Hutchins and Blaney

FAMILY COURT OF AUSTRALIA

HUTCHINS & BLANEY

[2010] FamCA 1110

FAMILY LAW – CHILDREN – Child related proceedings – child suffers from an autistic spectrum disorder – allegations of drug abuse by the father – whether there is a risk of harm to the child in the care of his father – limited period of continued drug testing by the father – mother to have sole parental responsibility in relation to the child’s health and education, with provisions for consultation with the father

Family Law Act 1975 (Cth)

APPLICANT:

Mr Hutchins

RESPONDENT:

Ms Blaney

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

1793

2008

DATE DELIVERED:

3 December 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

8-11 November 2010

REPRESENTATION

APPLICANT:

In person

RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Ladopoulos

Orders

Any prior Order inconsistent with these Orders is hereby discharged.
The mother have, subject to her compliance with the obligations set out below, sole parental responsibility for the child, T, born … February 2007 (“the child”) in relation to:
(a) the child’s education and
(b) the child’s health.
The mother and father have equal shared parental responsibility otherwise for all other matters relating to the child.
Save in the case of an emergency, the mother is to give the father notice of any major decision she proposes in relation to the child’s education and the child’s health and the father shall, within forty eight (48) hours of receipt of such notice, inform the mother of his views in relation to the proposed decision.
In the case of the selection of school for the child to attend the mother shall give the father at least six (6) weeks prior notice of her proposal and the father shall respond to such notice within three (3) weeks, giving the mother his views in relation to the proposed decision and any request by him for mediation on the decision.
The mother shall, if the decision is not urgent, submit any disagreement between the parties to mediation and, in the event that does not resolve the difference, nevertheless take into account in her decision-making any views expressed by the father prior to making a decision in respect to the exercise by her of sole parental responsibility in the circumstances provided in Order 1 herein.
In the event that the parties cannot agree and mediation if undertaken does not resolve the difference between the parties, then the mother shall have sole decision-making power in relation to the matter relating to health or education of which she has given notice.
Subject to Order 10 of 8 November 2010 and unless otherwise agreed between the parties, the child spend time with the father as follows:
(a)       during school term:
(i)each alternate weekend from 7.00 pm on Friday until 5.00 pm on Sunday
(ii)each Tuesday from after pre-school or school until 6.00 pm.
(b)during school holiday periods at the end of Terms 1, 2 and 3 of each school year:
(i)for school holiday periods which commence in 2011 for three (3) consecutive days (2 nights) in each such holiday period as agreed between the parties in writing or failing such agreement from 10.00 am on the first Saturday of the school holiday period until 5.00 pm on the following Monday
(ii)for school holiday periods which commence in 2012 for four (4) consecutive days (3 nights) in each school holiday period as agreed between the parties in writing or failing such agreement from 10.00 am on the first Saturday of the school holiday period until 5.00 pm on the following Tuesday
(iii)for school holiday periods which commence in 2013 and each year thereafter for eight (8) consecutive days and seven (7) nights in each such school holiday period as agreed between the parties in writing or, failing such agreement, from 10.00 am on the first Saturday of the school holiday period until 5.00 pm the following Saturday.
(c)       during school holiday periods at the end of Term 4 of each school year:
(i)
for school holiday periods which commence in 2010, from

6.00 pm on Christmas Day until 6.00 pm on 28 December
(ii)for school holiday periods which commence in 2011, unless otherwise agreed between the parties in writing, from 6.00 pm on 24 January 2012 until 6.00 pm on 27 January 2012
(iii)
for school holiday periods which commence in 2012, from

6.00 pm on Christmas Day until 6.00 pm on 29 December
(iv)for school holiday periods which commence in 2013 and each year thereafter, for fifteen (15) consecutive days (14 nights) in each such school holiday period, as agreed between the parties in writing or failing such agreement as follows:
A.where the end of Term for the school holiday period commences in an even numbered year, from 6.00 pm on Christmas Day until 6.00 pm on 8 January and
B.
where the end of Term for the school holiday period commences in an odd numbered year, from 6.00 pm on

12 January until 6.00 pm on 27 January.
(d)on the child’s birthday as agreed between the parties in writing or failing agreement as follows:
(i)from 9.00 am until 6.00 pm if not a school day or
(ii)
from after pre-school or school, as the case may be, until

6.00 pm if the child is at school or pre-school that day.
(e)on the father’s birthday as agreed between the parties in writing or failing agreement as follows:
(i)from 9.00 am until 6.00 pm if not a school day or
(ii)
from after pre-school or school, as the case may be, until

