JANDURA & BANGARD

[2020] FCCA 2171

FEDERAL CIRCUIT COURT OF AUSTRALIA

JANDURA & BANGARD [2020] FCCA 2171

Catchwords:
FAMILY LAW – Interim parenting – short form reasons – child with special needs – assessment of risk – best interests of child – orders made for father to spend unsupervised time with child.

Legislation:

Family Law Act 1975 (Cth), ss.61DA, 69ZL

Applicant: MR JANDURA

Respondent: MS BANGARD

File Number: PAC 1505 of 2020

Judgment of: Judge Obradovic

Hearing date: 31 July 2020

Date of Last Submission: 31 July 2020

Delivered at: Parramatta

Delivered on: 12 August 2020

REPRESENTATION

Appearing for the Applicant: Ms Smith

Solicitors for the Applicant: Sydney Family Law Specialists Pty Ltd

Counsel for the Respondent: Mr Flanigan

Solicitors for the Respondent: Harb Lawyers

PENDING FURTHER ORDER

1. Orders 1, 2 and 3 of the Orders made on 25 May 2020 are discharged.

2. The parents shall have equal shared parental responsibility for the child X born in 2017.

3. X shall spend time with the father:

   (a)Commencing 18 August 2020, each Tuesday and Thursday from 12 noon until 5pm;

   (b)Commencing 26 September 2020, each Saturday from 10am until 1pm and each Tuesday and Thursday from 12 noon until 5pm; and

   (c)At such other times as may be agreed between the parents in writing.

4. X shall live with the mother at all other times when he is not otherwise spending time with the father including at the following times when the father’s time with X, pursuant to these Orders, shall be suspended:

   (a)From 10am until 5pm on Mother’s Day;

   (b)On X’s birthday, if the mother is not otherwise spending time with him on his birthday as agreed and failing agreement from 12 noon until 5pm;

   (c)From 6pm on 24 December until 6pm on 25 December in years ending in an even number; and

   (d)From 6pm on 25 December until 6pm on 26 December in years ending in an odd number.

5. Unless otherwise specified in these Orders or agreed between the parents from time to time, for the purposes of changeover:

   (a)The father and/or his nominee shall collect X from the mother’s home at the commencement of X’s time with the father;

   (b)The mother and/or her nominee shall collect X from the father’s home at the conclusion of X’s time with the father; and

   (c)Any nominee who attends changeover on behalf of the mother or father must be a person who is familiar to and known to X.

6. The mother and father shall immediately notify the other parent of any illness, medical emergency, serious medical problem, hospitalisation, details of any attendance upon any doctor/health care professional, or accident in relation to X when he is in their care.

7. Together with such notice, for the purpose of Order 6 above, the parent is to provide the name of the hospital, treating medical practitioner and/or medical facility that provided medical treatment to X.

8. The matter is listed for directions at 12 noon on 24 November 2020.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1505 of 2020

MR JANDURA

Applicant

And

MS BANGARD

Respondent

REASONS FOR JUDGMENT

1. These are short form reasons pursuant to s.69ZL of the Family Law Act1975 (Cth) (“the Act”).

2. The interim issues for determination are:

   a)Parental responsibility; and

   b)Time between the child and the father, that is whether such time is to be supervised and the duration and frequency of time.

3. The principles in respect of interim hearings are well known, including that the legislative pathway must at all times be followed. Interim hearings are curtailed by the absence of cross-examination and testing of evidence in general, and the Court is often in a position where it is unable to make findings of fact. Even in such constrained circumstances, the Court is still required to determine the applications before it. In the circumstances of this case due to the issues raised the Court is to undertake a risk assessment.  This is done by weighing the probabilities of competing claims and the likely impact on the child in the event that a controversial assertion is acted upon or rejected.

4. The proceedings concern the parties’ only child X, who was born in 2017.

5. In early April 2020, X was diagnosed with Category 3 Autism.

6. The child has always lived with the mother, and prior to interim consent orders made on 25 May 2020, the child spent time with the father as agreed to between the parents from time to time.

