Kade & Bertram
[2023] FedCFamC2F 1236
•18 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kade & Bertram [2023] FedCFamC2F 1236
File number(s): PAC 4550 of 2019 Judgment of: JUDGE NEWBRUN Date of judgment: 18 October 2023 Catchwords: FAMILY LAW – PARENTING – Best interests of child – orders made. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65D, 61DA(3), 65DAA(3) Cases cited: Saif & Saif [2020] FamCA 119 Division: Division 2 Family Law Number of paragraphs: 161 Date of hearing: 4–6 September 2023 Place: Parramatta Counsel for the Applicant: Ms Stares SC Solicitor for the Applicant: Genlaw Pty Ltd Counsel for the Respondent: Mr Alexander Solicitor for the Respondent: AS Family Lawyers Counsel for the Independent Children's Lawyer: Mr Katsinas Solicitor for the Independent Children's Lawyer: Laura K Law ORDERS
PAC 4550 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KADE
Applicant
AND: MR BERTRAM
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
18 OCTOBER 2023
THE COURT ORDERS THAT:
Parental responsibility
1.That the Mother have sole parental responsibility for the child, X, born in 2017 (“the child”) but when making a decision about major long term issues, the following shall apply:
(a)The Mother must, at first instance, inform and provide notice to the Father in writing via text message of the decision proposed to be made;
(b)The Mother must, at first instance, and in the notice pursuant to Order 1(a) above, invite written comments from the Father;
(c)The Mother must consider such comments before making her decision; and
(d)The Mother must inform the Father in writing via text message of the decision once it is made.
Live with
2.That the child live with the Mother.
Spend time
3.That unless otherwise agreed in writing, the child shall spend time with the Father as follows:
(a)From the date of these orders until a period of six months after the child commences school in 2024, each alternate Friday from 4.00 pm until 5.00 pm on Sunday.
(b)After a period of six months from the date that the child commences school, each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday.
School holidays
4.The father shall spend time with the child during the Term 1 and 2 2024 school holiday periods for 2 nights of the school holiday period.
5.For the purposes of order 4, the 2 nights are to commence in the first week of such holidays on Sunday from 4.00 pm until 4.00 pm on Tuesday.
6.The Father’s time shall increase by 1 night during the Term 3 2024 school holiday period, from Sunday 4.00 pm until 4.00 pm on Wednesday, and shall increase by 1 night each consecutive school holiday period until the child spends 7 nights with the Father.
7.Upon the Father’s time increasing to 7 nights with the child, the Father shall spend time with the child during the Term 1, 2, and 3 school holidays in the first half in odd numbered years and the second half in even numbered years.
8.Upon the Father’s time increasing to 7 nights with the child, the Father shall spend time with the child during the Term 4 school holiday period for the first week and each alternate week thereafter in odd numbered years and in the second week and each alternate week thereafter in even numbered years.
9.Where time does not commence or conclude at school, at the commencement of the Father’s time the Father is to pick up the child from the Mother’s residence and, at the conclusion of the Father’s time, the Mother or her representative is to pick up the child from the Father’s residence.
10.Notwithstanding any other order, the child shall spend time with the Mother and Father on the following special occasions:
Easter
(a)The child shall spend time with the Mother:
(i)In even years from 4.00 pm Maundy Thursday until 5.00 pm Easter Saturday;
(ii)In odd years from 5.00 pm Easter Saturday until 4.00 pm Easter Monday.
(b)The child shall spend time with the Father:
(i)In odd years from 4.00 pm Maundy Thursday until 5.00 pm Easter Saturday;
(ii)In even years from 5.00 pm Easter Saturday until 4pm Easter Monday.
Christmas Day
11.In each year that ends in an odd number the child is to spend:
(a)From 12 noon on Christmas Eve until 12 noon Christmas Day with the Father; and
(b)From 12 noon on Christmas Day until 12 noon on Boxing Day with the Mother.
12.In each year that ends in an even number the child is to spend:
(a)From 12 noon on Christmas Eve until 12 noon on Christmas Day with the Mother; and
(b)From 12 noon on Christmas Day until 12 noon on Boxing Day with the Father.
Child’s birthday
13.Commencing in 2024, the Mother shall spend time with the child:
(a)In odd years from 1.00 pm or after school on the child’s birthday until 9.00 am or the commencement of school the next day;
(b)In even years from 1.00 pm or after school on the child’s birthday until 9.00 am or the commencement of school the next day.
14.Commencing in 2024, the Father shall spend time with the child:
(a)In even years from 1.00 pm or after school on the child’s birthday until 9.00 am or the commencement of school the next day;
(b)In odd years from 1.00 pm or after school on the child’s birthday until 9.00 am or the commencement of school the next day.
Mother’s Day and Father’s Day
15.If Mother’s Day falls on a weekend when the Mother does not otherwise have care of the child, the Mother will have care of the child from 4.00 pm the Friday prior to Mother’s Day until 9.00 am or the commencement of school the following Monday, notwithstanding any other order.
16.If Father’s Day falls on a weekend when the Father does not otherwise have care of the child, the Father will have care of the child from 4.00 pm the Friday prior to Father’s Day until 9.00 am or the commencement of school the following Monday, notwithstanding any other order.
School events, child’s activities, and communication
17.The parents will both be entitled to attend all events involving the child including:
(a)Sporting fixtures;
(b)Extra-curricular activities that allow for parental attendance;
(c)School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, carnivals, parent and teacher interviews, canteen duties and social functions,
and the parent who has the child in their care on the day of such events will be responsible for their day-to-day care at such event and the child’s transportation to and from that event.
18.The Father is to have FaceTime contact with the child each Tuesday and Thursday at 6.00 pm and each parent shall ensure that their phones are charged and have requisite credit to facilitate such communication.
19.The Mother and Father shall immediately notify the other parent of any illness, medical emergency, serious medical problem, hospitalisation or accident in relation to the child when the child is in their care and together with any such notice, the parent is to provide the name of the hospital, treating medical practitioner and/or medical facility that provided medical treatment.
20.The parties shall ensure that the other party is kept informed of:
(a)Any medical problems or illnesses suffered by the child while in their care;
(b)Any medication that has been prescribed for the child;
(c)Any social, school or religious function which the child are to attend; and
(d)Any other matter relevant to the child’s welfare.
21.For the purposes of communicating information between the parties the Mother and Father shall:
(a)Communicate by telephone matters of an urgent nature; and
(b)Communicate in relation to all other matters regarding the welfare of the child, with the utilisation of a parenting app, MyMob, and for this purpose, the parties shall within 7 days from the date of these Orders, download such parenting application onto their phones.
22.Each party shall advise the other party of their current address, contact telephone numbers (including both landline and mobile phone numbers if applicable) and email address, and advise the other party of any changes to these details within 7 days of such change occurring.
Restraints
23.The parties are restrained from:
(a)Discussing these family law proceedings with the child;
(b)Making critical or derogatory remarks in relation to the other party in the presence or hearing of the child, or permitting any third party to do so, and
(c)Physically disciplining the child.
24.The Father is restrained from communicating with any of the child’s therapists or professionals with disrespect or aggression, or in a harassing manner.
Courses
25.That the Father forthwith engage with C Organisation and undertake such courses which will enable him to gain an understanding of the child’s condition in ways that he can assist the child when the child is spending time with him.
Authorities
26.These Orders are authority for any medical practitioner, dentist, counsellor or other health professional who treats the child to provide information to the other parent upon request by the other parent, to the extent permitted by law.
27.Each parent is permitted to liaise directly with the child’s school, sporting bodies and/or extra-curricular organisation to obtain any necessary information about the child’s progress.
28.These Orders are authority for the school, sporting bodies and/or other organisations to release such information as requested by the other parent to the extent permitted by law.
29.The parent that caused the child to be enrolled in such activities or schooling must provide the other parent the particulars of the enrolment within 24 hours of enrolment.
30.These Orders are authority for the child’s school to provide both parents with copies of the child’s school reports, newsletters, photograph order forms and invitations to attend any activities which parents are invited to attend and for both parents to be named on all school and extracurricular records as emergency contacts.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
A final parenting hearing was held on 4, 5, and 6 September 2023 in respect to the child, X, born in 2017.
The mother is aged 32, and works in the arts. The child lives with the mother. Also residing with the mother is the maternal grandmother, aged about 70 years, and the child’s stepsister D, aged nine years. The mother lives in premises at Suburb E.
The father is aged 45, and works as a full-time self-employed tradesperson. The child presently spends time with the father, inter alia, two nights each fortnight. The father lives in premises at Suburb F.
The parties commenced their relationship in about 2016 and it ended in about March/April 2018.
On 13 November 2019, interim orders were made by consent, providing, inter alia, for the parties to have equal shared parental responsibility, and for the child to live with the mother and spend time with the father each alternate weekend from 4.00 pm Friday to 5.00 pm Sunday.
PROPOSALS
The ICL seeks final parenting orders as set out in her proposed Minute of Order being:
Parental Responsibility
1.That the Mother have sole parental responsibility for the child, [X], born [in] 2017 (“the child”) but when making a decision about major long term issues, the following shall apply:
1.1.The Mother must, at first instance, inform and provide notice to the Father in writing via text message of the decision made;
1.2.The Mother must, at first instance, and in the notice pursuant to Order 1.1 above, invite written comments from the Father;
1.3.The Mother must make a genuine effort to consider such comments made into account when making the decision; and
1.4.The Mother must inform the Father in writing via text message of the decision once it is made.
Live with
2. That the child live with the Mother.
Spend time
3.That unless otherwise agreed in writing, the child shall spend time with the Father as follows:
a)from the date of these orders until a period of 6 months after the child commences school in 2024, Each alternate Friday from 4:00pm until 5:00pm on Sunday.
b)after a period of 6 months from the date that the child commences school, each alternate Friday from the conclusion of school on Friday until the commencement of school on Monday.
School holidays
4.The father shall spend time with the child during the Term 1 and 2, 2024, school holiday periods for 2 nights of the school holiday period.
5.For the purposes of order 4, the 2 nights are to commence in the first week of such holidays on Sunday from 4:00pm until 5:00pm on Tuesday.
6.The Father’s time shall increase by a night during the Term 3, 2024, school holiday period from Sunday 4:00pm until 4:00pm on Tuesday, and shall increase by a night each consecutive school holiday period until the child spends 7 nights with the Father.
7.Upon the Father’s time increasing to 7 nights with the child, the Father shall spend time with the child during the term 1, 2, and 3 school holidays in the first half in odd numbered years and the second half in even numbered years.
8.Upon the Father’s time increasing to 7 nights with the child, the Father shall spend time with the child during the term 4 school holiday period for the first week and each alternate week thereafter in odd numbered years and in the second week and each alternate week thereafter in even numbered years.
9.Where time does not commence or conclude at school, at the commencement of the Father’s time the Father is to pick up the child from the Mother’s residence and, at the conclusion of the Father’s time, the Mother or her representative is to pick up the child from the Father’s residence.
