice any problems with the child and that was the situation that he continued to maintain right up until the hearing. There is no simple answer to why that might be so and the evidence of Dr H to whom I shall soon refer indicated that children behave differently in different environments. There is enough objective evidence for me to find that the mother was concerned about the child’s behaviour and she was seeking answers but the father simply dismissed her because of the nature of their acrimonious relationship and, as will be evident when I turn to the evidence of Mr P and Dr K, his rigid approach.
Accordingly, I find that the mother’s evidence about the father’s behaviour in 2010 is the preferred version.

The parties attend upon Mr P

Proceedings were back on foot again and the parties returned to Mr P to try and negotiate issues about the child.
One such issue related to telephone calls. The 2009 orders made provision for telephone contact between the father and the child. One might question the efficacy of telephone calls on a regular basis between the father and a child of that age but the father’s complaint was that he did not have his calls answered and when he asked the child why that happened, the child replied “Mummy gets cross”. Leaving aside the leading nature of the question and the appropriateness of asking a child that young in any event, I am not entirely sure what the father was expecting to occur.
The mother’s version was that she always did the best she could to facilitate those telephone calls but the child would often refuse to talk, became angry and had a tantrum. She pointed to one example where the child ran outside and threw the telephone into the swimming pool.
Having regard to the father’s rigid approach and his insistence upon the compliance with orders for a child so young and constantly changing, I found this evidence perplexing. I found it showed the father had little insight into the difficulties that the mother was having and his rejection of her request for consideration and discussion was unreasonable.

April 2010 police station handover

On 11 April 2010, a changeover of the child occurred at the X Police Station. An unseemly incident occurred where the child was screaming and crying and hiding between two sets of glass doors. He apparently had been in his father’s care. The mother endeavoured to remove the child but he was resistant and the father went to calm him down. The father complained that the mother was recording the incident on her telephone and the parties had an argument. The father and the mother descended into minutiae as to what occurred and it did neither of them any credit.
The difference between the two versions of what occurred was relatively modest. The mother said that she observed the child as the father had described and she had been familiar with that problem and had developed strategies to deal with it but the father refused to allow her to try and calm the child and took over. She complained that the father was swearing at her as he held the child. The language recorded by the mother was not flattering to the father.
The police who were called into the area seemed uninterested and perhaps unsurprisingly so.
Both parties deserve criticism for this incident. Each must take the blame. The relationship between the parties was extremely poor. I find the father did simply take over at a time when it would have been more sensible for the mother to have been allowed to let her strategy unfold. It would have been more prudent for the father to have simply left. It would have been equally sensible for the mother to have not embroiled the father in the matter when he did intervene by simply stepping back herself.

Asperger’s syndrome

Sometime in early 2010, the mother told the father that she thought the child suffered from Asperger’s Syndrome because her father had been afflicted with that difficulty. The father’s evidence was that he rejected the basis of the mother’s assertion because he had not witnessed any behaviours consistent with that syndrome when the child was in his care. An argument then ensued because the mother was insistent that her assessment was correct.
The difference between the parties in respect of this issue was again modestly simple but made so much more difficult having regard to the nature of their relationship. The mother pointed to that fact that what she was endeavouring to do was to explain to the father what she thought the problem was as a result of her discussion with medical professionals and was seeking his assistance to find the appropriate help. Bearing in mind that the mother was the primary carer of the child at that stage, her approach would not have been unreasonable particularly having regard to the fact that under the 2009 orders, she had an obligation to keep the father apprised of the professionals with whom she was dealing. Having regard to my earlier comments, and the findings there made, it is logical for me to find that because the father believed that there was no such behavioural problem with the child in his care, he simply dismissed the mother.
It was the mother’s evidence that this approach by her was to endeavour to “engage” the father in discussions. By this point in time, she would have known that that was a pointless exercise. Sad as it may be to say, a more logical approach would have been to have committed the issue to writing and/or find an intermediary such as Mr P to try and get the matter sorted out. Even if that had been possible, on the basis of the evidence of the father and the assessment of the professionals about him, it probably would have been a forlorn hope.
Thus, in respect of the period to this point in the chronology, it will be clear that the mother was struggling with the behaviour of the child as she tried to work out what the difficulty was and she was getting no assistance from the father whose dogmatic approach to things exacerbated her.

The first allegation of sexual abuse

In July 2010, with the child not quite three years of age, the father said that he was told in the child’s language about what his mother did to him. The description given by the father was that the child said:
Daddy, do a farty on my pee-pee.
The father said that he could not believe what the child had told him although I am not entirely sure why. He said on the following morning the child went further and said that his mother covered his “pee-pee” with her mouth and that she played with “it” and then he did the same.
The mother’s evidence was to simply deny that she had engaged in such behaviour with the child. Unfortunately, the matter went much further.
Rather that have an arrangement where two parents would sit down and try and work out what all this meant bearing in mind the child’s language skills at the age of three, the father consulted with his lawyers and decided to note in detail his concerns because he suspected that if it was put to the mother, it would be simply denied and no further action would be taken.
Consequently nothing was said by the father to the mother but the father said that in September, he asked the child:
What does mummy do with your pee-pee?
The child responded by putting two fingers in his mouth and moving them in and out in a sucking motion. It is not at all clear to me why having reported the statement of the child in July to his lawyers, this question was not raised with the mother. I found that quite troubling.

The mother makes sexual abuse allegations

In October 2010, the child told his mother something along the lines that:
Yeah, daddy plays Doctor Doodle…he makes foam go everywhere.
A variety of other statements were made along with what the mother described as the child acting in what could only be described as a sexually explicit way.
Similarly with the problem that the father had faced in July, rather than contact him, the mother contacted the Department of Human Services.
In his evidence, the father denied ever being involved in such inappropriate sexual activities nor he did have any object that fitted the description that might have explained the child’s statement.
According to the mother, the Department of Human Services told her not to hand over the child to the father whilst they investigated matters. The mother then telephoned the police and attended the appropriate unit where an interview with the child took place.
Another witness of the mother, Ms S, whose evidence I refer to below, observed the very distressed mother on the day this statement was made. I am satisfied that the mother was told something of the nature described and it distressed her.
The consequence of these allegations was that the father was visited by police but because no statements were made by the child corroborating what his mother said, the father was told that the matter would not be pursued.
The lawyers then came into in the matter again with the father’s lawyers insisting that the allegations having been resolved by the police, the orders should resume. The mother did not agree.
Around this same time, the mother took the child to a family chiropractor, Mr R, whose evidence is also referred to below and although the child made some statements to him, my view is they mean very little.
The father then issued proceedings and raised the statements made by the child to him in July. Whilst that was happening, the father began demanding to see the child and the mother’s evidence was that he was abusive. Even the State police began contacting the mother asking about compliance with the court order.
The mother, being the respondent to the father’s application, filed a Notice of Risk of Child Abuse and when the matter came back to Court, the parties were sent off to see Mr P.
Having regard to the nature of the respective allegations at that time, the Court designated the case as a Magellan matter. The matter was referred to Bennett J on 17 December 2010 and her Honour made procedural orders. One of those orders was for the family report to be prepared and she raised the question of whether or not one party should effectively step out of the child’s life.
Despite all of those interesting queries, orders were made for a resumption of the father’s time and that occurred after the Department of Human Services advised the court that it had been unable to substantiate the sexual abuse allegations and had closed their files. The Department effectively left the matter to this Court to determine.
In his report to the Court, Mr P recommended that the Court needed to take control of the family and its functioning for the sake of the child. Psychiatric assessments were suggested as well as a full “developmental assessment” be conducted in relation to the child. Unfortunately, that did not happen quickly enough.