6.00 pm if the child is at school or pre-school that day.
(f)on Easter Sunday as agreed between the parties in writing or failing agreement from 9.00 am until 6.00 pm.
(g)on up to four occasions each year from 9.00 am until 6.00 pm provided that:
(i)the father provides the mother with at least three (3) weeks notice in writing of the date of any such occasion and
(ii)any such date does not fall on Mothers’ Day or on the mother’s birthday.
(h)       at such other times as may be agreed between the parties.
Notwithstanding Order 8 above, on the following occasions of special significance the child shall spend time with the parties as follows:
(a)the child shall not spend time with the father on the weekend which includes Mother’s Day but in substitution the child shall spend time with the father on the following weekend at the same times as set out in Order 8(a) above
(b)the child shall spend time with the father on the weekend which includes Father’s Day at the same times as set out in Order 8(a) above but in substitution the child shall not spend time with the father on the following weekend
(c)both the mother and the father shall be entitled to attend events involving the child including:
(i)sporting fixtures
(ii)extra-curricular activities that allow for parental attendance
(iii)school functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent/teacher interviews, canteen duties and social functions and
unless the parties otherwise agree, the parent who has the child in their care on the day of such activity will be responsible for their day to day care at such event and the child’s transportation to and from the event.
Unless otherwise provided in these Orders, for the purposes of the child spending time with the father the mother will deliver the child to the father’s residence at the commencement of his time with the child and the father will return the child to the mother’s residence at the conclusion of the child’s time with him.
For a period of six months from the date of these orders the father shall undergo monthly supervised urine drug testing and provide a copy of the results of such tests to the mother within seven (7) days of receiving the results.
The mother shall be responsible for and pay for the costs of the drug testing referred to in Order 11 above.
The child’s time with the father be suspended in the event that:
(a)the father does not provide the mother with a copy of the drug testing results in accordance with Order 11 above or
(b)the results of a test are positive.
Pursuant to Section 65L of the Family Law Act 1975 compliance with these parenting orders is to be supervised for a period of twelve (12) months by a Family Consultant nominated by the Manager, Child Dispute Services of the Sydney Registry of the Court and the supervisor shall give any party to the parenting orders such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of, the parenting orders.

NOTATION:

The Court notes that on 8 November 2010 Orders were made by consent as follows:

The child live with the mother.
The mother shall ensure the father is kept informed of:
(a)any medical problems or illnesses suffered by the child while in the mother’s care which require admission to hospital or specialist medical treatment
(b)any medication that has been prescribed for the child
(c)any social, school or religious functions which the child is to attend
(d)the residential address of the mother and particulars of the others who may reside with the child and
(e)any other matter relevant to the child’s welfare.
The father shall ensure that the mother is kept informed of:
(a)any medical problems or illnesses suffered by the child while in the father’s care which require admission to hospital or specialist medical treatment
(b)       any medication that has been prescribed for the child
(c)       any social, school or religious functions which the child is to attend
(d)the residential address of the father and particulars of the others who may reside with the child and
(e)       any other matter relevant to the child’s welfare.
For the purposes of communicating information between the parties the mother and the father shall:
(a) communicate by telephone matters of an urgent nature and otherwise
(b)communicate by email or SMS about day to day matters including arrangements for each party to spend time with the child.
Each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the child and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the child.
The mother be at liberty to take the child on an overseas holiday each year for a period of four (4) to six (6) weeks but is restrained from taking the overseas holidays during the months of December in 2010 and each even numbered year thereafter.
The mother provide to the father not less than thirty (30) days written notice of her intention to take the child on an overseas holiday or such other short period as agreed between the parties and at that time to provide to the father:
(a)       the proposed itinerary
(b)       places of residence of the child overseas together with
(c)       contact telephone numbers.
The mother is to facilitate any telephone call the child might wish to make to the father during that period.
The mother is to notify the father of any change in those particulars during the period of her overseas absence which involve travel to a country other than those mentioned in the itinerary.
The father’s time with the child during any overseas holiday period be suspended.
The father be entitled to make up contact time with the child for that period of contact missed by virtue of the child being on an overseas holiday with the mother, the dates for which are to be agreed between the parties.
The mother inform the father in writing as soon as practicable of any initial specialist medical appointments with any psychologist, psychiatrist, counsellor or therapist (hereinafter referred to as “consultant”) in relation to the child.
The mother do all acts and things to ensure that the father is provided with all reports by any such consultant.
The father be permitted to attend on such appointments, such attendance or attendances to be at the sole discretion of any such consultant.
Within 14 days of these orders and within 14 days of the child’s subsequent enrolment at any pre-school or school the mother do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the child may attend from time to time, that school forward directly to the father copies of all the child’s school reports and merit cards, any written material pertaining to the child’s academic and extra curricular activities.
The mother furnish to the father within seven (7) days of receipt of same copies of all order forms for school photographs of the child.
During any period referred to in these orders, in the event of the child being hospitalised or receiving medical attention, the parent spending time with the child shall notify the other parent as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital.
The parties forthwith enrol in, attend and complete a course to deal with the issue of communication between the parties, as recommended by the Independent Children’s Lawyer.
The process to be used for resolving disputes about the interpretation, implementation or enforcement of these orders is as follows:
(a)the mother and the father shall do all things necessary to attend counselling or mediation with an organisation recognised under the Family Law Act 1975 or by the Commonwealth Attorney-General or
(b)the mother and the father shall participate in family dispute resolution with a person authorised under section 10G of the Family Law Act 1975.
Before an application is made to a court for a variation of these orders to take account of the changing needs or circumstances of the child or of the parties, each party is to take the following steps:
(a)the mother and the father shall do all things necessary to attend counselling or mediation with an organisation recognised under the Family Law Act 1975 or by the Commonwealth Attorney General or
(b)the mother and the father shall participate in family dispute resolution with a person authorised under section 10G of the Family Law Act 1975.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1793 of 2008