10.Notwithstanding any other order, the child shall spend time with the Mother and Father on the following special occasions:
Easter
A. The Child shall spend time with the Mother:
i) In even years from 4pm Thursday until 5pm Easter Saturday;
ii)In Odd years the child shall spend time with the mother from 5 pm easter Saturday until 4pm Easter Monday.
B. the child shall spend time with the Father:
i) In odd years from 4 pm Thursday until 5pm easter Saturday;
ii)In even years the child shall spend time with the Father from 5pm easter Saturday until 4pm om easter Monday.
Christmas Day
A. In each year that ends in an even number the child is to spend:
a.From 12 noon on Christmas Eve until 12 noon Christmas day with the Father; and
b.From 12 noon on Christmas Day until 12 noon on Boxing Day with the Mother.
B. In each year that ends in an odd number the Child is to spend:
a.From 12 noon on Christmas Eve until 12 noon on Christmas day with the Mother; and
b.From 12 noon on Christmas Day until 12 noon on Boxing Day with the Father.
Childs birthday
11.The Father shall spend time with the child from 4pm [on the child’s birthday] until 1pm [the next day].
12.Commencing in 2024, the Mother shall spend time with the child:
i)in odd years from 1pm or after school [on the child’s birthday] until 9am or before school [the next day].
ii)in even years from 1pm or after school [on the child’s birthday] until 9am or before school [the next day].
13. Commencing in 2024, the Father shall spend time with the child:
i)in even years from 1pm or after school on [on the child’s birthday] until 9am or the commencement of school [the next day].
ii)in odd years from 1pm or after school [on the child’s birthday] until 9am or before school [the next day].
Mother’s Day and Father’s Day
14.If Mother’s Day falls on a weekend when the Mother does not otherwise have care of the child, the Mother will have care of the child from 4pm the Friday prior to Mother’s Day until 9am or the commencement of school Monday, notwithstanding any other order.
15.If Father’s Day falls on a weekend when the Father does not otherwise have care of the child, the Father will have care of the child from 4pm the Friday prior to Father’s Day until 9am or the commencement of school Monday notwithstanding any other order.
School events, child’s activities, and communication
16.The parents will both be entitled to attend all 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 and teacher interviews, canteen duties and social functions,
and the parent who has the child in their care on the day of such events will be responsible for their day-to-day care at such event and the child’s transportation to and from that event.
17. Any other times will be as agreed between the parents in writing.
18.The Father is to have Facetime contact with the child each Tuesday and Thursday at 6.00pm and each parent shall ensure that their phones are charged and have requisite credit to facilitate such communication.
19.The Mother and Father shall immediately notify the other parent of any illness, medical emergency, serious medical problem, hospitalisation or accident in relation to the child when the child is in their care and together with any such notice, the parent is to provide the name of the hospital, treating medical practitioner and/or medical facility that provided medical treatment.
20. The parties shall ensure that the other party is kept informed of:
i)any medical problems or illnesses suffered by the child while in their care;
ii) any medication that has been prescribed for the child;
iii)any social, school or religious function which the child are to attend; and
iv) any other matter relevant to the child’s welfare.
21.That for the purposes of communicating information between the parties the Mother and Father shall:
i)communicate by telephone matters of an urgent nature, and otherwise; and
ii) communicate in relation to all other matters regarding the welfare of the child, with the utilisation ofa parenting App, MyMob, and for this purpose, the parties shall within 7 days from the date of these Orders, download such parenting application onto their phones.
22.Each party shall advise the other party of their current address, contact telephone numbers (including both landline and mobile phone numbers if applicable) and email address, and advise the other party of any changes to these details within seven days of such change occurring.
Restraints
23.The parties are restrained from:
i) discussing these family law proceedings with the child;
ii)making critical or derogatory remarks in relation to the other party 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; and
iii) physically disciplining the child.
iv)Without admissions, the Father shall continue to ensure that he does not communicate with any of the child’s therapists or professionals with disrespect or aggression, or in a harassing manner, otherwise such authorities allowing such communication shall be suspended.
Courses
24.That the Father forthwith engage with [C Organisation] and undertake such courses which will enable him to gain an understanding of the child’s condition in ways that he can assist the child when the child is spending time with him.
Authorities
25.That these Orders are authority for any medical practitioner, dentist, counsellor or other health professional who treats the child to provide information to the other parent upon request by the other parent, to the extent permitted by law.
26.That each parent is permitted to liaise directly with the child’s school, sporting bodies and/or extra-curricular organisation to obtain any necessary information about the child’s progress; and these Orders are authority for the school, sporting bodies and/or other organisations to release such information as requested by the other parent to the extent permitted by law and that the parent that caused the child to be enrolled in such activities or schooling must provide the other parent the particulars of the enrolment within 24 hours or enrolment.
27.That these Orders are authority for the child’s school to provide both parents with copies of the child’s school reports, newsletters, photograph order forms and invitations to attend any activities which parents are invited to attend and for both parents to be named on all school and extracurricular records as emergency contacts.
28.That each parent is permitted to attend parent-teacher interviews, concerts, carnivals and other events involving the child’s school, or in the context of extra-curricular activities to which parents are ordinarily invited, even if that event occurs at a time when the child is in the care of the other parent pursuant to these Orders.
Notations
A.In the event that the Father is unable to exercise his time with the child during school holidays as per the provisions herein, then the child’s time in accordance with Order 3(b) shall continue during school holidays.
(As per the original)
The father, in his proposed Minute of Orders sought Orders providing for, inter alia, equal shared parental responsibility, and for the child to spend time with the father on a graduating basis, from 3 nights each fortnight presently and leading to an equal time shared care arrangement during school terms.
The mother significantly adopted the ICL’s proposed Orders.
MATERIAL RELIED UPON
The father relied upon:
(a)Outline of Case filed 28 August 2023;
(b)Amended Initiating Application filed 8 March 2023;
(c)His affidavit filed 9 March 2023;
(d)Affidavit of Ms G, paternal grandmother, filed 8 March 2023;
(e)Affidavit of Mr H filed 8 March 2023;
(f)Notice of Risk filed 19 September 2019.
The mother relied upon:
(a)Outline of Case filed 28 August 2023;
(b)Her affidavit filed 27 February 2023;
(c)Amended Response filed 27 February 2023;
(d)Notice of Risk filed 13 November 2019;
(e)Family Report of Ms J dated 21 April 2022.
The ICL relied upon:
(a)Outline of Case filed 1 September 2019.
EXHIBITS
The following documents became exhibits:
(a)Exhibit A: Psychological Report of Dr K received by the parties and ICL on 30 August 2023;
(b)Exhibit B: Pages 1–5 of father’s tender bundle;
(c)Exhibit C: Pages 8–12 of ICL tender bundle;
(d)Exhibit D: Page 6 of father’s tender bundle;
(e)Exhibit E: Pages 7–13 of father’s tender bundle;
(f)Exhibit F: Email from Ms L to Ms M and Ms N dated 4 November 2022;
(g)Exhibit G: Orders 14 November 2022;
(h)Exhibit H: Pages 88–90 of father’s tender bundle; page 94 of father’s tender bundle; email from father’s solicitor to mother’s solicitor 28 November 2022; email from mother’s solicitor to father’s solicitor 13 March 2023;
(i)Exhibit I: Pages 14–16 of father’s tender bundle;
(j)Exhibit J: Pages 23 (being letter 2 February 2020 from O Company to Suburb P Police), 28-29 of father’s tender bundle;
(k)Exhibit K: One page document headed D Photography;
(l)Exhibit L: COPS event;
(m)Exhibit M: Paragraph 49 and Annexure D to mother’s affidavit filed 1 September 2020;
(n)Exhibit N: Orders 13 March 2023;
(o)Exhibit O: Letter from Q Company dated 11 August 2022;
(p)Exhibit P: Family Report of Ms J dated 21 April 2022;
(q)Exhibit Q: Pages 20-21 of ICL tender bundle.
EVIDENCE
In the determination of this case the Court has had regard to all of the documentary evidence referred to above, together with the oral evidence of the parties, the lay witnesses (the paternal grandmother and Mr H), and the Family Report writer, Ms J. Throughout these Reasons the Court will refer to a number of facts taken from that evidence. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact the Court is required to assess the evidence on the balance of probabilities. In order to limit the size of this judgment not all factual issues will be addressed. However, those that are relevant to the Court’s determination will be considered either in this section or whilst addressing the s 60CC factors (see below). Evidence referred to under the s 60CC considerations shall, in the event of any conflict with the evidence referred to in this section, take precedence.
The father gave oral evidence. His demeanour was one of relative calm and he sought to give responsive answers to questions asked of him. He impressed as a man who loved the child and wanted to be significantly involved in the child’s upbringing. He impressed as being resentful of the mother’s past actions in not facilitating time with the child and himself particularly for a lengthy period in 2019, and resentful that the mother had not fully involved him in the child’s health assessments and treatments, particularly in relation to the child’s autism. He impressed as having a poor opinion of the mother as a parent who, through her parenting, had contributed to the development of aspects of the child’s behavioural difficulties. He regarded the mother as a lazy parent.
The mother gave oral evidence. She was cross-examined at length by senior counsel for the father and the cross-examination was often robust. Yet the mother’s demeanour was also one of relative calm and she also sought to give responsive answers to questions asked of her. On occasion she provided frank answers against her interests. She impressed as a mother who was devoted to the child’s positive development, and who was attuned to his special needs as a child diagnosed with, inter alia, autism.
The Court accepts the mother’s evidence relating to the extent of her cohabitation with the father during their relationship. The Court observes that there was no action taken by Centrelink against the mother relating to her receipt of the single parent’s benefit.
The Court accepts the mother’s evidence relating to the extent of the father’s interest and involvement in her pregnancy relating to the child.
The Court accepts the mother’s evidence relating to her writing a letter to the father on about 11 February 2018 relating to the child. It accepts her evidence relating to annexure B to the father’s Affidavit filed 9 March 2023. In particular, it accepts her evidence that in the period leading up to the parties’ final separation it was a very emotional time for the mother and that deep down she did not intend to carry out what she had stated in the above letter and text messages.
Evidence of the paternal grandmother
The paternal grandmother impressed as wanting to be a significant part of the child’s life. She has not spoken with the mother since the parties’ separation. The father and child visit her home each alternate Friday or Saturday evening.
The Family Report
The Family Report writer was Ms J, Family Consultant and psychologist, and her report is dated 21 April 2022 (Exhibit P).
The Court does not propose to set out the entirety of the contents of the Family Report.
The father was interviewed by the Family Report writer.
The father stated that he does not know if the child has autism or not:
27.[Mr Bertram] stated that [Ms Kade] has been trying to find something wrong with [X] since he was born. He explained that [X] is having behavioural therapy due to “behavioural problems.” [Mr Bertram] said that in comparison to him, [Ms Kade] does not discipline [X]. [Mr Bertram] explained that when [X] had a tantrum “there is a way of dealing with it.” [Mr Bertram] did not provide a further outline of how he manages [X]’s behaviour if he was distressed.