Sexual abuse allegation against the father

Whilst the mother’s affidavit evidence did not suggest one way or the other her present view, she said in cross-examination she thought the prospect of the father sexually abusing the child was very unlikely although she would never know for sure. Showing some insight, she added that she did not place a huge deal of stock in it. She acknowledged the possibility of what was asserted to have occurred was inherently unreliable but also that the child’s behaviour was difficult and unusual. She hypothesised that the inherent traits of Autism Spectrum Disorder more accurately explained why he said what he did. That view was borne out by her acceptance of the advice of the experts one of whom she named as Ms M. She said Ms M told her that children expressed themselves through stories and when she viewed it that way, things became clearer so that she was satisfied that the sexual abuse allegation made by the child were untrue. All of this “information” was placed before the Court despite the mother having decided that the risk was unlikely. Her explanation for that was that the Court needed all of the “information” available. That was not only unnecessary from an evidentiary perspective but also destructive of the parties’ prospects of any compromise.

In this case, the allegation against the father was never going to be an issue for determination so this background material was hardly relevant. What it did do however, was to fuel the fire of litigation and sadly, distracted everyone’s attention from the real problems of the child.
Before moving on in the chronology, it is timely to observe how the expert assistance (to the parties) of Mr P came to an end. Mr P ceased seeing the parties in controversial circumstances.
In a session involving the parties in June 2011, it seems Mr P became aware that the father had not earlier mentioned the allegations the child made about the mother of sexual abuse. Mr P was critical of the father. The father indicated that he had raised the subject of his complaint with his lawyer and that his lawyer had given him advice about what Mr P had told him to do with those allegations. Mr P said he could not continue to be involved with the parties because he felt compromised.
There was much cross-examination of the father about the sequence of those events. That culminated in the father waiving privilege and his solicitor providing file notes.
The father produced an email he had written to his solicitors just after the weekend when the child made the sexual abuse allegations against the mother. The father described to his solicitors what he had been told by the child as “not only revolting but highly distressing, and of course potentially highly explosive”. He acknowledged to his solicitors that children might have difficulty interpreting inappropriate behaviour and that his own questioning of the child “may even be twisted to suggest” that he was “leading”. He said to the solicitors he did not know how to deal with it and he sought their advice. In response, the father’s solicitor wrote that he had had “a chat with a psychologist” upon whom he normally relied. That unnamed psychologist said that the father should “step-back” and look at the wider context. That email was written to the father on 29 July 2010. Mr P did not meet the father until much later.
The priviliged notes also related to a conference with counsel in September 2010. Counsel indicated she was unsure whether the allegations amounted to sexual abuse and that the facts were unlikely to establish an unacceptable risk such as would justify an immediate removal of the child from the mother.
In the hearing before me, the focus of cross-examination by counsel for the mother was on when the father became aware that Mr P was the unnamed psychologist. The father could not remember whether Mr P’s name had been mentioned by the time of a hearing in October 2010 at which Mr P was appointed by the Court. He did however acknowledge that he did nothing when he did find out that his lawyer’s advisor had been Mr P.
The evidence does not enable me to say precisely when he found out but he knew before he was at the Mr P visit in 2011. How that knowledge came about remains a mystery but when challenged about being duplicitous, he said he relied on advice.
I am not satisfied the father kept silent for tactical purposes and his answer as to why his disclosure to Mr P came out was equally perplexing. He said he was just exasperated with what he was hearing from Mr P.
I do not know which lawyers within the firm were dealing with the case and how much involvement each (if more than one) had. Unfortunately, the whole incident left Mr P with a very unsavoury taste and all lawyers would do well to exercise caution about these issues in the future.

The parties’ relationship is late 2010/early 2011

I do not propose to canvas the evidence of what was going on between the parties in late 2010 but it is clear from their respective versions that they could not agree on anything and that each treated the other poorly and without respect as parents of their son. The father complained about the child wearing nail polish and that led to him saying in evidence that he told the child that only girls wore nail polish. Why that statement was made to the child and why it was necessary for him to give that evidence, I am unsure.
The mother too was accused of causing a confrontation with the father around the same time and he alleged that she struck him. In her affidavit, the mother denied screaming or swearing at the father but not the striking.
These are two examples of the parties’ inability to treat one another with respect but also the difficulties I now face in determining their levels of parental responsibility because most of the incidents complained about took place in the presence of the child.
The expert evidence in this case was that children should not be placed in conflictual situations between parents and that the very nature of the conflict between the parents creates a difficulty for the experts trying to assess the history of a child. I am satisfied that both parties behaved badly and there is no indication to me that either has learned from what they have seen and heard.
Whilst the evidence of the experts in this case is that it is hard to decide whether the child’s problems are environmental or genetic, I find that whilst the conflict has not helped, it is not the basis behind the child’s real problems. That becomes evident when I look at the experts’ evidence.

Medical and other health practitioners

The father said that the mother had taken the child to see a large number of professionals. The inference to be drawn from that statement was that the mother was “doctor shopping”. However, the mother’s evidence was that two of the doctors were general practitioners at one clinic at which there were 24 doctors on the staff. She pointed to the fact that one of the doctors named by the father was for her own medical conditions and the child had not been present. The gratuitous statement by the father is again indicative of the nature of the relationship between the parties and the absence of any trust.

the child acts out the conflict

In January 2011, in the presence of a supervisor, the child was brought to the X Police Station for changeover by his mother. As they entered the police station, the father said that the child asked his mother could he hit his father. He said it twice. The child then went to his father and began flailing his arms at him. At that point, according to the father, the mother said it was not okay to hit his father.
The mother said that the child was talking about being angry with his father and crying and swearing saying that he wanted to hit him. The mother said that she discussed the child’s feelings and said that it was okay to be angry but he could not hit his father.
There is little doubt that the incident occurred as the father described it. To the extent that he asked the Court to infer that the mother orchestrated it, encouraged it or did not dissuade the child from so behaving, I do not so find. I find this is another incident in which the parties should have jointly resolved the problem.
In 2011, there was a hearing in this Court. The child was referred to a number of professionals for the purposes of an assessment as to his developmental issues and in particular, the mother’s concern that he was suffering from Asperger’s Syndrome or as we now know, some form of Autism Spectrum Disorder.
The search then began for some answers about the child’s behaviour. In May 2011, orders were made to allow the parties to undertake an assessment with professionals whilst they also continued to attend on Mr P. Dessau J made orders in August 2011 for the child to attend such professionals as may be nominated by Dr B (whose evidence I refer to below) for the purposes undertaking a comprehensive diagnostic assessment about Autism Spectrum Disorder.
It was abundantly clear throughout these proceedings that the father does not readily accept that the child has behavioural traits consistent with Autism Spectrum Disorder. Various experts indicate hesitation about giving the child that tag and are much more comfortable in describing difficulties that need to be addressed.
The mother was cross-examined extensively by counsel for the father about the fact that she had concluded that the child had the Autism Spectrum Disorder and relentlessly pursued a path to prove that. Evidence was given and challenged about dietary problems, behaviour traits and the mother’s responses to that behaviour. Having heard the mother’s evidence over a number of days, I am satisfied that her pursuit of professionals was guided by her genuine belief that the behavioural problems she was encountering were explainable by Autism Spectrum Disorder. The father’s rejection of any such diagnosis comes about from two things. The first is that he saw no similar behaviour to that witnessed by the mother but the second was the advice of Dr H at the end of 2012 which saw no behavioural traits earlier witnessed. In respect of the latter, even in final address the father pointed to that advice but I am not comfortable in finding that that is an answer to the problem. Dr H’s evidence is much more detailed than that.