MR HUTCHINS

Applicant

And

MS BLANEY

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

The proceedings before the Court are proceedings with respect to the parenting of a young autistic boy, T (“the child”) born in February 2007 and currently aged 3 years 9 months, who is beloved by both his parents who have fallen into difficulties during their married life and which difficulties continue.
The major issues between the parties relate to decision making about therapy undertaken to assist the child with his autistic spectrum disorder (“ASD”) and decisions in relation to his schooling. In her Application the mother sought sole parental responsibility and it became clear at the trial that these areas of parental responsibility were of primary concern.
The second issue was what time the child should spend with the father and whether that time should be supervised.
Related to that latter question it seems that the father has had an unenviable history of taking illicit drugs, although he asserts that he has not taken any illicit substances since separation. However, the mother says that this is not true and that in January of this year and again in April the father was under the influence of drugs whilst the child was spending time with him on the weekend.
The father denies the relapse and says in relation to the latter occasion that he was a victim of overwork during the week which was compounded by a late night on the Friday before the weekend on which he had the child in his care and when he attended a farewell function at his work, where he consumed alcohol.
He denies that he was drug affected and says that he felt unwell and asked the mother to take care of the child which he said was a responsible reaction in the circumstances.
The mother, on the other hand, has no doubt that his facial expression when she arrived to pick up the child and his unsteadiness were symptoms of an excess of illicit drugs. She cannot conceive that they might be a result of the matters described by the father.
By reason of the mother’s inability to accept the father’s explanation she says she is made to feel anxious and concerned about the safety of the child in the father’s care and that for this reason his time with the child should be supervised.
The mother also sought a continuation of the drug testing regime which the father has undertaken since 2008, for a further 18 months. The father opposes the order and indeed any order for the continuation of drug testing which he says is time-consuming and demeaning and in any event unnecessary.
A single expert, Mr K, has given evidence in relation to the father’s substance abuse. In addition, a Consultant Forensic, Child and Family Psychiatrist, Associate Professor Q has provided a Single Expert Report.
The Independent Children’s Lawyer proposed a limited sole parental responsibility order in favour of the mother in relation to the child’s education and therapy but that there be no supervision of the father’s time with the child but that he continue to undergo drug testing for a period of 12 months.
The father proposed that the parents have joint parental responsibility and that there be no provision for drug testing or supervision and that he spend time with the child each alternate weekend with a provision for increased time in the school holidays.