28.[Mr Bertram] said that the medical professionals who have seen [X] and made diagnoses have based all of these on [Ms Kade]’s input. He said that him not being able to provide information to the treating doctors has meant that they do not have a full picture of [X]’s capabilities. [Mr Bertram] emphasised that “there is a lot of stuff that I don’t believe is true, from what I see I don’t see that is the case, because I have seen it from my eyes” in regards to [X] having autism.
29.[Mr Bertram] stated that [Ms Kade] makes false allegations and “doctor shops, lawyer shops and police shops.” He explained that [Ms Kade] will change providers if they do not provide her with the information that she wants. When the [R Authority] questioned about [X] being approved for NDIS funding, [Mr Bertram] said that the NDIS is money based and “the more stuff they get the more money in their pocket.” [Mr Bertram] stated that [Ms Kade] applied for the NDIS funding because [Ms Kade] said that [X] is “a bit delayed in things,” but he was not sure if [X] was delayed.
30.Contrary to this, information provided by a report from the [S Clinic] by [Ms T] (included in [Mr Bertram]’s Affidavit, filed 3 September 2020) reported that [X] (aged 1 year of age at the time of this assessment) has “severe speech and language delay moderate global developmental delay and challenging behaviours with early intervention recommended.” [Ms T] also recommended a referral for further assessment, including an assessment for autism.
…
33.In regards to [X] spending time with him, [Mr Bertram] explained that he is making this proposal due to the current situation at [Ms Kade]’s house (discussed in Child Safety and Well- being section). When asked why he was proposing equal time if he thought [X] was at risk in [Ms Kade]’s care, [Mr Bertram] said that he did not have a choice. He said that he did not believe that an Order would be made for [X] to live with him. [Mr Bertram] stated that “I have every right to him ([X]), I am his father.” [Mr Bertram] stated that he did not want to be a part-time father. However, he said that whilst he did not want [X] to come from a broken home, there was no benefit to staying in a toxic relationship. …
The mother was interviewed by the Family Report writer:
35.[Ms Kade] said that [X] has been diagnosed with autism and along with associated behavioural difficulties [X] experiences severe constipation (this can be a common symptom experienced by children with autism). [Ms Kade] said that she first noticed differences in [X]’s development when he was six months old. She said that [X] was not connecting with her, and that he was not eating as she would expect. [Ms Kade] said that she received support from her sister-in-law who advised her to make an appointment with [Dr U], paediatrician. … [Ms Kade] said that she manages [X]’s behaviour by sitting down next to him until [X] indicates that he is ready to receive support from her. She said that she does “try and push him a little bit,” in relation to accepting her support. [Ms Kade] said that [Mr Bertram] does not believe that [X] has autism and will tell her that [X] does not demonstrate this behaviour at his house. …
36.[Ms Kade] said that her proposal for [X] to spend time with [Mr Bertram] allows [Mr Bertram] to be involved in [X]’s school life once [X] commences school. She said that she would like for [X]’s routine to be consistent, including consistency in each parent’s house. [Ms Kade] said that due to [Mr Bertram]’s behaviour with [X]’s therapists (discussed in Child Safety and Well-being section) that she is seeking to have sole parental responsibility for [X]. She said that she would want to keep [Mr Bertram] updated in regards to [X]’s treatment.
The maternal grandmother was interviewed by the Family Report writer:
38.… [Ms V] said that [X] struggles with changes to his routine and he requires time to prepare if changes are to occur. She explained that [X] can “have a meltdown” and that she and [Ms Kade] have strategies to control his behaviour when this occurs. …
39.… [Ms V] described [Mr Bertram] as a good father, but that she did not understand why [Mr Bertram] wanted to “bury his head in the sand” and not accept [X]’s diagnosis. [Ms V] said that [X] needed support. [Ms V] said that [X]’s therapy helps him and it also helps her and [Ms Kade] in developing strategies to assist [X] and to understand more about autism. [Ms V] said that [Mr Bertram] would also benefit from being involved in [X]’s therapy. She said, however, that because [Mr Bertram] does not agree with the therapists and has been threatening towards them he has impacted [X]’s ability to engage with therapists. She explained that [Mr Bertram] agrees that [X] is “a little bit behind,” but that he “needed to be on-board and he is not.”
40.[Ms V] said that [Ms Kade] focuses on having a routine for [X] and providing him food that he will eat. [Ms V] said that [X]’s meltdowns are “difficult to deal with” and that they can be triggered by changes to his routine. [Ms V] said that [Ms Kade] has “worked really hard” to provide stability for [X].
Under the heading ‘Family Violence’, the Family Report writer noted:
41.… [Mr Bertram] alleged that [Ms Kade] took Panadol tablets in an overdose attempt. [Mr Bertram] stated that he and [Ms Kade] would scream, yell and call each other names. [Mr Bertram] described this as normal behaviour in any relationship. …
42.… [Mr Bertram] said that on one occasion [Ms Kade] refused to accept his telephone call to [X], telling him that [X] was asleep. [Mr Bertram] said that he asked to make a video call to enable him to see [X] and that was rejected by [Ms Kade]. [Mr Bertram] stated that he was “a little bit annoyed” and he rang her “a few times” because [Ms Kade] would not take the call. [Mr Bertram] said that, because he was concerned about [X], he called police to request a welfare check. [Mr Bertram] said that in response, [Ms Kade] called the police in an attempt to get the ADVO. …
…
47.… [Ms V] explained that she and [Mr Bertram] have a generally amicable and respectful relationship which helps when [X] spends time with him. She alleged that, however, there was one occasion (approximately six months prior to the interview) when she was five minutes late and “he lost it.” [Ms V] explained that [Mr Bertram] came to the car and “just kept going and going and going.” [Ms V] elaborated saying that [Mr Bertram] was telling her that [Ms Kade] was taking [X] away from him and that she ([Ms V]) had “obviously not read the Court orders”. [Ms V] said that she was disturbed and nervous and she was unable to comprehend what he was saying. [Ms V] said that she will now not allow [Mr Bertram] to treat her that way. [Ms V] said that she facilitates the changeovers because she is concerned about [X] and because she lives with [Ms Kade] and [X] she “put up with this” to maintain the communication with [Mr Bertram]. [Ms V] said that she still “wait(s) for something,” regarding [Mr Bertram]’s abusive behaviour towards her. [Ms V] said that she does not want to be put “in a difficult position,” as she was previously. [Ms V] alleged that [Mr Bertram] is verbally abusive to [Ms Kade] in text messages and that [Mr Bertram] will only correspond with her ([Ms V]).
Under the heading ‘Child Safety and Well-being’, the Family Report writer noted:
48.[Mr Bertram] expressed concern about [X]’s physical safety with [Ms Kade]. [Mr Bertram] expressed concern that [Ms Kade] does not provide care for [X]. He stated that [Ms V] “does everything for him.” [Mr Bertram] recounted an incident when [X] was unwell and wanted to stay with [Ms V] when [X] was due to spend time with him. [Mr Bertram] said that [X] became “hysterical” and when his attempts to calm [X] down did not work, he made the decision to leave [X] with [Ms V]. …
…
51.[Ms Kade]’s primary concern about [X]’s safety and well-being with [Mr Bertram] was that [Mr Bertram] was unable to accept [X]’s diagnosis of autism. …
52.[Ms Kade] further expressed concern that because [Mr Bertram] does not support [X]’s diagnosis that he does not follow the recommendations about behaviour management when [X] has a meltdown. [Ms Kade] explained that, during a changeover, [X] had a “meltdown” and [X] was hitting and biting [Mr Bertram]. [Ms Kade] alleged that in response [Mr Bertram] told [X] that “if you bite me I am going to bite you back” and then [Mr Bertram] smacked [X]. … [Ms Kade] said that the behaviour therapist does not want to engage with [Mr Bertram] due to his behaviour towards her (the therapist). [Ms Kade] said that she had tried to involve [Mr Bertram] but his behaviour had negatively affected [X]’s ability to access treatment and therefore negatively affect [X]’s well-being. She explained that the occupational therapist is well versed in [X]’s needs and further, that [X] is comfortable with the occupational therapist. [Ms Kade] said that she seeks out assistance for [X] because she wants to see [X] live an independent life. [Ms Kade] said that [Mr Bertram]’s behaviour towards [X]’s therapists has resulted in her doing “the bad thing” and keeping [Mr Bertram] from being involved in [X]’s therapy.
53.[Ms Kade] alleged that [Mr Bertram] tried to have [X]’s access to NDIS funding cancelled and her submitting a new application caused “a lot” of conflict between them. She said that [Mr Bertram] continues to assert that she has manipulated the therapists. [Ms Kade] stated that [Mr Bertram]’s behaviour is impacting [X]’s ability to access therapy. …
Under the heading ‘Adult relationships’, the Family Report writer noted:
59.[Mr Bertram] reported that he and [Ms Kade] do not communicate because she “refuses to talk” to him. … [Mr Bertram] stated that he communicates with [Ms V] about [X].
60.[Ms Kade] reported that she and [Mr Bertram] do not communicate. She said that when she attempts to speak to [Mr Bertram] regarding [X], [Mr Bertram] will not engage with her. She said that [Mr Bertram] will call her a “lot of names” and it is very hard to communicate with him. Additionally, [Ms Kade] said that [Mr Bertram] tells her that she is causing [X]’s problems.
61.[Ms V] said that [Mr Bertram] and [Ms Kade] do not have a good relationship. She explained that [Mr Bertram] will direct questions about [X] to her rather than [Ms Kade], even if [Ms Kade] is with her. [Ms V] said that she is trying to maintain a good relationship between herself and [Mr Bertram] to “keep the peace between this family and his.” [Ms V] said that she had seen messages from [Mr Bertram] to [Ms Kade] and they are “nasty and abusive.” She said that she finds it hard not to say something to [Mr Bertram], but that she is predominantly focused on supporting [X].
There was no play interaction or interview with the child by the Family Report writer for the purposes of the Family Report.
Under the heading ‘Evaluation’, the Family Report writer stated, inter alia, that the child’s presentation appeared atypical, compared to other children of his chronological age, and was of some concern. The Family Report writer stated that the parties provided different accounts of the child’s development and behaviour. She stated that while it is possible that the reported differences are due to both parties providing an account of the child’s needs consistent with their proposals, it appears more likely that the difference is due to one of the parties having a limited understanding of, and therefore limited capacity to meet, the child’s needs.
The child appeared to have generally positive and established relationships with each parent. However, the Family Report writer stated that given the child lives predominately with the mother and spends time with the father, his primary relationship is likely to be with the mother.
The Family Report writer also stated the following:
68.[Mr Bertram] placed the responsibility for [X]’s behaviour on [Ms Kade]’s parenting, rather than it being a consequence of [X]’s diagnosis of autism. Autism is a serious developmental disorder that impairs a person’s ability to communicate and interact. [Mr Bertram] and [Ms Kade] holding different views regarding the nature of [X]’s needs raises concerns that there will be limited consistency in compliance with any recommended interventions, and therefore in [X]’s needs being met, between the parties’ households. This is likely to have a detrimental impact on [X]’s development and wellbeing and may result in him being unable to reach his full potential. It may also contribute to conflict between the parties, which is highly likely to have a detrimental impact on [X]. It would therefore be recommended that both parties are guided by the recommendations of any assessing and/or treating practitioners, unless otherwise agreed.