DD childcare centre

DD is a childcare centre at which the child attended until 2012. The father’s complaint was about the mother insisting upon the child following certain diets. The child was attending the day-care centre three days per fortnight. The parties could not even agree on the amount of time that the child should have been there.
It was at this centre that much of the focus of the parties’ attention was on the child breaking his arm. It is fair to say that the mother did not have a good relationship with the staff at the centre and despite significant cross-examination of her, it is not necessary for any finding to be made because it does not affect the determination I have to make. I have no doubt the mother would have been vocal, forceful, strident and difficult to deal with. That is not a disqualifying description for a parenting determination. Below I shall deal with the evidence of the director of the centre. The unfortunate relationship between the centre and the mother has, in my view, led the director to be a partisan witness against the mother.

Enrolment at school

Even at kindergarten, the parties could not agree where the child was to go to school. That necessitated an application to the Court and a hearing was listed on 16 December 2011. It was not until February 2012 that orders were made by the Court for the child to attend kindergarten in 2012 rather than school.

The 2012 Dr H report

In January 2012, Dr H reported that her diagnosis was that he had “pervasive developmental disorder – not otherwise specified”. I shall leave that issue to Dr H’s evidence but it is important to note that insofar as that was interpreted by the mother as a diagnosis of Autism Spectrum Disorder, the father saw it only as a provisional diagnosis.
What was clear was that the child was having behavioural problems at kindergarten and the parties could not agree on what to do about it.

Dietary disputes

In early 2012, discussions occurred about having the child assessed for allergies associated with food. The parties could not even reach agreement about how the testing was to be done, how it was to be paid for or who was to do it. On the father’s evidence, a doctor told them both that the child did not suffer from any allergies and was able to eat any foods yet the mother wanted to discuss why certain things had not been tested. Even there, the parties had a disagreement in front of the doctor which must have been very unpleasant for the doctor but it did not advance the matter.

The arm break

On 21 May 2012, the mother telephoned the father indicating that she had received a telephone call from the childcare centre to say that the child had injured himself. She said that the child may have broken his arm. Just exactly when this telephone conversation occurred is unclear. From the father’s perspective, he said that the mother had arrived at the centre but the mother said that she was leaving the centre having collected the child. On the balance of probabilities, I prefer the mother’s version.
There is no doubt that when the mother arrived at the centre, it was as a result of a call by the centre and according to the best evidence I have, she arrived very quickly after the call. To the extent that I was to infer that she was waiting for such a call, I do not accept that. I accept the mother’s evidence that she was not far away in any event.
The mother was carefully cross-examined about the fact that she seemed conscious of a broken arm but there is no doubt that the centre had witnessed the child fall earlier in the day. Whether that gave rise to a break in his arm, is not clear.
The mother was clear in indicating that her relationship with the childcare centre was not good and she very much blamed the centre for the break having occurred. It was clear that the centre was defensive no doubt because of my earlier description of the mother.
It was the father’s position that the mother may have accidentally broken the child’s arm before taking him to the centre and therefore she already knew he was in pain when she arrived at the centre upon receiving the call and went straight to deal with the problem. Having regard to the number of people who had observed the child that day and particularly the various physical activities he was involved in, that theory is implausible and I reject it.
Where things went badly awry was that the mother took the child to hospital where a diagnosis of a broken arm was made.
Even at the hospital, an argument occurred about what was the appropriate way to anaesthetise the child. The father’s evidence was that the mother was being difficult claiming that the child was autistic and that they needed to be careful with him. It beggars belief that the hospital should have to put up with two parents behaving in that way when their function was to try and treat an obviously injured child.
Unfortunately, the arm problem was more difficult than had been anticipated and surgery was required.
The child was eventually well enough to leave the hospital and go to his father’s home.
In terms of time sequence, the injury to the child occurred on 21 May and he went into his father’s care on 25 May.
The father said that on the Sunday after collecting the child on the Friday, he asked him to recount what had occurred on the previous Monday. The wisdom of that questioning still escapes me having regard to the child’s age and bearing in mind the time lapse. In any event, according to the father, the child told him that he had woken up and something had occurred and his mother had got really cross. He said that his mother had grabbed his arm and bent and twisted it and that it hurt a lot and that he cried. He said that when he went to kindergarten, the mother had given him medicine for the hurt and then dropped him off.
Having heard this, the father took the child back to the hospital and told them what the child had said. That led to a chain of events including involvement of the police and the Department of Human Services.
Counsel for the mother focussed very carefully upon the steps taken by the father and the things that he did. Before dealing with those, it is worth digressing for a moment to deal with what happened during an adjournment of the trial in June 2013.
Because of the absence of counsel for the father on holidays, the case had to be adjourned part-heard when I did not have sufficient time to conclude it in the allocated time. Just prior to the case resuming, the solicitor for the father sought a mention of the matter at his request, indicating that the father would no longer be represented. Thus, with one witness to go and final addresses, the father represented himself. In his final address, the father said that the cross-examination of him by counsel for the mother had been close and challenging in circumstances where he was in unaccustomed territory. He thought it unfair that his evidence was being so finitely examined when there were other matters about which he was being criticised by counsel for the mother. He said there was evidence to prove the mother’s assertions about him not telling police all of what the child told him were untrue. None of these matters seemed to be in his affidavit nor arose in the cross-examination of the mother, nor of his own re-examination by his counsel. I refused to allow him to address those issues having regard to the point at which the trial had reached. He insisted that he had told his lawyers about a conversation he had had with the police. I am not entirely sure what he told his lawyers but in my view, what he told the Court needs careful scrutiny because I consider he had plenty of opportunity to explain some of the concerns raised by the mother’s counsel in cross-examination of him.
I turn back then to that issue which concerns the sequence of events after the child came into the father’s care some days after the arm was broken.
The father spoke to Ms L of the childcare centre on the day after the arm was broken. He told her his theory was that he would not put it past the mother for the child to have broken his arm at home and she would not have known how to deal with it, but, knowing that the child was overtired, she had taken advantage of the opportunity of his falling over at the childcare centre. Thus, the father was suggesting to the childcare centre that the mother was looking for an excuse to avoid scrutiny of herself.
When cross-examined, the father acknowledged that he thought that that was what had happened to the child. He told psychologist Dr K, that was his opinion.
What is concerning is that the father told Dr K that the child had given him multiple accounts of what had happened but in his evidence, the father said that there were multiple accounts from people. When asked what the child had told him, he said that these accounts included falling off a chair, running and falling over and tripping over. None of those matters was referred to in his affidavit. When asked why, rather than give an explanation, the father said that he could not immediately recall reading them in his own affidavit. Cross-examination went on for some time about this issue. The father’s evidence on this subject was clear obfuscation and did him little credit. He acknowledged the notes of the Department of Human Services and the relevant police detective also made no mention of those accounts given by the child.
Because of that evidence, the father’s statement in final address wanting to expand on his explanation was inappropriate.
When challenged in cross-examination as to why the Department of Human Services and police were not told of the accounts, the father’s response was that he believed at the time that he was giving all of the information he had. He maintained his view that the mother did break the child’s arm but not deliberately and he had held that view from the Sunday that the child went into his care.
The father did not tell the Department of Human Services investigator about his theory. His explanation for that was that his comment to the director was a “throw away” comment. He said the seed of doubt in his mind about the mother was created by the childcare centre. He explained that another reason for not saying anything to the Department of Human Services or police was that this was all incredibly stressful.
The objective evidence in this case is important because of what occurred in the child being removed from his mother but also because of the long-term ramifications for the mother having regard to the father’s consistent belief. When the child demonstrated to the Department of Human Services investigator what had happened to him, it was filmed. The video was not played but the demonstration did not match the oral description nor, apparently, any medical explanation for such a break.