Background Facts

Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
In 1969 the mother was born in Spain and is currently aged 41 years.
In 1976 the father was born in New South Wales and is currently aged 34 years.
On 13 July 2001 the father was discharged from Royal North Shore Hospital following treatment for recurrent vomiting, anxiety and depression.
Between 2001 and 2003 the father underwent a period of out-patient treatment at a Sydney clinic.
In 2002 the father had two admissions to the G Centre, a residential drug treatment agency.
In February 2003 the mother moved to Australia to take up employment.
In March 2004 the mother and father met.
In April 2004 the mother and father commenced a relationship.
In March 2005 the mother returned to Spain.
In May 2005 the father went to Spain and in that month also obtained a United Kingdom working holiday visa.
In November 2005 the mother was offered employment with an Australian company and the father sponsored the mother’s visa application.
On 19 December 2005 the parties came to Australia and then separated and the mother returned to Spain.
On 29 January 2006 the mother returned to Australia and after a time acquired a rental property in Sydney.
At Easter 2006 the parties recommenced their relationship.
In May 2006 the mother fell pregnant.
In June 2006 the parties commence living together at the mother’s rented property.
On 17 January 2007 the parties moved to rented premises in the inner suburbs.
In February 2007 T was born and is currently aged 3 years and 9 months.
On 27 April 2007 the parties moved to another inner city suburb.
On 15 May 2007 the maternal grandmother arrived from Spain to assist the mother with the child’s care.
On 6 June 2007 the father asserts that the parties separated.
On 7 June 2007 the father underwent a urine drug screen test for amphetamines, benzodiazepines, cocaine metabolites, opiates, cannabinoids and methadone metabolites, which was negative.

On 7 July 2007 the mother alleges that the parties separated.
On 8 August 2007 the father was admitted to Hospital.
On 1 November 2007, the mother asserts she was advised by an Immigration Agent to leave Australia, request the cancellation of her de facto visa and apply for a working visa. The child obtained a Spanish passport.
On 24 November 2007 the mother and the child left Australia and travelled to Spain.
On 3 December 2007 the mother’s prior visa was cancelled and she applied for a working visa.
On 31 December 2007 the mother was granted a working visa and the child was issued an Australian passport.
On 11 January 2008 the mother and child returned to Australia.
In March 2008 the mother was granted an Australian permanent resident visa.
On 20 March 2008 the father underwent urine drug screening which was negative for amphetamines, benzodiazepines, cocaine metabolites, opiates, cannabinoids and methadone metabolites. In 2008 the father underwent drug testing on subsequent occasions on the following dates: 16 June 2008;

26 August 2008; 9, 16, 22, 23, 29 and 30 September 2008; 6, 8, 13 and

14 October 2008 and 4 November 2008. The results were negative on all occasions except on 29 September 2008; the father tested presumptively positive for opiates and sympathomimetic Amines. It was accepted that this reading was a reading which was occasioned by the father’s ingestion of Codeine in a cold and flu remedy and it was not seriously suggested that it reflected illicit drug use.
On 31 March 2008 the father filed an Application seeking interim orders that the child spend defined time with him and for orders restricting the child’s travel and other orders. The father filed an affidavit in support of the Application. On the same date the father filed an Application for the like orders, but on a final basis.
On 28 April 2008 the mother filed a Response seeking that she have sole parental responsibility for the child and different orders than those proposed by the father, that he spend defined time with the child and that those times be supervised. Injunctions were sought restraining the father from taking alcohol and non prescription drugs for 24 hours prior to spending time with the child. Orders were also sought for the father’s attendance upon a medical practitioner for investigation in relation to and testing for substance abuse. Other orders were sought in relation to communication between the parties. On the same date the mother also sought, by way of interim orders, those orders which she sought in response to the father’s Application for Final Orders.
On 13 May 2008 Orders were made by consent restraining the mother from taking the child from Australia without the written consent of the father or order of the Court and the child was permitted to be placed on the airport watch list.
On 23 May 2008 the father’s solicitor ceased to act for him.
On 24 June 2008 orders were made by consent that Dr R, Child and Family Psychiatrist, be appointed as a Single Expert witness. Further orders were made that the child live with the mother, that the mother be restrained from removing the child from Australia except with the father’s written consent or further order of the Court. Orders were also made that the father be at liberty to place the child on the airport watch list. In addition, orders were made facilitating time between the child and the father twice a week at his playgroup for a period of two hours on each occasion and at other times as agreed by the parties. Further orders were made in relation to that contact in addition to orders of a machinery nature.
On 3 July 2008 the mother’s solicitor ceased to act for her.
On 3 July 2008 the mother filed an interlocutory application seeking orders for the provision of a paid supervisor during the time that the father spends with the child at his playgroup. Other orders were also sought by the mother that the child’s time with the father be subject to certain specified needs of the child and that the operation of the orders for the child’s contact with the father be restricted on nominated days, as specified.
On 16 July 2008 the mother’s new legal representatives filed a Notice of Address for Service.
On 6 August 2008 consent orders were made which required the time the father spent with the child to be supervised by the child’s nanny and that the father undergo random blood tests at reasonable dates and times. Various injunctive orders were also made and Dr R’s appointment as a single expert was discharged and Dr Q was appointed as a single expert in the case. In addition, a single expert Mr K, a Drug and Alcohol counsellor, was appointed for the purpose of providing a report on the father’s alcohol and drug issues. Further incidental orders were also made.
On 11 November 2008 the mother filed an Application for leave to remove the child from Australia for a holiday and on that application an order was made by consent granting her that permission on terms which included that the child spend make up time with the father, with such time to be supervised by the child’s nanny. Other orders were made to facilitate such time.
In 2009 the father underwent drug testing on the following dates: 11, 18, 25 and 26 May 2009; 1, 2, 9, 16, 22, 23, 29 and 30 June 2009; 7, 20, 27 and