69.Additionally, there would be significant concern if [Ms Kade]’s allegation that [Mr Bertram] has abused members of [X]’s treatment team has veracity, because this is likely to (and has apparently in the past) impact [X]’s ability to receive appropriate treatment. [Ms Kade] reported that this has caused some treating professionals to refuse to work with [X] due to [Mr Bertram]’s treatment of them. Professionals refusing to work with [X] is likely to delay interventions and cause distress to [X] due to unnecessary changes to his treatment team. If this behaviour impacts [X]’s ability to access appropriate intervention then this is likely to impact his progress with interventions. [Ms Kade] needs to be supported, rather than undermined, when engaging in therapies for [X]. Regardless of the reasons behind [Mr Bertram]’s beliefs (as to why he does not accept the child’s diagnosis) it would appear that this issue has the potential to continue to drive conflict between [Mr Bertram] and [Ms Kade]. [Mr Bertram] may benefit from engaging with [C Organisation] to gain an understanding of [X]’s condition and ways that he can assist [X] when [X] is spending time with him.
…
71.[Mr Bertram] and [Ms Kade] each reported that there was family violence in the relationship between them. Due to the ongoing difficult relationship between [Mr Bertram] and [Ms Kade] this continues to impact the co‑parenting relationship between them. It appears that the reported physical abuse between each of them, regardless of the primary perpetrator, was of low intensity and lethality with each reporting that it consisted mainly of verbal abuse and throwing household objects. This continued negative relationship and verbal abuse in relation to [Ms Kade]’s parenting is likely to affect her ability to meet [X]’s needs and additionally, negatively affect the [X]’s emotional and physical well-being. In this instance, [X] living with each parent equally would not be recommended.
72.Further to the reported family violence, it appears that [Mr Bertram]’s and [Ms Kade]’s parenting relationship is characterised by inconsistent communication (with the majority of the communication regarding [X] to be between [Mr Bertram] and [Ms V]), limited trust in the other as a parent, and dispute regarding [X]’s diagnosis and treatment. It appears that the poor parenting relationship between the parties is likely to have had a detrimental impact on [X], including him being exposed to the parental dispute regarding parenting arrangements and his treatment. This raises concerns that if this behaviour continues then [X] will continued to be exposed to parental conflict which is likely to have a detrimental impact on his psychological well-being.
73.The apparent nature of the parenting relationship between the parties, combined with [Mr Bertram]’s apparent negative views regarding [Ms Kade], and [Mr Bertram] dismissing the need for [X] to receive intervention for autism combined with the potentially detrimental impact of this on [X], contraindicates an equal time arrangement as being in the [X]’s best interests. Therefore, such an arrangement would not be recommended and it would be recommended that [X] live primarily with [Ms Kade]. Given the assessed nature of the [X]’s relationship with each parent, [X] is likely to benefit if the current arrangement stays stable and any changes made are done over a period of time because [X] is likely to find changes in his routine challenging, which may result in [X] experiencing emotional and/or behaviour difficulties. There are benefits to [X] having arrangements that conform to a set pattern, thus providing stability, consistency, and predictability for him. Additionally, this arrangement is likely to provide some protection for [X] from the parental dispute.
74.It would therefore be recommended that the current arrangements for [X] to spend time with [Mr Bertram] remain in place until [X] commences school. Once [X] commences school it would be recommended that [X] spend time with [Mr Bertram], each alternate weekend, from Friday afternoon until Monday morning (with changeover occurring at school or a neutral venue if the school is closed), with provision for school holidays and days of celebration.
75.[Mr Bertram] and [Ms Kade] do not have a co-operative co-parenting arrangement. This combined with a dispute over [X]’s diagnosis raises concern that such an arrangement would not be able to be sustained by [Mr Bertram] and [Ms Kade] in the future. In the circumstances where the Court finds that there is no veracity to [Ms Kade]’s allegations about [Mr Bertram]’s behaviour towards [X]’s treatment team, then consideration could be given to [Mr Bertram] and [Ms Kade] sharing parental responsibility for [X]. In the circumstance that it is determined that [Mr Bertram] and [Ms Kade] share parental responsibility for [X], it would be recommended that they each participate in a multi-session parenting after separation course, such as [W Program]. However, if the Court finds veracity that [Mr Bertram] disagrees with [X]’s diagnosis despite evidence to the contrary and has abused members of [X]’s treatment team subsequently impacted [X]’s ability to access suitable treatment, it would be recommended that [Ms Kade] have sole parental responsibility for [X].
The Family Report writer recommended that:
(a)The father engage with autism services to assist him in understanding the child’s diagnosis and treatment recommendations;
(b)The child live with the mother;
(c)The child continue to spend time with the father as he does currently, until the child commences school;
(d)When the child commences school, that the child spend time with the father from Friday afternoon until Monday morning (the Court interpolates here that it is clear from the whole of the Family Report writer’s evidence, including her oral evidence, that she was proposing such time on a fortnightly basis);
(e)The mother have sole parental responsibility for the child, to reduce the child’s exposure to conflict over parenting arrangements and his treatment. It is recommended that this does not preclude the father from being informed of major decisions regarding the child and/or from the father obtaining information from the child’s school about the child’s progress.
The Family Report writer gave oral evidence.
The Family Report writer was questioned by the ICL’s counsel. Inter alia, the Family Report writer stated that she had read the report of Dr K, psychologist (Exhibit A) and she stated that the matter which she noticed in that report was that it confirmed that the child’s diagnosis of autism and she thereby considered the recommendations of the psychologist valid. She had no concerns with the report.
The Family Report writer stated that it was concerning that the father considered that some of the child’s deficits were caused by environmental factors in the mother’s home.
Counsel for the ICL asked the Family Report writer what the impact would be upon the mother and the child in the event that the father was going to use derogatory taunts against the mother in the future, and this reply was given:
[WITNESS]It’s – it might – it’s likely to make the mother feel very unsure of her ability to communicate with [Mr Bertram]. It – it would make communicating difficult if you were going to get derogatory terms or abuse back when you tried to communicate about the child. A child who’s placed in – or exposed to parental conflict, or a parent that – well, a parental conflict is detrimental to a child’s wellbeing. They can experience more depression, more anxiety, they can have difficulties with peer relationships, they can have trouble with sleep, and physiology. So they can get things like stomach aches, or headaches, or – or experience physical symptoms when they – when they’re feeling anxious. They would also pick up on if the – their primary carer is anxious as well, and that can impact the level of care that’s provided for that child, because they might be more irritable, they might lash out more themselves. So there – there’s a number of things that could happen if conflict and abuse is ongoing in a co-parenting relationship.
Counsel for the ICL raised with the Family Report writer that the father, during his cross-examination, appeared reluctant to express any gratitude towards the mother for her insight into the child’s autism, and asked the Family Report writer what the impact of that might be on the mother and on the child moving forward, and this evidence was given:
[WITNESS]Not accepting a – a diagnosis, or continually dismissing information about the child, is going to make the co-parenting relationship contentious…raising a neurodivergent child has additional challenges to a neurotypical child, and that puts an additional burden on the – on the parenting relationship for the primary parent to – if that’s not supported even in a separated relationship, it can make parenting additionally difficult.
Counsel for the ICL asked the Family Report writer whether she supported an equal time arrangement to commence after making of orders, to which the Family Report writer answered in the negative, and this evidence was given:
[COUNSEL] Can you tell the court why?
[WITNESS]I think that a child – a young child that is neurotypical already finds a week about arrangement quite difficult, and you have to have a high level of cooperation and communication between parents to make that arrangement work for the child. When you add autism diagnosis on top of that, then that makes that lack of communication between parents very difficult for [X], and you’re also looking at travel burden on a child, having two sets of rules, and also the fact that if you’re not supporting the child’s diagnosis, the child’s treatment regime, getting them to appointments, things along those lines, the inconsistency is going to be very detrimental to a child’s wellbeing.
The Family Report writer was questioned in relation to routine and consistency across the parents’ households and this evidence was given by her:
[WITNESS]Children generally can cope with some differences in each household. A young child and an autistic – would find that a lot more challenging. So the more consistent that each household can be is the – the – less cognitive demands on the child, and, therefore, less anxiety about change. So it – it would be better for the child if the routines were very similar.
[COUNSEL]And the routine and consistency of a child across two households, would you agree, would be better served if there was – if there were able to be a good co-parenting relationship between both parents?
[WITNESS]Yes, because you would need to be sharing a lot of information about a child, what they’ve done at school, what therapies are working, what needs modifying, what a sleep routine is like, if – if they’re upset, if they’re unwell. There – there’s a lot of information that needs to be shared.
The Court asked the Family Report writer, in relation to an equal time arrangement being able to work, whether there needed to be a greater level of communication between the parents compared to a lesser arrangement, to which the Family Report writer answered in the affirmative, and gave this explanatory evidence:
[WITNESS]Because you’re – you know, the child would be getting information from school, it – it would be things like homework or parties. So, like, the social – social calendar, sort of, events for school. They would need to be communicated if they’re in the other parent’s week. The child might leave something at the other parent’s house, and that – that needs to be collected. A shoe or a uniform, for example, might be left at the other parent’s house, and – and be needed. If the child’s having regular therapy, homework tasks from that might need to be communicated as they change. Feeding routines, sleeping routines would need to be communicated as they change. There – there’s generally a lot of cooperation between households where an equal-time arrangement occurs especially with a young child that can’t manage those tasks by themselves and needs support.
[THE COURT] And, [Ms J], with an equal-time arrangement, if you assume that these parties haven’t talked over the phone with each other or had a face-to-face conversation since separation in about Easter 2018, does that tell for or against an equal-time arrangement?
[WITNESS]It would be against because you would hope that there would because (sic be) communication occurring already. If it – if it’s four, nearly five years on with no communication, or very limited communication, it doesn’t bode well for that occurring in the future.
[THE COURT] Well, I should have said assume that there has been some level of text message communication since separation to date but assume that the father usually communicates with the maternal grandmother in relation to issues pertaining to the child. Does that change your view?
[WITNESS]No.
The Family Report writer stated, in relation to FaceTime calls, that one needs to think in terms of attention span and minutes per age. She stated that one has about five minutes of attention span for a five-year-old child, so expecting a child to be on the phone for half an hour at five years of age is probably very unlikely. She stated that FaceTime should continue but with the parties having different expectations. She stated, by reference to the report of Dr K, psychologist, that she would assume that the child would need someone with him, prompting him or supporting him during the phone call, but that he could do some training with his therapist around phone calls with a view to eventually having phone calls by himself.
The Family Report writer was cross-examined by senior counsel for the father.
The Family Report writer was questioned in relation to parenting applications like telephone applications that might facilitate communication between parents and this evidence was given by her in relation to such applications:
[WITNESS]Those types of things can be useful. I still – even with an application, I still believe that there – there has to be a level of respect and cooperation between parents for co-parenting, and shared parental responsibility to be non-detrimental for the child.