The father acknowledged that the medical opinion was that the child’s arm was broken not by twisting but rather by meeting an object of force. The father’s “theory” was therefore not supported by any objective evidence. I accept that he did have that theory and that he believed it but the obvious question is why?
Counsel for the mother accused the father of setting about to achieve the end result of establishing that the break was caused by the mother. He denied that. I accept his denial in the sense that I do not accept he did it maliciously but rather out of an exuberance that he had found the flaw in her parenting. That was most unfortunate for the child. Dr K and Dr B both thought that the change of residence would have been confusing for him. That, combined with the evidence of the childcare centre director, satisfies me that the ensuing six months period of time for the child was not as settled and unproblematic as described by the father. What all of this did was delay the focus of attention on the child’s needs. To a very large degree, the father must take responsibility for that more so than the mother.

The use of the child’s surname

In his evidence, the father pointed to the child’s hospital trip as indicative of his exclusion by the mother because the child was referred to under his mother’s surname. The inference the father sought from the Court was that the mother was deliberately excluding him in some way. It only became clear in cross-examination that the mother had handed a Medicare card to the hospital staff when the child arrived. The father acknowledged that fact. Why it was necessary for that evidence to be led remained unclear but it does not establish the mother’s endeavours to exclude the father from the child’s life.

The child’s first term at school 2013

When the hearing began in April 2013, it came to light that the school had expressed concern about the child’s behaviour. Until that time, the child had been in his father’s care. In cross-examination, the father acknowledged that he was unaware of the school’s problems such as the child using inappropriate language and pushing another boy onto the ground. The father had been to the school on about two occasions prior to March. As to why he thought the teacher had not told him anything, the father said that the principal had wanted all communication through him because of the court orders. I find that explanation implausible even if the principal had said that because of the child’s behaviour. For the school to remain silent does not make sense. Be that as it may, the father acknowledged that he was unaware of the child’s difficulties even though he told the Court that he had asked the teachers to tell him about problems.
The father swore his affidavit in March 2013 and consequently none of the behaviour was mentioned. His explanation was that he thought the school would “formalise” that problem. Counsel for the mother asked whether he thought that the school would get back to him if he had asked about conduct and his response was that he had assumed that the Independent Children’s Lawyer would present the evidence. These answers troubled me because he knew of the child’s past behaviour yet he had said nothing to the school about anticipated difficulties and made no inquiries. Unsatisfactorily, he left that issue to the Independent Children’s Lawyer. He said that he told his lawyers about the problems but they were not encapsulated in his affidavit. I found this evidence perplexing because it indicates that his focus was on the mother and the flaws in her parenting rather than on the problems of the child. It was not acceptable to simply say that the problems were not occurring in his home. That justification could not be acceptable because he knew from DD’s Ms L that there were problems in 2012 during the period that the child was principally in his care and as indicated further below, Ms L inappropriately attributed the recurring behaviour of the child to the absence of supervision of the mother. The child’s behavioural problems had clearly not gone away as the time approached for school to start. I find the father did not act responsibly.
The father thought that the child was a much better boy in his care but that he had regressed when supervision of the mother ceased. The father’s evidence about that was mischievous because he made no serious inquiries about what was occurring at the day care centre or at school.

Does the mother “coach” the child?

The father said he believed the mother was coaching the child to behave the way he was. He repeated that in cross-examination. I emphatically reject that evidence.
As to why the child says things, the father was unable to explain. He gratuitously offered that it was possibly because of past history. In the context of an allegation that the mother was coaching, the only inference open to me was that the father was saying that the mother for a long time had been deliberately orchestrating the problems for the child. Not only do I reject that but I find that it is not to the father’s credit that he says those things.

Do the parents say things in front of the child?

The pejorative language between the parents is unpleasant and each accuses the other of using it and at times in the evidence, each denied that use. The father acknowledged however that he had used the phrase that the mother was “sick in the head”. At that point in the cross-examination, the father was pressed for answers as to why he would say such a thing and ultimately, his explanation was that he was only human.
Ultimately, the father acknowledged that he was not proud that the events had taken the parties to the stage where they had spent thousands of dollars on legal fees yet the child’s problems remained the same.

Can consultation between the parties occur?

In respect to the findings I have made, I have grave doubts as to whether the parties can communicate at any civil level. I am comfortable in finding that it is not a one way street. As an example of the problem, in a telephone conversation as long ago as March 2010, the child spoke to his mother from his father’s home and said “Daddy took me away from you today”. The mother’s evidence was that the father started yelling and said “What the fuck have you been telling him?” The mother’s evidence then was that she heard the child start to cry and call out to her and the father’s response was “That’s enough” and hung up the telephone.
The father’s evidence was that he did not scream at the mother or act aggressively towards her and he could not remember any specific incident that evening save that the child spoke with the mother on the telephone.
The vagueness of the father’s response and the specificity with which the mother made the allegation, convinces me that it probably did occur and I so find on the balance of probabilities. It leaves me with a serious question about how these parties are going to parent this child in future.

Does (or did) the mother “project” on to the child?

There is no doubt the mother pursued an answer for the child’s behaviour. The many inquiries she made and the statements she made, looked very much like someone pathologising the child’s behaviour. A provisional diagnosis of the child was made but it was clear that it had to be reviewed. A second assessment by Dr H at the end of 2012 showed no signs of the traits in clinical observation. That was initially brushed over by the mother and treated as if no assessment had been made. The significance of this assessment was that the child had been living with his father for almost six months. A letter was written to the child’s school by the mother’s solicitor indicating that a diagnosis of autism had been made but it made no mention of the second assessment by Dr H. This was explained by the mother on the basis that with the diagnosis in existence, the child had entitlements to funding. The father accused the mother of “cherry picking” what she wanted to hear whilst at the same time, projecting her own problems on to the child so that he would be seen as disadvantaged.
The mother denied she was doing anything of the sort but acknowledged that she was still working on her parenting problems with Dr B. I am not convinced the mother can be accused of misleading the school because presumably, there would be little point where the father was the primary parenting figure at that time. That being the case, the school would have asked him about all of those things. Thus, the mother’s explanation about funding has a ring of plausibility about it.
The mother acknowledged she pathologised but not because of a commitment to establish that the child had autism. She constantly returned to the theme that she just wanted answers. Counsel put to the mother a long list of medical practitioners shown on a Medicare printout. The mother observed that she and the child shared the same Medicare card. I do not know, and the evidence was not called from, all of these professionals to establish that the mother was doctor shopping. I do not find that there is evidence of “doctor shopping”.
There is also a ring of plausibility about the mother’s position because Dr B said that the label or tag for the child was not important but rather identification of the problem and pursuing a commitment to a consistent solution. I accept that while the mother was relentless, she was looking for answers.
As for strategies, the mother said she relied upon Dr B and Ms M. Their evidence below suggests that is entirely what the mother does. Dr B was complimentary of the mother even if the process was incomplete. The mother acknowledged that she was also getting counselling after her visit to psychiatrist Dr E. Dr E thought the mother needed counselling and that seems to have been what she has sought.
In cross-examination, counsel for the father put to the mother that she saw all of the management problems of the child as being the father’s fault. Showing what I consider to be insight, the mother said that it was a joint problem and that was why she was seeking the diagnosis.
Thus, I find the mother was not on some curious mission to establish the child had autism.
Counsel for the Independent Children’s Lawyer asked the mother about her parenting strategies. She said she was addressing all of the consistent strategies. She then gave what I consider an insightful answer namely that it was not relevant to know why the child behaved as he did nor to interpret his feelings. Dr B seemed to think progress using that sort of logic was being made.