28 July 2009; and 5, 10, 11, 17 and 18 August 2009. The results were all negative, although on 5 August 2009 the specimen was not assayed.
On 27 January 2009 Mr K completed a single expert report and prepared subsequent reports dated 2 and 3 November 2010.
On 19 April 2009 Associate Professor Q completed her first report. A second report was completed by her and is dated 7 November 2010. Associate Professor Q’s opinion is that unless the Court finds that the father is an unacceptable risk to the child the father’s application appears to her to be reasonable. Mr K observes that those who have had drug habits as this father has are always in danger of relapse. It appears it is similar in effect to alcoholism. However, Mr K in his report does not find evidence of a lack of functioning of the father by reason of the taking of illicit drugs.
In 2010 the father underwent drug testing on the following dates: 12 and

26 July 2010; 9 and 23 August 2010; 6 and 20 September 2010; 5, 11, 18 and 25 October 2010 and 1 November 2010, with negative results.
On 6 May 2009 interim orders were made by consent that, inter alia, the child live with the mother and spend defined time with the father from May to November 2009 and that that time be supervised, as set out. The father was ordered to undergo supervised urine drug testing each Saturday and Monday and orders were made in relation to communication between the parties and transportation and overseas travel in relation to the child.
On 26 June 2009 interim orders were made by consent, including the amendment of orders made on 6 May 2009 in relation to the child’s time with the father and that the parties arrange for the child to be assessed by a paediatrician.
On 23 November 2009 interim orders were made by consent that, inter alia, the child live with the mother and spend time with the father from 10.00 am until 6.00 pm each alternate Sunday at his sister’s home and commencing

29 November 2009 and from 9.00 am to 6.00 pm each Monday, attending the Y Play Group from 9.00 am to 12.00 pm and attending a sports program at M Park from 3.30 pm. Further orders were made in relation to the child spending time with the father on specified special occasions, and orders were made in relation to communication between the parties, overseas travel and makeup time. The orders made on 6 May 2009 in relation to supervision, the father’s urine drug testing and transportation arrangements for the child were vacated and orders were also made in relation to the drug testing costs, and the father meeting 25% of certain treatment costs of the child.
On 10 June 2010 the matter was listed for final hearing before the Court for four days commencing 8 November 2010.
On 1 July 2010 interim orders were made and included that the child spend time with the father from 5.00 pm Saturday to 6.00 pm Monday every second weekend, at the home of his maternal aunt and the Court noted that it did not make an order for supervision but that the child will sleep overnight at that home and will have the benefit of the company of his cousins. It was further ordered that the father undergo urine testing once each fortnight and the Court noted that the parties agreed they will co-operatively approach the child’s

pre-school and regularly confer with the teachers there about the child’s progress and would attend parenting discussion in the presence of a third party. Further orders were made in relation to the mother undertaking overseas travel and the preparation of updating expert reports.

The Issues

The issues which were evident from the material filed were refined by an agreement struck by the parties with the assistance of the Independent Children’s Lawyer on the first day of hearing.
As a result of that agreement the parties and the Independent Children’s Lawyer indicated that they would consent to orders that, inter alia, the child live with the mother and that each parent keep the other informed of certain matters relating to the child, including in relation to his education and medical appointments. Orders relating to the communication between the parties, and in relation to the mother taking the child on holiday overseas were also agreed.
The issues which remained for determination were whether the parties should have joint parental responsibility or whether some part or whole of the parental responsibility for the child should be devolved upon the mother solely and, if so, on what terms.
In addition, the issues which remained were what time the child should spend with the father and whether that time should be supervised by any other person and, if so, whom. It was further to be considered whether there should be any continuation of the drug testing regime undertaken by the father and, if so, for how long.

Relevant Law

Legal principles

The principles governing this case are set out in the Family Law Act 1975 (“the Act”). In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child’s best interests, I must consider certain matters under section 60CC. Those matters are the “primary considerations” and the “additional considerations” set out in that section.
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount (see section 60CG).
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the child and the principles underlying it.
I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.
Section 61DA(1) requires that:
“… When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”
Subsection (4) provides as follows:
“… The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”
Section 65DAA requires me to consider the child spending equal time or substantial and significant time with each parent, where the court is proposing to make an order that the child’s parents are to have equal shared parental responsibility.