The Family Report writer was questioned about the parties’ lack of a cooperative co-parenting arrangement in the context of the issue of parental responsibility, and this evidence was given:
[COUNSEL]And in terms of that, if those difficulties could be overcome by a better attitude towards each other through the attendance of courses, I think that you recommended, and also in the interim period, continuing to – well, not continuing, but to use an application such as the ones that you’ve described before, that would alleviate your concerns, wouldn’t it, about the last remaining reason relating to parental – yes – sole parental responsibility; is that right?
[WITNESS]Yes. If they were able – if they were able to successfully complete the course and implement a different relationship with each other, then, yes, that would alleviate that concern.
The Family Report writer was questioned in relation to paragraph 73 of the Family Report relating to the issue of equal time.The Family Report writer stated that besides the reasons stated in paragraph 73, which contraindicated an equal time arrangement as being in the child’s best interests, the issue of family violence also was a consideration, and she gave, in part, this evidence:
[COUNSEL]Do you – are you concerned that there would be an ongoing verbal problems between the two parents?
[WITNESS]There could – there – there is possibility of that. I mean, you know, it – it – it has occurred in the past, and – and it – it hasn’t occurred more recently, as you’ve said, but they also aren’t speaking. So I – I do have concerns that the verbal abuse was quite of a high nature in terms of the language used, and even if [X] is not witness to it, he is impacted by the impact on the parent having that behaviour occur against them.
The Family Report writer was asked to assume that there had been no family violence, as defined under the Family Law Act1975 (Cth), including derogatory taunts, beyond 2019, and was asked what the family violence was that she was concerned about occurring in the future, and this evidence was given:
[WITNESS]I think if that was the current position and they were able to change the relationship that they have, or – or even maintain what they currently have, and that’s not occurring, then that would alleviate concerns of it occurring in the future. But it doesn’t change a concern, or the impact of that verbal abuse would have had on a person when it occurs to them, because it can be intimidating, it can be experienced as fearful, it can have a negative impact on – on the person that it’s occurring to. So one element of those things, if it – if it’s the only element, does not mean that it’s not a negative impact on the person that it occurs to.
The Family Report writer stated, in relation to the parties developing a positive co-parenting relationship, that it would mean the parents taking a big mind shift of leaving behind the lack of sharing information and the view that the parents hold of each other, and moving forward with a different intention. She agreed that both parties would need to acknowledge that the child was the person that was important, that they need to put their feelings aside about each other, that they need to communicate, and move on, however she stated that this can also be very difficult to do.
The Family Report writer stated that 50/50 shared care is a very challenging environment for a child to live in, and especially a neurodivergent child, even with parents who are very cooperative and have a cordial relationship.
The Family Report writer gave this evidence in relation to children behaving differently in different households:
[COUNSEL]In terms of that, I want you to assume that the child is capable of sleeping in his own bed when he spends nights at his father’s house?
[WITNESS]Yes. Okay.
[COUNSEL]Does that in any way change your view about whether or not the child is capable of sleeping in his own bed?
[WITNESS]It – it wouldn’t be unusual for him to need different levels of comfort from different parents. Children do behave differently with different people.
[COUNSEL] That’s, I suppose, part of the ---?
[WITNESS] He----
[COUNSEL] ---environmental factors that we talk about?
[WITNESS]---Well, he – he may feel more – more able to express all his emotions in one house versus another….I wouldn’t be able to say the reasoning for it, but you – in – on a general basis, you do see children who will have more emotional outbursts with one parent because they know that parent will accept the emotional outburst and give them the comfort that they need in that scenario, for example, or a parent could trigger an emotional outburst more in a different environment. It’s very hard to say. It would depend on the specific child, but they do behave differently in different houses, for different reasons.
The Family Report writer was questioned by counsel for the mother.
The Family Report writer was asked what it was about the child’s presentation to her that caused her to think that it was atypical. She stated that the child’s language was not at a level that she would have expected in his interaction with her and, further, that the child would not separate from the mother and come with her even for a brief period. She stated that such behaviours by the child can be consistent with symptoms of autism spectrum disorder.
The Family Report writer agreed that a child requiring routine and stability in his life is something that is typical of people with an autism spectrum disorder, and she stated, inter alia:
[WITNESS]It’s more reducing the cognitive demands on a child to anything – any change requires new processing of information, new time spent feeling comfortable in that environment. So we’re trying – you try to reduce the demands that can be controlled, so that child can use their abilities to deal with things that do change that you – you have no control over.
The Family Report writer described a meltdown in the child as follows:
[WITNESS]It’s an – an overload of – of sensory input, so the ability to hold in emotions can – or manage your behaviour in a situation can be, like, suppressed. So, yes, they – they cry or kick, or get aggressive as – because they don’t necessarily have the language or the ability to explain why they’re experiencing a difficulty in a change of the situation.
The Family Report writer was questioned in relation to the mother’s evidence that the child has a safe place in her bed. The Family Report writer stated that it is not unusual for an autistic child to have a safety mechanism.
The Family Report writer agreed that she wondered whether this was a case where the co‑parenting relationship was sufficiently cooperative for there to be equal shared parental responsibility. She agreed that part of that view was based on the mistrust between the parents. She agreed that the father’s previous derogatory remarks to the mother (such as “dumb”, “retarded”, “cunt”, “manipulative liar”) was the sort of language which was likely to undermine trust between the parents. She agreed that the father’s unwillingness to pay off arrears of child support from a fund of $10,000 that he held on behalf the child, was likely to undermine trust between the parents. She agreed that the lack of communication that has occurred between the parents, other than by way of text message, were matters of concern in terms of the co-parenting relationship, and that, from what had been explained to her, there had not been a highly cooperative co-parenting relationship.
The Family Report writer was questioned in relation to the father’s statements to Dr K, psychologist, that he does feel the child is delayed but that it is “environmental” and “caused by” the mother; the Family Report writer was asked whether those statements were of concern to her and this evidence was given:
[WITNESS]Yes. Parenting does not cause autism. Autism is a – a – we call it a neurodivergency because the brain of an autistic child works differently to a neurotypical brain. The – the two parts of the brain, to put it relatively simply, your frontal lobe and your memory centres of your brain don’t communicate, so you – you have – don’t communicate well, I should say. So they – it is not something that is caused by parenting. It is not something that’s caused by food that the children eat, or – or things like that. It is something that is developmentally – a child is born with it. It doesn’t present until – generally, until children start to speak, or – or they miss milestones. So, generally, you know, you can – a diagnosis or a suspected diagnosis could occur around 18 months, but, generally, it’s three to five that you will get a – a formal diagnosis for a child.
[COUNSEL]And I’m right to say, am I not, that early intervention is important in relation to that diagnosis?
[WITNESS]Very much so. Yes.
[COUNSEL]And why is that?
[WITNESS]Because of the astounding amount of change that the brain goes through in the early years of a person’s life. Like, your – your neural pathways are much more malleable the earlier that you are in your lifespan. It is much harder to change the older you get.
The Family Report writer was asked whether the father’s statement to Dr K, psychologist, that the mother was a lazy parent was of concern, to which the family report writer replied in the affirmative. She stated that this was of concern in relation to the father’s proposals for equal shared parental responsibility and equal time; she stated that having a positive regard for a co-parent is important when sharing parenting because the child is very aware of the nuance of how each parent feels about that other parent.
The Family Report writer’s attention was drawn to a text message from the father to the mother, set out in annexure D to the mother’s affidavit filed 27 February 2023, in which the father had stated, inter alia, “You still trying to get an diagnosis for autism? Is that so you can scam the government for more money?”. The Family Report writer agreed that such statement by the father would be concerning in relation to the trust between the parents.
As to the father’s proposed order that the child be baptised in the Catholic Church, opposed by the mother, the Family Report writer was asked whether she would recommend such proposed order. She stated that her concern with such an order was that, “that is more of the conflict between the parents, and… I don’t think it would have a significant impact on the child’s well-being at the moment.”
In relation to parental responsibility, the Family Report writer gave this evidence:
[COUNSEL]So is this the situation, that if his Honour is satisfied that there are still problems of communication between the mother and the father, if there is no established method for decision making, if there is a hostility between the parents, that you would persist with a recommendation that there be sole parental responsibility?
[WITNESS] Yes.
…
[COUNSEL]I want to suggest to you that it is in [X]’s best interests, as it is in the best interests of any child, to know that both of his parents have been involved in decision making?
[WITNESS]Yes.
[COUNSEL]And that, in this case, that might be – that benefit to [X] might be best achieved by an arrangement where the father was given information in relation to future decisions, and an opportunity to make contributions to that decision?
[WITNESS]Yes.
[COUNSEL]But that given the co-parenting relationship – or the lack of co-parenting relationship between the father and the mother, and the hostility that has existed between the families in relation to this matter, that the interests of [X] are not best served by an order for shared parental responsibility, do you agree with that?
[WITNESS]Yes. Yes. I do.
In relation to the prospect of the parties creating a cooperative co-parenting relationship through the attendance upon a course, this evidence was given:
[COUNSEL]I think you’re aware that there has not been any face-to-face communication between the parents since separation, and there has been no oral communication, that is they appear not to have communicated over the telephone, you understand that?
[WITNESS]Yes.
[COUNSEL]And to the – I want to suggest to you, at least to the extent to which communication depends upon trust, that trust is undermined, and continues to be undermined, by the father in, for example, his reference to the mother in 2020 as “retarded”, his reference to his – to the reasons why he was not prepared to pay arrears of child support, and in his comments in the recent report of [Dr K] that the mother was the cause of delay in [X], do you accept that all of those things are likely to undermine trust?
[WITNESS]Yes.
[COUNSEL]If – it would be very optimistic, would it not, to imagine that attendances on court – attendances on courses by these parents would have the impact of creating a cooperative relationship given the lack of evidence of that at any time in the past?
[WITNESS]Yes. I think I – sorry. Yes. I think that there has been no – if there has been no communication between them to date, and they haven’t been able to get to an – a level of some cooperation, then there is reservations that one intervention would make a difference – a significant difference.
The Family Report writer gave evidence in relation to the mother’s view relating to discipline of the child and this evidence was given:
[COUNSEL]The mother’s response in relation to her own child, in relation to discipline, was to say that [X] does not need discipline. He needs positive reinforcement for good behaviours. Do you have any comment to make about that?
[WITNESS]It – it is important to provide encouragement and redirection rather than a physical punishment for children. So, yes, that reinforcement for positive behaviour is a useful strategy to have.
The Family Report writer confirmed in relation to the child’s sleeping patterns that a consistent routine was important.
The Family Report writer gave this evidence in relation to the parties’ co-parenting relationship in the context of the father’s proposals for equal time:
[COUNSEL]And in terms of consistent routine, the – my understanding is that if – leaving to one side the diagnosis of autism spectrum disorder, your view is that the co-parenting relationship between [Mr Bertram] and [Ms Kade], in this case, is not one that provides you a basis for support for an equal-shared parental responsibility order?
[WITNESS]That’s correct. Yes.
[COUNSEL]And is that also true of any order that would lead to more time for the father than what I will call the extended weekend time that is proposed halfway through next year, that is the arrangement of Friday to Monday?