Some peripheral factual issues

The child being hit in the face

Another unnecessary litigious issue arose when the child came back to the mother and was seen, according to her, to have bruise on his face. There was considerable conjecture by the parties as to whether it was a bruise at all. The mother said she thought he had bumped himself when she first saw his face but changed that when she asked the child what had happened to him. Indicative of the state of the relationship between the parties, the child blamed his father for having hit him and so the mother went to the police.
Parents who have equal shared parental responsibility would be expected to communicate about such things particularly if an allegation by a child of the child’s age arose. The mother went to police because she wanted a “record of the incident” and at a point where she believed the father had hit the child intentionally.
The parties even had a dispute about what the doctor subsequently saw and what the child told the doctor. In my view, the issue is not about the bruise but rather the reaction of the mother that is relevant here. Why a parent would tell the police to retain a record is perhaps explained in many cases as what should happen if an investigation was warranted for the purposes of a criminal prosecution. That was never going to happen here. This was not such a situation but a welfare issue. Parents who therefore have the joint responsibility for their children would normally be expected to contact one another and find out what had happened. That did not occur here and I find such expected approaches are unlikely in the future.

Immunisation

I detected some criticism by the father and the Independent Children’s Lawyer of the mother for not having immunised the child. The mother was asked about it and she said she wanted to wait until the child was at school. She had past experience where there had been a negative reaction involving a family member and she thought that the triple antigen may have contributed to the mental developmental delay in that person.
There was nothing irrational about the mother’s views. They were thought out and researched. The Court has to be careful about imposing parenting standards on people.

How each parent views the other’s role

I have been critical of both parents. Both ignored the needs of the child but there are indications that this hearing has had a cathartic effect.
The mother was asked how the child would cope without a father. Insightfully, she replied “not very well”. She thought it would be “incredibly difficult” to go through life without a parent. She saw the child as being confused and having a sense of loss. Importantly, the mother then observed that the father’s attitude towards her was that she was a danger to the child. To a large extent, that is how the father conducted his case and it was particularly noticeable in his final address. Yet, in that address, the father offered the mother block periods which would have surely meant that he had sufficient confidence in her ability as a parent to care for the child. Sadly, he explained his proposal as being pragmatic rather than really a recognition of the child’s need for his mother in his life. Whatever he meant, I must conclude he did not view the mother as much of a risk. His position was that he could do a better job and that justified the differing time structure. In this case, that approach had very faint support in Dr Ky’s evidence but not much more.

Other witnesses

Ms L

Ms Lis the director of the childcare centre that the child attended up until the end of 2012. Her evidence was directed to two things. First, the conduct of the mother and secondly, to shed some light on the question of how the child broke his arm.
Ms L was not the person principally responsible for the child’s care in the centre but she was conscious of the involvement of the speech therapist with the child and she read emails about him as well as printing them to put them on his file.
In relation to the mother’s conduct, Ms L had a meeting with her at which statements were made about what the mother wanted for the child including about diet and Ms L noted a comment was made that the child was “autistic”.
Ms L had noted the child’s behaviour which she described as being, at times, violent and challenging. His language included words such as “fuck” and “bum bum” which was said in a pejorative way. She noted language of the child which, if a true reflection of what was going on in his respective parent’s household, indicated that each parent was making denigratory remarks about the other.
Ms L was concerned also that the mother maintained that in respect of the care of the child, the centre had been negligent. I have no doubt that is what the mother thought.
In my view, very little turns on this evidence.
The more significant of the two issues for which this evidence was called concerned the child’s broken arm. Ms L said that on the day after the child had left the centre with, what was then suspected to be, an arm injury, she spoke to the father who told her he had concerns about the mother “putting ideas in” the child’s head. She recorded in her notes comments made by the father about such things as:
·    The mother’s mental health;
·    The mother’s “fights” with him and his lawyer and the Independent Children’s Lawyer;
·    The mother had fights with her own lawyers and had been “kicked out of court” twice;
·    The therapist had said the mother may possibly have a personality disorder;
·    The mother had conditioned the child to “be autistic” and trained him to meet all the symptoms so that a paediatrician could so diagnose him; and
·    He would not put it past the mother that the child may have broken his arm at home and she would not have known how to deal with it, knowing the child was overtired, taken advantage of the opportunity of his falling at the childcare centre.
It was the last observation which gave rise to scrutiny about the father’s theory. I have already referred to that above.
After the child went to live with the father under to the Court’s orders, Ms L said that the contact centre did not observe some of the previous behaviour and even when it did occur, it was observed to occur less often. She noted that when the mother had attended the centre, the child resorted to baby talk yet that was not the case when he was with the father.
According to Ms L, after the mother’s time became unsupervised, the child reverted to defiance, baby talk and using the old pejorative phrases. She identified this period about which she had taken notes as September-October 2012. The difficulty I have is that the supervision of the mother did not cease until the end of November 2012.
The clear evidence of Ms L was that in the period of the father’s control and the mother’s limited role, things for the child improved yet when the mother’s role became unrestricted, things went backwards.
Ms L’s observations about the child’s behaviour could not have been inaccurate because she relied on what she and others saw and there is no reason for me to doubt the accuracy of those observations. However, it was the blaming of this behaviour on the mother which causes me to doubt the truthfulness of the witness.
In cross-examination by counsel for the father, Ms L tried to put her opinion in some context by saying that she was “really” going from “the top” her head. I reject that because of the fact that this evidence was scrutinised by a lawyer before it was presented to the Court.
What was clearly flawed was her opinion. Having regard to the relationship between Ms L and the mother, her defensiveness about protecting the childcare centre was understandable but her conclusion showed her partisanship. What I do find helpful however is her observations which do not support a conclusion that the child’s problems were necessarily environmental and particularly caused by the mother.

Mr R

Mr R is a chiropractor who was not called as an expert but rather as to his observations relating to a particular incident. He has dealt with the child since birth.
In the child’s early years, Mr R discussed various eating issues with the mother because he thought there was a gastric condition affecting the child.
Mr R noted regressive baby-like behaviour and also aggressive behaviour in the child. The mother told Mr R that she was questioning the possibility of Autism Spectrum Disorder.
It was in an appointment in 2010 that the mother told Mr R that the child had “disclosed sexual abuse” to her. Mr R then spoke to the child who told him about inappropriate behaviour of the father. The mother told Mr R that she thought the father had done what the child was alleging. I have no doubt the child did say what was recorded. I do not accept it had any meaning or foundation.
Little of what Mr R said was of assistance. That is not a criticism but rather an observation that things were said by the child that remain inexplicable.

Ms S

Ms S is a massage therapist who was a housemate of the mother for eight years until August 2011. This covered the period of the pregnancy of the child and she was physically present at his birth. She described the child as a child who was difficult to manage at times and that he developed extremely oppositional behaviour.