Section 60CC Considerations

Primary considerations

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

The evidence before me indicates that the child has an existing relationship with each of his parents. He is benefited by the different backgrounds and parenting styles of each of his parents. The evidence of Associate Professor Q is that the child has a different relationship with the father than the mother. She said:
“… the more physical nature of it is a common feature of father/son interactions generally. As well as being more playful physically. [The child] giggled a lot in this context and seemed to enjoy being with his father.”
The father is described by Associate Professor Q as:
“… personable and engaging and showed none of the interpersonal deficits that are characteristic of autism.”
The single expert went on to say:
“The father has limitations in terms of providing materially but he relates very nicely to the child and has a good capacity for meeting his psychological needs and also [the child’s] needs for male identification. It is normally the case that men and women have rather different parenting styles and provided that parents do not position this as conflict it enriches a child’s repertoire of behaviours. As well, the parents are entirely different characters with different life styles and values and while this may be, and perhaps is already, a source of conflict, potentially it too could provide [the child] the opportunity to extend his repertoire of interpersonal behaviours and his interpersonal network and this could be of considerable benefit to him.”
Associate Professor Q observes that, subject to the Court determining that there is no risk to the child in the father’s care “[the child] can only benefit from time spent with his father and with the paternal family ...”.
I find that it is on the evidence important for this child to have the benefit of a meaningful relationship with each of his parents.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
This child has, notwithstanding the conflict between his parents, not yet shown signs of any psychological harm. He has of course those problems which relate to his ASD. The mother asserts that the child is likely to be placed in danger in the event that the father is under the influence of drugs whilst the child is in his care. She says that in order to avoid or lessen such a possibility of danger to the child it is necessary to provide for supervision of the time spent by the child with the father. For more abundant caution and in order to avoid the likelihood of recurrent drug use, she wishes the vigilance of continued drug testing. It is also suggested by the evidence that even if the Court took the view that the drug testing was not necessary for its own sake that it might well be considered as a means of providing comfort to the mother and a bulwark against her anxiety which might well lead to continuing conflict.
I have considered the totality of the evidence and it seems to me that the concerns of the mother arise primarily from the event which took place in April although she does make reference to an event in January 2010.
The father has undergone a rigorous drug testing regime as set out above. So far they have not produced any concerning results.
The father has a reasonable explanation for the events in April. His story was supported by the evidence of his mother of a conversation she had with him. She noted no slurring of speech in that conversation. Although some time thereafter the police who, at the instigation of the mother, entered the father’s premises found no evidence of drug taking.
The oral evidence of the father in relation to the incident was straightforward and I accept him on this subject as a witness of truth.
The father has come a long way since the problems of his past and has, it appears, applied self-discipline and on the testing regime results kept away from drugs of past intoxication.
The Court accepts given the past history of the father’s illicit drug use and the mother’s resultant anxiety (which would not be alleviated by the tension of the current proceedings) is a problem for the effective co-parenting of this child in the immediate future. Anxiety, if allowed to grow, is likely to lead to further conflict which this child above all does not need.
However, the Court also accepts that the father is likely to be made to feel resentful and anxious if required to undertake further tests for any significant period if as appears the case he is abstaining from drugs and his some 45 drug tests have already demonstrated a freedom from intoxication. Such anxiety and resentment can also be the fertilizer of future conflict and should be avoided.
In the Court’s view there is a balance that needs to be achieved and the Court takes the view that the drug testing should continue on a monthly basis for six months only. This, coupled with the results already to hand, will afford the mother the confirmation which the Court would find reasonable that she can have a reasonable expectation that the father’s determination to remain drug free continues.
The child in this case has suffered from the continuation of conflict between the parents. The mother’s communication style is peremptory and abrupt. She concedes that it can be seen as being authoritarian. A continuation of this style of communication is likely to promote conflict which will be to the detriment of her child. The Court thinks that the mother has heard the criticisms of her style of approach and has taken those criticisms on board. The Court has, however, made orders by consent which hopefully will improve the style and tenor of communication between the parents. What they have to learn is that denigration of either of them apparently or actually by the other is only going to hurt the image that their child has of himself. It must be a practice which is consigned to the garbage bins of history if this child is to achieve his full potential.
The evidence of the single expert supports the view that it is necessary that each parent value what the other parent can provide the child.
In the father’s case there needs to be recognition that the child’s mother is, in her research and exploration into decisions affecting the child, a wonderful resource for the child and her ability and the products of her application must be given due regard.
Equally the contribution which can be made by the father to this child and set forth by the single experts needs to be seen to be valued and appreciated by the mother.
In a climate of mutual respect and support the child can expect to progress. Absent that he is condemned to being deprived of the benefits which otherwise might be available to him.
In summary, the Court does not find that there is an unacceptable risk of harm to the child in the care of his father.