[WITNESS]Yes.
[COUNSEL]And do I take it that, in relation to [X], that is made more compelling because of the diagnosis of autism spectrum disorder?
[WITNESS]That’s correct.
[COUNSEL] And why is that?
[WITNESS]Because of the abilities of – the impact of the – if the relationship is what it has been described in that there’s no cooperation, there’s no communication, then you’re asking a child with a level of challenges, and [X]’s diagnosis of autism is the – the moderate range if we talk on the spectrum. So he has got a – a range of challenges that have already been assessed that they are going to be made more difficult by parents that do not trust or communicate and can navigate changes that will occur throughout going to school, interacting with peers, changes to therapies, changes to homework, things along those lines.
[COUNSEL]And am I right to think that given that the – he has been in the care of his mother all his life, that he describes his safe place as being in his mother’s household, that the need – that his own personal security is tied up with his life with his mother in that household?
[WITNESS]From – from what I have heard, it would – it has been described as – as his mother’s bed. So if that’s what [X] is saying, then that makes sense. Yes.
The Court accepts the evidence of the Family Report writer subject to any contrary view of the Court, whether express or implied, as indicated below under s 60CC of the Act.
RELEVANT LEGAL PRINCIPLES
Section 60B of the Act sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: s 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3). Section 60CC(2A) provides that in applying the primary considerations (the meaningful relationship and need to protect primary considerations) the Court should give greater weight to the need to protect primary consideration (and the Court should state, that in this parenting case, it does so).
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: s 61DA of the Act.
Under subsection (4) of s 61DA of the Act, the above 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.
The best interests of the child
Section 60CC considerations
Subsection (2a) – The benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration
In Saif & Saif [2020] FamCA 119, Foster J stated:
95.The reality is, in the context of this interim hearing, that the Court is obliged to have regard to the maintenance and promotion of the children’s relationships with both parents. A relationship may be less than optimal but nonetheless meaningful: (Godfrey & Sanders [2007] FamCA 102 at [33]-[36]; Sigley & Evor (2011) 44 Fam LR 439 at [182]).
96.In Mazorski v Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:
[26]What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
97.In McCall & Clark [2009] FamCAFC 92 at [121] the Full Court accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
The child has a meaningful relationship with the mother and will benefit from a continuance of that relationship. The child’s primary attachment is to the mother; the mother has been his primary carer from birth to date.
The child has a meaningful relationship with the father and will benefit from the continuance of that relationship.
Should the Court make the Independent Children’s Lawyer’s proposed orders providing, inter alia, that the child continue to spend time with the father two nights each fortnight and then progress to three nights each fortnight after six months from the date the child commences school (predicted to be in 2024), there is a significant prospect that the child’s present meaningful relationship with the father can be maintained and enhanced.
The Court accepts the mother’s evidence as to the strategies that she proposes to use to forecast to the child an increase in his time with the father (from two nights each fortnight to three nights each fortnight).
Subsection (2b) – The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: a primary consideration
The parties’ relationship was marred by regular arguments, particularly towards its demise. The father often blamed the mother for the family’s difficulties and was verbally critical of her. The mother felt that she was not receiving sufficient, if any, emotional support from the father.
The father admitted in oral evidence that he had told the mother that she was “dumb”, “the retarded one”, a “cunt”, a “liar”, a “manipulator”, a “con artist”, a “pathological liar”, that she “spoke bullshit”, and was “insecure”, and “unstable”. When the father was asked by counsel for the mother whether he regretted that behaviour he stated that the statements were made in the heat of the moment. Later, the father stated that such statements were made during heated arguments when “things get said. They’re only words.” When asked whether words were not important, the father replied that, “They’re arguments. Everyone has arguments.”
An incident of family violence occurred in or about mid-2019. The father had attempted to physically take the child from the mother at her home. The father began recording the mother on his phone, he refused to leave the mother’s home, and the mother become anxious and afraid and she called the police. The father had told the mother that when the police arrived, they would hand the child over to him, and once they did the mother would not see the child again. The mother did not give the child to the father due to his threats not to give him back. Following this incident the mother grew more fearful and concerned that the father would take the child and not return him. Due to this fear and concern the mother did not feel safe facilitating any further face-to-face time between the child and the father, and she told the father in text messages that she required orders to be in place to ensure that after any time spent by the child with the father that the child would be returned to her.
Post-separation, in text messages to the mother, the father had abused her, calling her a “cunt”, accused the mother of attempting to scam the government in relation to the child’s then prospective diagnosis of autism and stated to her, “maybe your the retarted (sic retarded) one?”. On about 8 June 2021, in relation to the child’s therapies, the father, in a text message to the mother, stated that she was “a joke”, a “spoilt brat”, accused the mother of using the child as a pawn and lying to solicitors and police, and said that the mother should stop trying to have the child labelled as autistic.
Post-separation, during numerous FaceTime communications (ostensibly between the child and the father), the father had verbally abused the mother, after the mother declined to discuss the child’s behaviour over the FaceTime calls, including calling her “a joke” and using vulgar words. After one FaceTime call, the father had texted the mother calling her, “a liar and manipulative”, and told the mother that he could see “straight through (her) bullshit”. The mother became distressed after nearly every FaceTime call and in about February 2021 the maternal grandmother offered and thereafter began to start facilitating the FaceTime calls instead of the mother.
The mother, by reason of the above matters, has felt significantly apprehensive that the father will abuse her in parenting communications; she has chosen for some time now that the father only communicate with her through text messages, and has arranged for her mother to conduct the FaceTime calls and attend face to face changeovers.
Taking into account the above matters, the Court assesses that there is a significant risk that if orders were made for an equal time arrangement or shared parental responsibility that the parties would experience conflict, to which the child may be exposed, and the mother would experience stress and anxiety with detrimental impacts upon her parenting capacity.
On the balance of probabilities, the Court does not accept that the father perpetrated coercive and controlling family violence against the mother.
The Court finds that the mother is a competent and devoted parent for the child. The mother is well attuned to the needs of the child, who is autistic. Historically, she was instrumental in obtaining relevant diagnoses for the child, including autism, after she had formed the view that the child’s development was abnormal. She has sought and put in place therapies for the child and has communicated with health professionals and the child’s carers. She has developed a strategy for parenting the child with autism which is one of, inter alia, reinforcing positive behaviour of the child and being non-punitive. This strategy was spoken of positively by the Family Report writer in her oral evidence.
The mother receives positive and regular childcare assistance from the maternal grandmother with whom she lives. The maternal grandmother follows the mother’s daily routine with the child. The maternal grandmother has a positive influence with the child and she understands how to cope with and manage the child’s behaviours. In relation to an incident on about early 2023, on the balance of probabilities the maternal grandmother had momentarily sworn at the child after the child kicked her leg; the Court assesses that such conduct of the maternal grandmother was uncharacteristic behaviour.
Historically, the father, despite observing delay in the child, refused to accept that there was anything wrong with the child and maintained that the mother’s alleged parenting incapacities, such as a lack of discipline towards the child, were the effective cause of the child’s delayed development and behavioural issues.
The father stated, in oral evidence, that he now accepts that the child is on the autism spectrum, having read the recent report of Dr K, psychologist. However, he still maintains that the mother’s parenting of the child, in particular her lack of parental discipline, has contributed to some aspects of the child’s behavioural issues.
The father has not yet fully developed appropriate parenting strategies for the child with autism. His parenting strategies for the child with autism are different to the mother’s.
The father has not yet contacted C Organisation regarding advice for parenting strategies for a child with autism. However, he has contacted the child’s behavioural therapist for advice although it is not clear that that therapist has provided advice to the father in respect to a child with autism. He has contacted the child’s daycare and pre-school.
The father stated, in relation to his parenting style, that he knows the child’s triggers and “not getting to his triggers”. In this context he stated that the child was a good negotiator. In re‑examination, the father was asked what he does to stop the child’s behaviour escalating and he stated that he tries to talk the child out of it and recently he has begun to confiscate things that the child likes which seems to work. He states he negotiates with the child.
During a changeover, when the child had a “meltdown” and was hitting and biting the father, he told the child that “if you bite me I’ll bite you back”. In oral evidence the father stated, when asked if such a statement to the child was appropriate, that the statement was an empty threat which works with children. The Family Report writer had stated that such parenting by the father was inappropriate.
At about the time of separation the mother’s emotional state was at times labile. The mother’s current mental health appears to be sound, and the Court refers to the Family Report writer’s evidence as the mother’s consultations with counsellors (see e.g. paragraph 57 of the Family Report). Again, the mother endured what was at times a robust cross examination by senior counsel for the father with her demeanour being one of relative calm.
The evidence of the Family Report writer is consistent with the above views of the Court.
The Court gives significant weight this need to protect primary consideration.
Section 60CC(3) additional considerations
(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
The child is now aged six years. No significant view has been expressed by the child and in any event it would carry no weight by reason of his age and likely development stage in particular.
(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The Court refers to its discussion above under the meaningful relationship primary consideration. The child enjoys positive and close relationships with his maternal grandmother and half-sister D. The Court finds that the mother has an amicable relationship with D’s father. The child has a positive and close relationship with the paternal grandmother. It appears that he is comfortable in the presence of and is affectionate with the father’s brother. It appears that he enjoys seeing the paternal grandfather.
(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
The mother has been making major long-term decisions for the child, including in relation to the child’s attendances upon health professionals.
The father has sought to take opportunities to be involved with the child’s attendances upon health professionals, including in relation to attendances relating to the assessment of autism. He has sought to take opportunities to spend time with the child.
(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The mother has maintained the child. The father has maintained the child when the child has been in his care. Post separation the father has paid child support, however he is in arrears by about $5,000. He has funds of about $10,000 set aside for the child’s future development but has declined to pay off the arrears from this fund because he is of the view that the mother will not spend such monies for the benefit of 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 either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The Court refers to its discussions above under the meaningful relationship primary consideration. It refers to its discussions below in relation to the father’s proposal for equal time.
(e) The practical difficulty and expense of a child spending time with and communicating with the 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
Not applicable.
(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
The mother has such capacities.
The father lacks fulsome insight into the needs of the child relating to his autism.
The father, in his oral evidence, stated that he seeks an order for an equal time arrangement. When it was put to him by counsel for the mother that an equal time arrangement would impose upon the child a routine that he was not used to, the father responded by saying words to the effect of, “That’s life. No one ever gets what they want.”
(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 child has been diagnosed with autism and the Court refers, inter alia, to the contents of Exhibit A, the report of psychologist Dr K, and the PECAT report authored by, inter alia, Dr Y, developmental paediatrician, dated 21 December 2021 (annexure D to the father’s affidavit filed 9 March 2023). In that latter report, it was stated, inter alia, that autism was a behaviour disorder characterised by deficits in areas of social communication, social interaction and restricted and repetitive behaviours. The Family Report writer stated, in relation to autism, inter alia, that autism is a serious developmental disorder that impairs a person’s ability to communicate and interact.