In her recommendations in 2012, Dr H said that the child would benefit from attending a structured early learning centre offering a range of structured learning opportunities with predictable routines and transitions.
Bearing in mind this was January 2012, Dr H then thought that such a suitable program would help the child to prepare for school in 2013 in particular in relation to social interactions, pragmatic language skills and play interaction with peers.
Many recommendations were made about programs that the child should have been involved in including assistance through an organisation called NK Services.
In respect of the parental involvement, Dr H highly recommended that the handover between the parents of the child occurred in a neutral setting less threatening to the child such as McDonalds or another café rather than the police station. Apart from being an expert opinion, commonsense dictates that that should have happened much earlier than it did.
Dr H noted that it was important to provide the child with an environment which was structured, calm and predictable. She said he would become anxious where there were forced or unexpected changes in his routine and she set out some of those examples.
Dr H opined that positive behaviour support should include instructions that were brief, precise and concrete and that they may need to be repeated. She said children on the Autism Spectrum rarely derived reward from being told that they were doing a good job or from a pat on the back and usually responded much better to tangible rewards which gave a strong message of having done well. There is evidence in this case of the mother’s involvement in that. The father’s evidence seemed more around creating boundaries.
Dr H then recommended the paediatric review by herself.
By the end of 2012, Dr H saw the child again. This time, the child had been the subject of the May 2012 incident and the subsequent court orders and had consequently been mostly living with his father.
Dr H said that whilst the child did continue to have some difficulties in interacting at an age-appropriate level with his peers, his skills had certainly improved significantly as the year had progressed. She said there were still significant discrepancies in the parental report as to the child’s behaviour and whereas the father found that behaviour easy to manage, the speech therapist had observed the child at the childcare centre where it was indicated that he still struggled in relation to reading social cues appropriately. It was said that his behaviour in the childcare centre had certainly decreased as the year had progressed but that seemed somewhat inconsistent with what the childcare director Ms L was saying.
Dr H observed a very big difference in the child’s presentation from earlier in the year. He seemed very settled and he responded to both the father and herself. She described him as calm in stark contrast to the time where there was a lot of immature clinging behaviour with the mother. Dr H did not observe any obvious or significant delays in his social communication nor any pragmatic language difficulties.
Importantly, Dr H said that it was hard for her to judge social interactions with peers because she had not observed him at the kindergarten but the report from the kindergarten indicated that his social skills were progressing.
Dr H then said that although the provisional diagnosis earlier described had been given, on the second assessment, autistic features were not evident.
Dr H noted that it was obvious that the child’s distress and confusion lay about the family situation and his avoidant behaviour in drawings indicated his anxiety around those issues.
It was Dr H’s view that the child could benefit from going to school. She set out what he needed. It is of significance that she said the child needed a primary school experienced in the management of children with individual differences affecting their social and emotional development. I am satisfied the father did not make it clear to the school just what individual differences the child had. I find that it may not have made any difference had they known because the behavioural traits would still have been evident but an approach to the now multi-disciplinary task force might have begun earlier. The father said that the school principal was aware of the conflicts between he and the mother and certainly aware of the court proceedings. I am not convinced that the school was able to connect the dots. The father’s focus was on ensuring the school dealt with the mother in a particular way and, having regard to how she interacted with the childcare centre, there was some justification in that. However, the child was disadvantaged by that approach. It is now September and the work that was required is really only just beginning in depth.
In Dr H’s evidence, she highlighted the fact that one of the difficulties for the clinicians was obtaining a history where there was discrepant reports from two parents. She said that the Autism Spectrum Disorder process was highly dependent upon history and observation. It was therefore important that the clinician had details about what the parents were observing. She said that if there was not a consistent description between the parents, it was a real challenge and the clinicians had to do more objective analysis. She made clear that that was a significant problem in this case.
As for the future, Dr H said that there was a necessity for ongoing assessment. She said the multi-disciplinary team needed to think about differential diagnoses because some Autism Spectrum Disorder symptoms could be shown in attachment and trauma and the child had been exposed to significant upheaval.
In relation to the question of the mother’s involvement and in particular, the criticism of her by the father, Dr H said that it was very difficult to tell how much of the child’s problem was congenital and how much was environmental and in particular, it was difficult to tease out.
Counsel for the father cross-examined Dr H about the varying diagnoses descriptions. Dr H said that assessing a child was not indicative in how the child was progressing in their world. She was cautious because she had not observed the child with his peers such as at school. She said a lack of judgment by the child as reported by the school was highly relevant. She candidly observed that children often do well in the doctor’s clinic and that may very well have accounted for why things had gone so well at the end of 2012.
Counsel asked whether a diagnosis of Autism Spectrum disorder was necessary. Dr H said it was difficult to be sure because sometimes it was more useful just to focus on how the child functioned. There was little doubt the child has developed mental problems and high levels of anxiety. She said those were contributing to his functioning difficulties. Trying to pursue a diagnosis was simply missing the point. She said what the child needed was stability, behavioural management and not an Autism Spectrum Disorder diagnosis.
In relation to the question of her first diagnosis, Dr H thought that using what the school had said in recent weeks of the year backed up the diagnosis.
As for the child’s varying behaviour with the respective parents, Dr H saw nothing unusual about that. She said of the two parents, he would be more inclined to underplay one and go the other way with the other but she acknowledged that the father handled the child well.
Most importantly, Dr H had the benefit of the reports of the teacher and she described what was happening to the child not to mention the children around him, as disturbing.
In relation to the question of what the child could adapt to in terms of changing between parents, Dr H had little hesitation in saying that so long as there was a clear picture for the child, he would adapt.
Dr H’s evidence was extremely helpful.
In relation to changeover, Dr H noted that any change may be unsettling for the child for a day or two. She thought that it was better for the child to have block time with each parent and she suggested a minimum of two or three days with one parent before a changeover. She was not troubled about school changeover providing the child was given a very clear schedule and timetable. She said it was important for the child to know what to expect.

Ms M

Ms M is a speech therapist who is part of the multi-disciplinary team. She is working with the child and has had considerable involvement with him including during 2012 in the childcare centre.
Ms M indicated that in addition to speech, her profession dealt with social communications.
Ms M was able to tell me of her discussions with the mother and nothing I heard indicated the Court should be concerned about the mother’s parenting.
Ms M recommended that the area that needed working on was social skills and structure. All of that was part of the discussions that Ms M proposed to have with the teachers and then she would feed the information back to other team members and they would collectively come up with a plan.
As late as 1 August 2013 Ms M made an observation of the child at the school. I do not propose to set out what she observed save to say that it was disconcerting and clearly indicated that the child’s behavioural problems have not gone away. Ms M recommended that the child be given a specific seat at a specific table and that he effectively be isolated by using a mat to keep him away from problems. She recommended a reduction in choices and a variety of other things which indicate that much work is yet to be done.
In addition to the work of Ms M, another member of the team is Ms C who is an occupational therapist. She observed much the same sorts of things that Ms M did in August when she attended the primary school and she has now made recommendations about what needs to be done to assist the child.
It is important therefore to note that to the extent this case was run along the lines that the change in the child’s residential situation after the arm breaking incident assisted him and gave him more structure, the evidence of the experts as late as August would indicate that something has gone wrong. To the extent that the father might point to the fact that those problems were as a result of the mother not having supervised time with the child, there is no evidence that that is the case. The sort of behaviour that was witnessed in the childcare centre in 2012 is still being repeated as late as August 2013 in the school. The evidence of Dr H would not enable me to connect that behaviour with unsupervised time by the mother.