Additional considerations

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

The child has, in his interaction with the father and the mother whilst observed by Associate Professor Q, demonstrated ease and enjoyment with the company of each of his parents. The paternal grandmother observed that the child liked the company of other males.
(b)the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
The child has a happy relationship with each of his parents and his paternal grandmother. He enjoys the company of his cousin, C, with whom the evidence suggests he interacts well. He also reacts well with another cousin, E, and the children of the partner of the father’s sister. The father proposes that this relationship continue and it appears it is beneficial for the child in providing him with educational benefits in the form of teaching by example of social skills. Associate Professor Q observes in the following terms:
“The paternal grandmother is a valuable resource for [the child] as she has the wisdom of professional experience as well as the ordinary devotion of a grandmother, however, [the mother] doubts her commitment to [the child] and is of the view that [the paternal grandmother’s] investment is in doing the best for [the father] rather than for the child.”
The Court does not share the mother’s view of the paternal grandmother who was an impressive witness and gave evidence that she was prepared to put her grandchild’s interests before those of her son.

Associate Professor Q goes on to say:
“Spending time with the paternal grandfather and uncle is also of obvious benefit to [the child] who does not have a lot of interaction with male role models. That those men enjoy outdoor activities is also important in expanding the child’s repertoire of behaviours and of social interactions. [The child] also benefits from playing with his cousins; he has developmental limitations in terms of peer relationships and promoting relationships with peers is of special importance to him; in the context of an extended family such relationships are likely to be nurtured and adult family members are also more likely to be protective of a vulnerable child in relating with peers than unrelated adults might be.”
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
Each of the parents has expressed willingness to facilitate a continuing relationship between the child and the other parent, albeit that the mother seeks to make that somewhat conditional and limited. Associate Professor Q reports that the father “… does not seek to limit the relationship between the mother and the child in any way other than to promote his own relationship with [the child].”
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
Associate Professor Q reports that:
“[The child] is strongly attached to both parents and needs to maintain those relationships. He is accustomed to being in the primary care of his mother and it would be difficult for him if that arrangement were altered, but there does not appear to be any application to do so. Any child of this age is highly vulnerable to separation from his major attachment figures but as a child with special needs [T] is particularly vulnerable.”
It seems that the relationship between the child and his cousin is of significant importance to him.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
There are no practical difficulties nor expense attendant on this child spending time with and communicating with the other parent such that his right to maintain personal relations and direct contact with both parents on a regular basis could be adversely affected.
(f)the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
Associate Professor Q reports as follows, and this is supported by evidence aliunde that:
“The mother is dedicated and resourceful and does everything she can to provide for [the child] and to meet his special needs as comprehensively as possible. She may have some difficulties, however, in understanding the importance of [the child’s] relationship with the father and his family and in shielding [the child] from the impact of continuing conflict.
The father has limitations in terms of providing materially but he relates very nicely to the child and has a good capacity for meeting his psychological needs and also [the child’s] needs for male identification.”
In her report Associate Professor Q goes on to say:
“… the parents are entirely different characters with different life styles and values and … it too could provide [the child] the opportunity to extend his repertoire of interpersonal behaviours and his interpersonal network and this could be of considerable benefit to him.”
Associate Professor Q sees the paternal grandmother as valuable for the child.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The current lifestyle of the father is not problematic and nor is the lifestyle of the mother. The mother is Spanish and is able to convey to her son his Spanish heritage. The father has demonstrated his understanding of the need for the child to have social interaction and provided for contact with cousins to meet that need. The child himself has ASD but is undergoing therapy for symptoms of that which have been researched, engaged and organised by the mother.
Apart from the conflict evident in the relationship in the past between the parents of the child and about which the Court expresses continuing concern, it seems that this child has the benefit of two loving, concerned and capable parents each offering him different but important contributions to his ability to achieve his potential.
(h)if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right
This is not applicable.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
It is clear not only from her evidence but the evidence of others that the mother is devoted to the care of the child. She applies herself diligently to decisions about and for the benefit of the child and she appears responsible in that decision making. Whilst the father has had problems in the past in relation to the taking of illicit drugs he appears to have applied himself to that problem and has been able to establish a continuing abstinence from drug taking. His dedication to that task is part of his dedication to his son.
Although it is clear that the mother has borne the major financial burden for the care of this child and will continue to do so by reason of her higher earning capacity, the father has made a contribution and whilst his means are modest the Court is sure that that contribution will continue. He has otherwise devoted himself to the care of the child whilst he has been with him.
(j)any family violence involving the child or a member of the child’s family
There are no convictions for any physical violence nor any Apprehended Violence Orders made. Apart from an assertion which does not appear to have been pressed of some violent reaction on the part of the mother, there appear to be no other allegations.
(k)any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person
There is no such order.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Clearly proceedings between these parties in the interests of this child should come to an end. They have been continued too long. The child and the parties need to depart this battlefield aware that what they have done, although in each of their minds well motivated, has created a conflict the continuation of which can only be detrimental to their son whom they each love.
The Court has, therefore, decided to provide an order which will it hopes settle matters for a period of time and which will enable these parents to gain confidence in each other and restore an active and positive communication between them for the benefit of their son. In order to assist them in that regard and with their consent, Orders have been made for the attendance on courses designed to provide them with some skills in communication. In addition, it is intended to make an order that the contact be supervised by a Family Consultant of this Court for a period of 12 months so that the parties have the assistance of third parties, should it be required, to resolve any differences between them. It is hoped that this course will lessen the possibility of further proceedings in relation to this child.
(m)any other fact or circumstance that the court thinks is relevant
These parents have co-operated in the past. That co-operation must be restored for the sake of the child. It is noted that there are other proceedings between them in another court. The Court hopes that with the conclusion of those proceedings, which the father says is a cause of friction between the parties, and the reassurance to be given to the mother by a further limited period of drug testing, there will be a determination on the part of both these parents to not for the sake of their child again let their common concern and love for him degenerate into conflict. For all children conflict is damaging. For a child with special needs Associate Professor Q reports it is more damaging because the child is particularly vulnerable since he does not have the ability to deal with conflict to the same degree as other children.