7. A report dated 10 May 2020 from Stepping Stones, a paediatric occupational therapy service, notes the feedback provided by the mother to the therapy service about X, indicating that:

   a)The child is described as an active and sweet boy who is happy and enjoys outdoor play and sensory activities;

   b)The child has separation difficulties, is overly active, resistant to change, displays temper tantrums and poor attention;

   c)The child seems to be in constant motion and is unable to sit still for any activity;

   d)The child will frequently bump into things and knock things over, hates having his hair washed, resists wearing new clothing and is bothered by tags;

   e)The child is frequently distressed by loud or sudden sounds, display, outbursts and tantrums, has trouble following multi-step instructions and is a fussy eater;

   f)The child prefers to play on his own and will sometimes walk away if his mother attempts to engage him in play;

   g)The child is able to say a few words, in particular “bye”, “cat” and “dog”;

   h)The child displays tantrums and can be easily frustrated; and

   i)The child likes to open and close doors.

8. The orders made on 25 May 2020, provided for X to spend supervised time with the father for two hours each Tuesday and Thursday, between the hours of 3pm and 5pm. It is time which has, for the most part, been consistently spent, albeit there have been a few occasions when time did not occur due to ill health.

9. Reports from the supervising service were in evidence at the interim hearing. Those reports indicate, objectively and on their face, that time has been progressing well and that the father has shown capacity to care for the child.

10. The mother is concerned that the father does not have capacity to care for the child on an unsupervised basis and submits that perhaps, consequent upon a lack of understanding of X’s behavioural issues, the father can be hard and dismissive of the child. 

11. The mother also says to the Court that the child is unsettled after spending time with the father, and that it has been recommended to her that any time with the father should occur on a Saturday morning as this would least disrupt X’s routine. Given the descriptions of the child provided to the occupational therapist which are recorded in the report referred to above, it might be that the child is continuing to display similar behaviours as those displayed previously, although some of the behaviours might be amplified as a result of new settings and changes to routines.

12. The mother remains to have these concerns including after the child has been spending supervised time with the father since early June 2020 and in circumstances where the reports from the supervising service do not indicate any real concerns about the father’s capacity to meet the child’s needs.

13. It was agreed by the parents on 31 July 2020, that they would both complete the Hanen program for parents of children with Autism Spectrum Disorder. It was further agreed that they would both attend a Parenting After Separation course. An order by consent was made on 4 August 2020 in respect of these, and other matters relating to communication and corporal punishment of the child.

14. The mother says that she fears that should the child spend unsupervised time with the father, the child may be exposed to serious psychological harm.

15. It is the mother’s case that the father was emotionally abusive towards her during the course of their relationship. There was also the issue of paternity, which has now been resolved. The mother’s allegations of family violence are denied by the father and are yet to be tested.

16. There is in place already an order restraining the parents from denigrating each other and also restraining the parents from corporal punishment upon the child.

17. The parties both submit that there is no practical difficulty or expense with the child spending time with the father.

18. The courses which the father has agreed to undertake are likely to alleviate the risks identified by the mother, in particular the courses will assist the father in reaching a better understanding of the child’s special needs and how to better communicate with the mother. The father has indicated a willingness and ability to participate in the child’s therapies, and the Court accepts that he will do so going forward.

19. The Court is not satisfied, having regard to the evidence, existing restraints and upon weighing up the likelihood of harm to the child as a result of the matters identified in the mother’s material, that there is an unacceptable risk of harm to the child such that time with the father ought to be supervised.

20. The Court finds that on an interim basis, it is in the child’s best interest that he commences spending unsupervised time with the father on a graduated basis, but that no overnight time occur before there is further evidence as to how time is progressing and how the child is enjoying his time with the father.

21. It is the Court’s view that if the child was to spend time with the father in the father’s home (as sought by the father) this would likely provide further routine and consistency for the child as opposed to supervised time with different supervisors and at times at different venues as has been occurring to date.

22. In respect of parental responsibility, the presumption of equal shared parental responsibility when making a parenting order applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order. The Court does not so consider it in this case, and furthermore, the mother has not satisfied the Court that the presumption should be rebutted on the basis of any of the matters in s.61DA of the Act.

23. While both parents, as submitted by Counsel for the mother, are learning about autism and how their child is affected as they go, they are also learning about each other. Indeed, it might be of assistance to the parents to learn more about each other and their child by sharing the challenging task of raising a child with special needs and being involved in the decisions regarding his long term care and development. After all, the diagnoses for the child is fairly new and no doubt will take both parents some time to come to terms with and understand.

24. For all of those reasons, orders as set out at the forefront of these reasons are made.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Associate: 

Date: 12 August 2020