The Family Report writer stated at paragraph 73 of the Family Report, inter alia:
73.… Given the assessed nature of the [X]’s relationship with each parent, [X] is likely to benefit if the current arrangement stays stable and any changes made are done over a period of time because [X] is likely to find changes in his routine challenging, which may result in [X] experiencing emotional and/or behaviour difficulties. There are benefits to [X] having arrangements that conform to a set pattern, thus providing stability, consistency, and predictability for him. Additionally, this arrangement is likely to provide some protection for [X] from the parental dispute.
The above PECAT report was signed by Dr Y, a paediatric registrar, and an educational and developmental psychologist. The report had stated, inter alia, that the child’s diagnoses/issues were autism spectrum disorder, Level 2 (requiring substantial support); significant delays in adaptive functioning; average non-verbal and low average verbal intelligence; and severe expressive and receptive language delay (previously diagnosed).
The above PECAT report had stated, inter alia, that the child will continue to benefit from working towards goals relating to his significant behavioural concerns, which are impacting on his learning and development. It stated that the child was highly anxious and avoidant of situations that are unfamiliar or overwhelming for him. It stated that the child has a strong preference for routine and he shows substantial rigidity in his expectations becoming quite distressed when his preferences are not met. He demonstrates meltdowns which are difficult to manage. He can behave in an impulsive and aggressive manner, including pushing and biting others. He lacks an awareness of danger and is at risk of absconding. He struggles to understand the impact of his behaviour on his own and others’ safety and therefore goals relating to these concerns should be made a priority. The report states that given the child’s levels of anxiety and rigidity, he is likely to manage better in predictable and routine situations, and will benefit from a considerable degree of support to prepare for unfamiliar situations, such as when starting formal education. The report states that the child has the benefit of a supportive mother who has a good understanding of his strengths and weaknesses. The report recommends that along with continuing therapies, the mother consider enrolling him in preschool, with inclusion support, which will assist him in his development and to prepare for kindergarten.
The child has been diagnosed with speech delay and has had speech therapy.
The mother suffers from a medical condition and she can experience difficulties in fully processing information when, for example, reading a document.
(h) If the child is an Aboriginal child or a Torres Strait Islander child: 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 the likely impact any proposed parenting order under this Part will have on that right
Not applicable.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The Court refers to its discussions above, in particular under the need to protect primary consideration and additional considerations under s 60CC(3) above.
The Court accepts the mother’s evidence in relation to her declining to facilitate time between the child and the father to the extent requested by the father post separation and prior to early May 2019; following the separation the father had requested an equal time arrangement which the mother had declined. In particular, the mother was of the view that the child was too young to be spending time with the father in an equal time arrangement.
The Court accepts the mother’s evidence in relation to the reasons why she declined to facilitate the child spending time with the father from about 10 May 2019 to about 13 November 2019, the latter date being when interim parenting orders were made.
In particular, the Court accepts the mother’s evidence relating to her concerns prior to about 10 May 2019 that the father would withhold the child and not return the child to the mother. For example, the Court accepts her evidence relating to instances where the father had told her that he might withhold the child and not return the child to her, and where the father had been hostile and verbally abusive to the mother; the Court refers to, inter alia, paragraphs 31, and 36–40 of the mother’s affidavit filed 27 February 2023.
Further, for example, the Court refers to Exhibit E where the mother states expressly in a text message to the father on 24 May 2019, “Once we have some sort of orders in place that he can come, I just would like orders in place to guarantee the return of (the child)..” and on 31 May 2019, “As explained previously, I would like orders in place first to guarantee a return of (the child) and to avoid conflict when it comes to special occasions including birthdays etc”.
The Court accepts the mother’s evidence in relation to why she declined to involve the father directly in respect to certain assessments and treatments for the child’s developmental and behavioural issues, accepts her evidence relating to not involving the father directly in an NDIS interview, and accepts her evidence relating to certain health professional reports not being provided to the father in a timely manner.
In particular, the Court accepts the mother’s evidence:
(a)Relating to the above discussed incident at her home in mid-2019 (discussed above under the need to protect primary consideration) when the father had attempted to take the child from her and the police had intervened;
(b)Relating to her concerns arising out of the father verbally abusing her family GP’s receptionist, including that the father would continue this behaviour;
(c)Relating to her concerns arising out of the father’s communications with the child’s Occupational Therapist, Ms Z;
(d)Relating to her concerns in respect to the father’s view that there was nothing wrong with the child, that the mother was a pathological liar, and that it was the mother causing issues in the child (see, for example, the father’s statements to the mother in the text messages set out in annexure G to the mother’s affidavit); and,
(e)Relating to her concerns that the father was not supportive of obtaining any diagnosis or NDIS funding for the child.
The Court accepts the mother’s evidence relating to her informing the father of various medical appointments, including the results of certain appointments for the child, as well as providing certain documentary information to the father arising out of those appointments. For example, she informed the father as to the results of her appointments with the child and the paediatrician Dr U in May 2019 and 2020. The Court accepts her evidence relating to her informing the father of the hearing test for the child in February 2020 and that the father attended such an appointment, and it accepts her evidence relating to her informing the father of an orthopaedic appointment for the child in February 2020. The father himself refers to attending a paediatrician appointment for the child with the mother in May 2018, attending an appointment for the child with the mother in October 2018 to see Dr BB, attending an appointment for the child with the mother in November 2018 with Dr CC, and receiving a report from a paediatrician Dr U on 12 November 2020.
The mother, through her solicitors, on 4 November 2022, provided to the father’s solicitors the above PECAT report of 21 December 2021, in which a formal diagnosis of autism was made for the child.
The Court refers to the mother’s affidavit evidence from paragraph 69 to paragraph 112 and related annexures to her affidavit referred to in those paragraphs, which evidence the Court accepts.
The Court accepts the mother’s evidence relating to her breach of Order 11 of the Court’s Orders of 13 November 2019 relating to publishing images of the child on the mother’s business social media pages or her business webpage.
The mother, through her solicitor, did not provide the documentation to the father, ordered to be provided to the father’s side on 14 November 2022, in a timely fashion and pursuant to that order; documentation was eventually provided by the mother’s solicitor to the father’s solicitor on about 13 March 2023.
The mother had enrolled the child in preschool without reference to the father. The child had started at preschool in about May 2022. (The mother asserted that she did not think she needed to ask the father because the child’s attendance at preschool was happening in her time, namely on a Friday between 9.00 am and 1.00 pm.)
The mother did not disclose to the father that an exemption had been obtained for the child not attending kindergarten in 2023, and she had no discussions with the father regarding a proposal for the child to attend kindergarten in 2024, and the Court accepts her evidence in these contexts.
The mother has facilitated the child spending time with the father pursuant to the Orders of 13 November 2019. The Court accepts her evidence in relation to not affording the father further time beyond those Orders, including her concerns relating to the importance of routine in the child’s life.
The Orders of 13 November 2019 provided for the father to have FaceTime contact with the child each Monday and Thursday at 6.00 pm, with the length of such contact not being specifically stated in the Order. Over the previous 12 months there were a significant number of occasions when the mother did not facilitate such calls by reason of the child, inter alia, being asleep, grumpy, aggressive, or unwell, with the mother informing the father and usually offering make up FaceTime to him.
(j) Any family violence involving the child or a member of the child's family
The Court refers to its discussions above under the need to protect primary consideration.
(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the Court in, or in proceedings for, the order; any other relevant matter
A provisional ADVO for the mother’s protection against the father was made in about early 2021. The mother had declined to facilitate a FaceTime call between the child and the father at about this time by reason of the child having fallen asleep and she had offered to do a make up call. The father began to contact the mother and the maternal grandmother to a significant extent leading the mother to be very concerned and fearful that the father was going to attend her residence. There were communications between the mother and police officers from two different police stations. The Court accepts the mother’s evidence in this context and does not accept that she was conducting “police shopping”. In early 2021 the application for a final ADVO was withdrawn and dismissed, the police having considered a letter from the father’s solicitor to the police.
(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
The Court is of the view that the ICL’s proposed Minute of Order, as discussed above under the meaningful relationship primary consideration in respect to the extent of time to be spent by the child with the father, and the ICL’s proposed Order for the mother to have sole parental responsibility, would be least likely to lead to the institution of further proceedings in relation to the child, as compared to the father’s proposed orders seeking an equal time arrangement between the child and the father and equal shared parental responsibility. In this context, the Court refers to its discussions above and below, including its discussions in relation to equal time and equal shared parental responsibility.
(m) Any other fact or circumstance that the Court thinks is relevant
The father sought an order (Order 9 in his proposed Minute of Final Orders) that within 14 days the parties do all things and sign all documents to ensure that the child is baptised in the Catholic Church. The father had not previously sought such an Order. The mother was cross‑examined by the father in relation to this issue. She stated that she hadn’t thought about whether or not she was opposed to a Catholic Church baptism and that she just did not know. She had stated that she would like the child baptised. She stated that she hadn’t had any discussions with the father about this issue.The Court is not persuaded that it would be in the best interests of the child for the father’s proposed baptism Order to be made and is concerned that if such an Order was made that it may be productive of conflict between the parties to the detriment of the child. The evidence of the Family Report writer was consistent with this view.
Parental responsibility
The Court refers to its discussions above under the need to protect primary consideration.
The presumption of equal shared parental responsibility does not apply by reason of the Court’s findings as to family violence discussed above under the need to protect primary consideration.
The Court will now discuss whether it will be in the child’s best interests to make an Order for equal shared parental responsibility.
The parties have not communicated with each other face to face or by phone since separation in Easter 2018. When they do communicate it is via text message and usually the father will seek to communicate on parenting matters through the maternal grandmother.
The father’s communications with the mother post-separation, in particular his text message communications with her, viewed holistically, have been often critical of the mother, argumentative, abrupt, and occasionally abusive (for example, calling the mother a “liar” and a “cunt”, and see the parties’ text message exchanges on 14 January 2021 set out at paragraph 389 of the father’s affidavit). It is not without relevance in this context that the father himself refers to the maternal grandmother saying to him in April 2022 that, “the point is you fight with (the mother) on everything.” As a result of such communications, the mother has felt significantly apprehensive that the father will abuse her in such communications.
The mother’s concerns in this regard have probably been heightened by her awareness that the father has on certain occasions communicated with staff at GP’s rooms and a health practitioner for the child in an adversarial manner (for example, the father’s communications with the child’s Occupational Therapist Ms Z in about October 2021 had led to Ms Z ceasing to provide services for the child for about four months; see annexures H and I to the mother’s affidavit filed 27 February 2023).
The father remains resentful of the mother for having previously failed to facilitate time between the child and the father, particularly for a significant period in 2019.
The father holds a degree of mistrust in relation to the mother. In oral evidence the father was asked whether he still thinks the mother is a liar and a manipulator to which he replied, “(In) some things I do.” Again, the father, who is in arrears of child support to the extent of about $5,000, and who presently has the financial ability to pay off these arrears because he has a fund of about $10,000 saved in relation to the child, does not trust the mother to spend monies for the child’s benefit.
The father is of the view that the mother has denied him the opportunity to participate fully in parenting the child by denying him the opportunity to provide information relating to his observations and parenting of the child to the child’s health professional treatment providers.