Dr B

Dr B is a clinical psychologist whose qualifications were not disputed. In her clinical practice, she largely focuses on the diagnosis and treatment of children on the Autism Spectrum.
In the lead up to the final hearing, there was controversy about Dr B’s role because she was assisting the mother with parenting issues insofar as they related to the child. That controversy was still evident in the father’s cross-examination of Dr B right at the end of the case when he asked about whether she felt awkward giving evidence seeing that she had held a professional session with the mother during an intervening adjournment period. Before that intervening adjournment, Dr B had been in the witness box giving evidence. Dr B responded by saying she upheld her oath. Having watched her demeanour and her responsiveness to questions, particularly by the father, I found her to have been professional, child-focussed, objective and helpful. I accept her evidence as an expert.
Dr B’s work is best seen in the context of the team approach. She was able to tell the Court of the various roles each of the other professionals fulfilled. Having regard to the child’s problems, the evidence of Dr B’s work was impressive.
Dr B acknowledged the acrimonious parental relationship. In the history used by her, much of the material provided by the mother had not been challenged by the father’s counsel. When the father lost his counsel and took over the cross-examination of Dr B himself, he raised issues which had not been challenged when the mother gave evidence. I disallowed some of those questions.
In 2011, the father reported to Dr B that he was not experiencing any of the behaviours reported to be seen by the mother. To the extent that there were behavioural difficulties, the father told Dr B they were the outcome of the atmosphere of tension at handover. He went further and said he believed the mother was coaching the child to so behave. In her evidence, Dr B doubted the capacity of the child to be so coached. I agree.
The child was also reported in late 2010 as having behavioural difficulties such as bossing other children and being aggressive. The father told Dr B that the child said to him that his mother told him to hit other children. Those statements were made in 2011 yet some of that behavioural difficulty is still being witnessed in the classroom.
Dr B said that at school, the child was still aggressive towards other children but not in a malicious way and the teacher was learning the strategies. The school expressed concern about the stress upon the teacher as well as the protection of other children.
The tests applied to the child by Dr B showed him a very intelligent boy whose general cognitive ability was in a range such that it exceeded the ability of 96 per cent of the children his age. Dr B said that in 2011, diagnosing Autism Spectrum Disorder was not an easy task given the inconsistencies in the historical reports of the parents. A similar observation was earlier made by Dr H.
Dr B thought that there were enough features to warrant a full assessment by the multi-disciplinary team. That approach was indeed taken. Dr B reiterated her view that the child was on the Autism Spectrum but like Dr H, thought what it was called was largely irrelevant.
Because of the child’s language skills, to obtain any financial assistance, the child had to come under the category set out in what she described as a severe behavioural test. However, whatever the name of the problem, Dr B had no doubt of its existence. When the father thought that the spectrum diagnosis was provisional, Dr B did not agree. That led to Dr B discussing issues with the school recently.
Earlier in 2013, Dr B had conducted sessions involving the child and the mother and my clear understanding is that the mother was learning coping and management skills as things went along.
Counsel for the Independent Children’s Lawyer described the mother’s parenting skills as still in that learning phase and Dr B agreed there was more to be done. Having regard to the progress made the concerns expressed by Dr K and to some extent, Dr E, can be ignored.
In June 2013, the child was observed at the school by Dr B. He was described as unaware or lacking concern for the emotional responses of others and his interactions with teachers and peers alike were the same. He was seen to be seeking sensory input.
By August 2013, the aggressive behaviour at school was still witnessed. Dr B made recommendations about how to deal with that behaviour. That was part of the disciplinary team effort.
The father asked Dr B many questions some of which were convoluted but the import of which was that the behavioural problems of the child were a reflection of the mother’s difficulties including the borderline personality traits observed by Dr E. I do not accept, and nor did Dr B, there was a justification for that view.
The father made clear by his cross-examination that he objected to Dr B being involved in helping the mother because she was supposed to be the expert giving advice and evidence about the child. What Dr B said (and I would have thought obvious) was that assisting the mother was helping the child. The father’s suspicion of and lack of confidence in Dr B, was palpable. He asked about parenting capacity but Dr B appropriately responded that she looked for empathetic style and the parent doing no physical or emotional harm. She saw that in the mother.
The father suggested that the work Dr B was doing needed to be based on assumptions that were correct. Dr B studiously avoided being drawn into the issues of parental conflict. I accept her evidence that she was troubled about the discrepancies between the parenting histories. Be that as they were, Dr B thought she had enough information to proceed to work with the child.
It was obvious that Dr B thought that the child had regressed since 2012 but she explained the transition to school had contributed.
The evidence of Dr B about the mother was enlightening. In mid-July 2013, when the time the mother was spending with the child was increased, she was still witnessing behavioural problems. I record Dr B’s unchallenged evidence that the mother’s anxiety was noticeably higher than previously seen but she was open to raising difficulties and problem-solving. In that context, it is important to note that Dr B said her recommendations were made on the level of functional impairment. Her observations were that the child was well kempt as was the mother and the child was happy with her. Thus, two important conclusions can be drawn from Dr B’s evidence. First, the problems of the child need urgent attention and the solutions are apparent. Secondly, although the mother is still learning the parenting skills necessary to care for a child like the child, the signs are positive.
In her final evidence, Dr B said that she was concerned that all of these solutions were hard work and required determination but the child also needed time to relax because he became very tired. Dr B was clearly not enthusiastic about the child being in after school care. Whilst it is a necessity for most parents, my concern is that the child has very special identifiable needs. Those needs require a consistent response from the parents but I doubt that it is possible particularly after hearing the father’s cross-examination of Dr B.
Importantly, Dr B’s evidence along with that of Dr H, enables me to tailor orders which will ensure significant involvement by both parents but particularly the mother.

Statutory matters

Part VII of the Act sets out what a court is to do when it is required resolve a parenting dispute. Invariably, the determination results in orders. That has happened in this case before and they have generally not given certainty to the child’s life.
The Act sets out the objects and principles which guide the Court in respect of all of its deliberations under Part VII. Those objects and principles require the Court to ensure the best interests of children are met by protection from harm and ensuring that children receive adequate and proper parenting to enable them to achieve their full potential. Adequacy of parenting must take into account physical and mental ability, socio-economic circumstances and finances. So too, what is “proper” parenting is subjective but the common thread that runs through Part VII is that parents should focus on the needs of their children. Those include the provision of physical and emotional needs along with security and protection from various forms of harm. For example, s 60B(2)(c) requires the Court to note the intention of the legislation is that the parents of the child should jointly share duties and responsibilities about care, welfare and development. There has been little or no sharing here.
Having regard to what has happened to the child over his short life, the litigation has been damaging for him. In what follows, I shall consider all of the statutory questions in the light of how things have not happened for him and how future orders can alleviate all of those problems.
On 30 June 2009, the parties agreed to orders that they have equal shared parental responsibility. That agreement no longer stands.
By virtue of the order in 2009, each of the parents had all of the powers, responsibilities and authority which by law, parents have in relation to a child (s 61B).