Section 60CC(4) & (4A)

I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters. A consideration of the evidence, save to the extent that the father has not involved himself in the therapy undertaken by the child and the treatment of his disorder, shows he has sought to participate in some of the major long term decisions relating to the child.
Since separation he has taken the opportunity to spend time with and communicate with the child. It does appear the mother has not fully involved the father in all decisions in relation to the child but she has facilitated contact between the father and the chid since separation. There is no doubt that the major financial contribution to the costs of care of this child has been made and borne by the mother and the father’s contribution in that regard has by comparison been modest.

Balancing of all considerations under Section 60CC and the defined issues

Balancing the matters set out in section 60CC and the evidence recited in these reasons I conclude that the orders I propose will operate to foster the best interests of this child for the reasons specified above.

Section 61DA

This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. The section requires the Court to presume that it is in the child’s best interests for his parents to have equal shared parental responsibility for the child.
The presumption does not apply where there has been family violence. In this case there has been no family violence as has been set out earlier.
Notwithstanding that there may have been family violence it would still be open to the Court to make an order for equal shared parental responsibility if it was determined to be in the best interests of the child.
The section further provides in sub section (4) that the presumption may be rebutted if it is determined to be not in the child’s best interests.
In this case there is reason found in the conflict of the past in relation to the child’s education and the appropriateness of his therapies given his special vulnerabilities for the presumption not to apply in relation to those areas of responsibility. The lack of timeliness in the father’s communication has been a problem. Although orders will be made requiring consultation in relation to these matters, there needs, on the history of the relationship between these parties and their several differential involvement in those subjects, for there to be a means whereby decisions can be made in a timely manner without necessitating further conflict. There needs to be a means to prevent a failure in the resolution of issues and I will make orders accordingly for conditional sole parental responsibility in these areas.

Section 65DAA

This section requires me to consider making an order for equal shared time for the child with each parent where it is proposed to make an order for equal shared parental responsibility.
The Court is not proposing in this case to make an order for equal shared parental responsibility over the full gamut of such responsibilities. In any event, I do not in this case consider that the child spending equal time with his parents is in his best interests given his current special needs and his primary attachment to his mother and his age. Indeed neither party seeks such an order.

The Orders to be made

I therefore propose to make the orders in relation to parenting as set forth above.

I certify that the preceding one hundred and twenty-three (123) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 3 December 2010.

Associate:

Date: 3 December 2010

[2010] FamCA 1110

3 December 2010

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Family Law

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Jurisdiction

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