The father, despite the child’s most recent autism diagnosis, remains of the view that the mother has contributed to some of the child’s behavioural difficulties. He had told Dr K, psychologist, on about July 2023, that the child’s delayed development was caused by the mother. He had told Dr K that the mother infantilises the child and this had contributed to his given diagnoses. The mother in her oral evidence stated that she does not think that the father fully accepts the autism diagnosis of Dr K as he had stated that environmental factors, including the mother’s parenting of the child, had contributed to the child’s autism.
The father was critical of the mother as a parent and, for example, suggested in his oral evidence that she was neglectful of the child by sitting on her iPad, and he was of the view that the mother had unreasonably permitted the child to use a dummy for an extended period. He had told Dr K that the mother was a lazy parent.
The father, in oral evidence, was reluctant to give any credit to the mother’s parenting in circumstances where he had stated that the child had made significant improvements since starting school; he had stated that such improvements were solely related to the school’s efforts. When asked in cross-examination whether he felt any gratitude towards the mother for having applied to the NDIS for funding for the child, the father stated that he would have been happy to pay.
The Court does not accept that the father, with the benefit of hindsight, is regretful that he had potentially compromised the child’s past autism treatment by making adverse representations to the NDIS relating to the merits of the mother’s application on behalf of the child to the NDIS.
Again, the mother, by reason of the father’s manner of communicating with her in the past, has felt significantly apprehensive that the father will abuse her in parenting communications. She has chosen for some considerable period of time now that the father only communicate with her through text messages, and she has enlisted the assistance of the maternal grandmother to effectively communicate with the father on her behalf.
There is a significant prospect that by reason of the child’s autism, noting the child is only presently six years of age, major decisions will need to be made in the future relating to, in particular, his health professional treatment and schooling.
The Court has little confidence that the parties will be able to reach agreement on major decisions to be made for the child in a timely fashion without conflict.
The evidence of the Family Report writer is consistent with the above views.
It will be in the best interests of the child that the mother have sole parental responsibility for him. However, before making a major long term decision for the child she should first seek the father’s views as to her proposed decision and consider those views.
Equal time
The Court refers to its discussions above under the need to protect primary consideration.
It will not be in the best interests of the child that the parties parent the child in an equal time arrangement.
The Court assesses that the parties’ ability to co-parent the child in an equal time arrangement without significant conflict is unsatisfactory; the nature and extent of their co-parenting relationship is quite insufficient to enable an equal time arrangement to operate successfully.
The parties have not communicated face-to-face or spoken with each other over the telephone since separation in Easter 2018. The father agreed in his oral evidence that there needed to be communication with the mother in relation to the child to ensure consistency and stability across both parties’ households.
The father is mistrustful and critical of the mother as a parent. In oral evidence he stated that there was no parental discipline in the mother’s household, it being “a free for all”.
The father is reluctant to give credit to the mother for her parenting efforts, including in relation to the child’s improved speaking skills, in seeking NDIS benefits for the child, and he is reluctant to give credit to her for any of the child’s more recent progress and development. The father is of the view that the mother has contributed to aspects of the child’s behavioural difficulties. He has a poor opinion of the mother and views her as, inter alia, a lazy parent.
The mother, for her part, is apprehensive of communicating with the father for fear of being abused and criticized, and, again, has chosen for some time now to only communicate with him through text messages. She has organized for her mother to conduct FaceTime calls and attend changeovers.
There is a significant risk that the parties will be unable to co-parent the child in an equal time arrangement without conflict to the detriment of the child. In this context, there are behavioural risks posed to this autistic child in being exposed to parental conflict.
Taking into account the above matters, the Court has no confidence that the parties’ attendance upon a parenting course(s) relating to the improvement of communication between parents seeking to co-parent a child, together with use of parenting communication apps, will lead to these parties being able to co-operatively co-parent the child in an equal time arrangement successfully.
The evidence of the Family Report writer is consistent with the above views.
SUMMARY
Evaluating the above discussed relevant considerations under s 60CC of the Act, it will be in the best interests of the child to make the following final parenting orders:
Parental responsibility
1.That the Mother have sole parental responsibility for the child, X, born in 2017 (“the child”) but when making a decision about major long term issues, the following shall apply:
(a)The Mother must, at first instance, inform and provide notice to the Father in writing via text message of the decision proposed to be made;
(b)The Mother must, at first instance, and in the notice pursuant to Order 1(a) above, invite written comments from the Father;
(c)The Mother must consider such comments before making her decision; and
(d)The Mother must inform the Father in writing via text message of the decision once it is made.
Live with
2.That the child live with the Mother.
Spend time
3.That unless otherwise agreed in writing, the child shall spend time with the Father as follows:
(a)From the date of these orders until a period of six months after the child commences school in 2024, each alternate Friday from 4.00 pm until 5.00 pm on Sunday.
(b)After a period of six months from the date that the child commences school, each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday.
School holidays
4.The father shall spend time with the child during the Term 1 and 2 2024 school holiday periods for 2 nights of the school holiday period.
5.For the purposes of order 4, the 2 nights are to commence in the first week of such holidays on Sunday from 4.00 pm until 4.00 pm on Tuesday.
6.The Father’s time shall increase by 1 night during the Term 3 2024 school holiday period, from Sunday 4.00 pm until 4.00 pm on Wednesday, and shall increase by one night each consecutive school holiday period until the child spends 7 nights with the Father.
7.Upon the Father’s time increasing to 7 nights with the child, the Father shall spend time with the child during the Term 1, 2, and 3 school holidays in the first half in odd numbered years and the second half in even numbered years.
8.Upon the Father’s time increasing to 7 nights with the child, the Father shall spend time with the child during the Term 4 school holiday period for the first week and each alternate week thereafter in odd numbered years and in the second week and each alternate week thereafter in even numbered years.
9.Where time does not commence or conclude at school, at the commencement of the Father’s time the Father is to pick up the child from the Mother’s residence and, at the conclusion of the Father’s time, the Mother or her representative is to pick up the child from the Father’s residence.
10.Notwithstanding any other order, the child shall spend time with the Mother and Father on the following special occasions:
Easter
(a)The child shall spend time with the Mother:
(i)In even years from 4.00 pm Maundy Thursday until 5.00 pm Easter Saturday;
(ii)In odd years from 5.00 pm Easter Saturday until 4.00 pm Easter Monday.
(b)The child shall spend time with the Father:
(i)In odd years from 4.00 pm Maundy Thursday until 5.00 pm Easter Saturday;
(ii)In even years from 5.00 pm Easter Saturday until 4pm Easter Monday.
Christmas Day
11.In each year that ends in an odd number the child is to spend:
(a)From 12 noon on Christmas Eve until 12 noon Christmas Day with the Father; and
(b)From 12 noon on Christmas Day until 12 noon on Boxing Day with the Mother.
12.In each year that ends in an even number the child is to spend:
(a)From 12 noon on Christmas Eve until 12 noon on Christmas Day with the Mother; and
(b)From 12 noon on Christmas Day until 12 noon on Boxing Day with the Father.
Child’s birthday
13.Commencing in 2024, the Mother shall spend time with the child:
(a)In odd years from 1.00 pm or after school on the child’s birthday until 9.00 am or the commencement of school the following day;
(b)In even years from 1.00 pm or after school on the child’s birthday until 9.00 am or the commencement of school the following day.
14.Commencing in 2024, the Father shall spend time with the child:
(a)In even years from 1.00 pm or after school on the child’s birthday until 9.00 am or the commencement of school the following day;
(b)In odd years from 1.00 pm or after school the child’s birthday until 9.00 am or the commencement of school the following day.
Mother’s Day and Father’s Day
15.If Mother’s Day falls on a weekend when the Mother does not otherwise have care of the child, the Mother will have care of the child from 4.00 pm the Friday prior to Mother’s Day until 9.00 am or the commencement of school the following Monday, notwithstanding any other order.
16.If Father’s Day falls on a weekend when the Father does not otherwise have care of the child, the Father will have care of the child from 4.00 pm the Friday prior to Father’s Day until 9.00 am or the commencement of school the following Monday, notwithstanding any other order.
School events, child’s activities, and communication
17.The parents will both be entitled to attend all events involving the child including:
(a)Sporting fixtures;
(b)Extra-curricular activities that allow for parental attendance;
(c)School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, carnivals, parent and teacher interviews, canteen duties and social functions,
and the parent who has the child in their care on the day of such events will be responsible for their day-to-day care at such event and the child’s transportation to and from that event.
18.The Father is to have FaceTime contact with the child each Tuesday and Thursday at 6.00 pm and each parent shall ensure that their phones are charged and have requisite credit to facilitate such communication.
19.The Mother and Father shall immediately notify the other parent of any illness, medical emergency, serious medical problem, hospitalisation or accident in relation to the child when the child is in their care and together with any such notice, the parent is to provide the name of the hospital, treating medical practitioner and/or medical facility that provided medical treatment.
20.The parties shall ensure that the other party is kept informed of:
(a)Any medical problems or illnesses suffered by the child while in their care;
(b)Any medication that has been prescribed for the child;
(c)Any social, school or religious function which the child are to attend; and
(d)Any other matter relevant to the child’s welfare.
21.For the purposes of communicating information between the parties the Mother and Father shall:
(a)Communicate by telephone matters of an urgent nature; and
(b)Communicate in relation to all other matters regarding the welfare of the child, with the utilisation of a parenting app, MyMob, and for this purpose, the parties shall within 7 days from the date of these Orders, download such parenting application onto their phones.
22.Each party shall advise the other party of their current address, contact telephone numbers (including both landline and mobile phone numbers if applicable) and email address, and advise the other party of any changes to these details within 7 days of such change occurring.
Restraints
23.The parties are restrained from:
(a)Discussing these family law proceedings with the child;
(b)Making critical or derogatory remarks in relation to the other party in the presence or hearing of the child, or permitting any third party to do so, and
(c)Physically disciplining the child.
24.The Father is restrained from communicating with any of the child’s therapists or professionals with disrespect or aggression, or in a harassing manner.
Courses
25.That the Father forthwith engage with C Organisation and undertake such courses which will enable him to gain an understanding of the child’s condition in ways that he can assist the child when the child is spending time with him.
Authorities
26.These Orders are authority for any medical practitioner, dentist, counsellor or other health professional who treats the child to provide information to the other parent upon request by the other parent, to the extent permitted by law.
27.Each parent is permitted to liaise directly with the child’s school, sporting bodies and/or extra-curricular organisation to obtain any necessary information about the child’s progress.
28.These Orders are authority for the school, sporting bodies and/or other organisations to release such information as requested by the other parent to the extent permitted by law.
29.The parent that caused the child to be enrolled in such activities or schooling must provide the other parent the particulars of the enrolment within 24 hours of enrolment.
30.These Orders are authority for the child’s school to provide both parents with copies of the child’s school reports, newsletters, photograph order forms and invitations to attend any activities which parents are invited to attend and for both parents to be named on all school and extracurricular records as emergency contacts.
I certify that the preceding one hundred and sixty-one (161) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 18 October 2023
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