Now each parent wishes to remove the other parent’s power, responsibility and authority.
Because each parent seeks a parenting order, when making such an order, the Court must apply a presumption that it is in the child’s best interests that his parents have equal, that is, exactly the same, power, responsibility and authority. That presumption is rebutted if the Court reasonably considers there has been abuse (in its various forms) of the child or family violence. Having rejected the suggestion that either parent abused the child, the question remains as to whether there has been family violence. Family Violence is defined and in this case, there is evidence of an assault by the father on the mother. Whether that was accidental or not, I was not urged to make any finding. In my view, it would not be appropriate to mandatorily rebut the presumption.
The presumption may be rebutted if the Court considers that it would not be in the child’s best interests for his parents to have that equal sharing of the powers and responsibilities (s 61DA(4)). Some guide to how that should be approached can be found in s 65DAC which sets out the parties responsibilities where an order for equal shared parental responsibility is made. The words used are “consult” and “make a genuine effort to come to a joint decision” about major issues for the child. In six years, that seems rarely, if ever, to have happened. Some of the findings I have made have been critical of the father because he rejected the mother’s approaches about finding out the cause of the child’s problems. Those were health issues of a major nature. The mother too did not fulfil s 65DAC when she made accusations about inappropriate behaviour against the father without consulting him. Similar problems have been, and I suspect will loom, about education.
The exercise of the discretion in s 61DA(4) should only be exercised where the Court is satisfied that the child’s interests about such things as health, education or religion would be disadvantaged or perhaps prejudiced because consultation would not occur and consequently decisions would become unilateral or not made at all.
It is a very serious thing to remove all of the responsibilities, powers and authorities of a parent in relation to their child where there is a good relationship between the parent and the child and where there is a strong desire for the parent to be involved. The Court needs to separate out the parental conflict from the desire to fulfil parental obligations and see whether the child would be disadvantaged if an order in favour of one party was not made.
Absent the parental conflict and the poor communication, the evidence of Dr K, Mr P and Dr B supports the conclusion that both parents not only dearly love the child and have his interests at heart but also that they can carry out the responsibilities and authority vested in them as parents. That includes the mother in relation to issues of medical treatment on the basis her pursuit of a medical explanation not unreasonable. Whilst her “magical thinking” as it was described by Dr K, may not be the way many parents would pursue an answer, I would not be prepared to criticise her style of parenting at a point where neither parent knew that the child’s behavioural problems were real and no-one was providing answers. The father’s dismissal of the mother’s behaviour because he did not see or acknowledge the child’s problematic behaviour also indicates his peculiar way of parenting. In both cases, the issue was about the parental conflict which has given rise to the parents ignoring the ideas and ideals of the other and doing their own thing.
I should not find that the duties, powers and authorities of either parent should be removed unless satisfied that it is contrary to the child’s best interests because consultation would not occur. I do not find that to be the case here. From the mother’s perspective, the evidence does not support the conclusion that she acted unilaterally and if she had, it would be understandable after being dismissed by the father. From the father’s perspective, his reticence to accept that the child had a serious problem must now be seen in the context of behaviour witnessed by the mother but which is now being seen widely.
Consultation is not necessarily something that needs to occur face to face particularly because, in relation to major long term issues (as defined in s 4), the parents can write to one another as they seem to have done in the past. I accept that they will never like one another and that their communication will be at best, peremptory, but I could not say that either would prejudice the child.
The problem arises when an impasse arises. The solution is that if the parties disagree with Dr H about the treatment aspect, the parent who agrees with the prognosis should be empowered to make the decision. That will obviously not resolve issues such as schooling but there are years ahead for that problem to be worked out.
Equal sharing of parental responsibility should therefore remain.
There are statutory requirements that follow from an order for equal shared parental responsibility. It may not be necessary to deal with them here because there is already such an order in place but to the extent that it is necessary, I propose to consider that pathway anyway.
As the High Court made clear in MRR v GR [2010] HCA 4; (2010) 240 CLR 461, the presumption requires a consideration of whether equal time would be in the the child’s best interests and reasonably practicable pursuant to section 65DAA(1). Equal time, which does not mean week about, was not something considered by the experts. Dr K thought that contact several times a week was what was needed by the child with his mother. Dr H was not concerned about various changes so long as the child had the opportunity to understand what the regime was.
It is then necessary to turn to section 60CC of the Act in order to determine the best interests of the child.
The first of the primary considerations is the benefit to the child of having a meaningful relationship with both parents. The evidence supports the conclusion that each parent will provide a meaningful relationship for the child albeit in different ways. There is certainly some equivocation by Dr K, supported by the Independent Children’s Lawyer that there is a difference in parenting capacities but in my view, that difference is largely subjective about style. The concerns about the mother’s parenting skills are being addressed by Dr B and that seems to be working for the child. As has been said in the authorities, this is not about the optimum relationship but rather the best that can be provided for the child.
The factors also require the Court to contemplate the need to protect the child from physical or psychological harm, or exposure to abuse, neglect or family violence. I have dealt with that in the narrative above.
An examination of the additional considerations set out in s 60CC(3) taking into account the findings on the evidence above enables the Court to say:
·The child’s views should not be given any weight having regard to his age, level of maturity and importantly, his current state of health;
·The nature of the relationship of the child with each parent as seen in the evidence suggests that the child’s attachment to each parent is strong or was not superior in one or the other. Nothing more can usefully be said about that. The same must be said about the strength of the relationship between the child and his parents. It will be remembered that the primary attachment had always been to the mother and the 2012 orders changed all of that. Until that time however, the child went happily to his father and nothing I heard suggested the relationship was not sound;
·The willingness and ability of each of the parents to facilitate a close and continuing relationship between the child and the other parent is a matter which has significance. The very nature of these combative proceedings (and not just this trial) indicates that whatever platitudes either parent might articulate about their desire for a good relationship between the child and the other parent, their conflictual relationship indicates that they would cut the other out of their child’s life if they could. The only solution to that dilemma is to make clear that each must participate in the child’s life in the regime set by the Court;
·Because of 60CC(3)(d) of the Act, the Court needs to contemplate the “likely” impact of any changes. The evidence of the expert witnesses indicated what the child went through in 2012. However, because of his disorder, provided he is given a clear schedule, he will manage well. The child is an intelligent child and needs to know what is happening but he also needs time to settle. I have contemplated what will occur if he continues to stay in after school and holiday care. As the expert said, it is not ideal but providing he is prepared for those arrangements, he will manage. Because I accept that holiday programs may be a necessary part of working parents’ lives, I intend to order that if the father (or for that matter the mother) has to put the child in such a program, the parent allow the other parent the opportunity to care for the child before that arrangement commences. I do not see a similar problem for the short terms after school because although after-school care may be tiring, the regime I am contemplating will limit those opportunities;
·For the purposes of s 60CC(3)(e), there is no real practical difficulty and expense in the proposed orders other than that the handover point has been a problem because of such dreadful options were contemplated in the past such as a police station. That will be rectified by the orders;
·The capacity of the parents to provide for the child’s needs has been a litigated issue. I have set out the parties’ respective perceptions and my consequential findings. Neither party demonstrated superiority in terms of capacity to provide for the child’s needs;
·Section 60CC(3)(i) concerns the parental attitude to the child and responsibilities of parenthood each demonstrated. As I have indicated, each parent should have handled the sexual abuse statements better than each did and the father’s response to the broken arm incident was poor parenting. I do accept to some extent that this was a stressful and unpleasant time for the father but he handled it poorly because of his lack of respect for the mother as his child’s parent.
·I have dealt with family violence issues.
·Section 60CC(3)(l) requires the Court to contemplate an order that would be least likely to lead to the institution of further proceedings. That is critical in this case. Two fundamental things must be said. First, the whole of the child’s life has been involved with litigation and conflict. Secondly, the expert evidence strongly supports a conclusion that the relationship between the father and the mother will not change. The orders need to be such that the child gets an opportunity to enjoy both parents and to learn from them even if they will not contemplate the impact on the child.
·The difficulty in this case is that it is a particularly hard case because, regrettably, no matter what this Court does, the child cannot have the time with each of his parents which he deserves and from which he would benefit if they worked co-operatively. The absence of that possibility means the Court must address and find a way for the best outcome for the child.
In my view, the parents should continue to share decision-making responsibility but the Court needs to determine the mechanism for it to occur. The parents should share time but the Court needs to determine the amount. In my view, it is in the child’s best interest that he spends frequent but relatively short time with each parent in an environment where conflict is avoided. The routine needs to be set and as I have set out, equality should not be seen as the panacea; it is the routine that is critical and that means the fortnightly cycle should only run during school terms. Holidays are a different consideration. During the terms, it is the pattern of time and sharing within the cycle rather than a mathematical calculation that is important. I make orders accordingly.

I certify that the preceding Three Hundred and Eleven (311) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 13 September 2013.

Associate:

Date: 13 September 2013

[2013] FamCA 720

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