Kennedy and Kennedy
[2009] FMCAfam 1013
•2 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KENNEDY & KENNEDY | [2009] FMCAfam 1013 |
| FAMILY LAW – Parenting – whether sole or equal shared parental responsibility – allegations of family violence – 2 year old with developmental needs – child’s speech and language skills – cultural and religious issues – when child spending overnight time with his father should be introduced. |
| Family law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA |
| Applicant: | MS KENNEDY |
| Respondent: | MR KENNEDY |
| File Number: | SYC 3281 of 2008 |
| Judgment of: | Orchiston FM |
| Hearing dates: | 11, 12 June & 14, 15 September 2009 |
| Date of Last Submission: | 15 September 2009 |
| Delivered at: | Sydney |
| Delivered on: | 2 October 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr D. Dura |
| Solicitors for the Applicant: | Doolan Wagner & Callaghan |
| Counsel for the Respondent: | Mr A. Givney |
| Solicitors for the Respondent: | Constantine G Pavlis & Co |
ORDERS
All previous parenting Orders are discharged.
The parents shall have equal shared parental responsibility for the child, [X] (the child) born in 2007.
The parents shall have sole responsibility for making decisions relating to the day to day care, welfare and development of the child during such periods as the child is in their respective care.
The child live with the mother.
That the husband spend time with the child as follows:
During pre-school/school terms
Until the child commences school
5.1From the date of these Orders until the child attains the age of 2 years 6 months ([date omitted] 2009):
5.1.1 Each Tuesday from 6pm to 8pm; and
5.1.2 Each Saturday from 9am to 5pm.
5.2Upon the child attaining the age of 2 years 6 months and until the child attains the age of 3 years ([date omitted] 2010):
5.2.1 Each Tuesday from 6pm to 8pm; and
5.2.2 Each Saturday from 9am to 7pm.
5.3Upon the child attaining the age of 3 years and until the child attains the age of 3 years 6 months ([date omitted] 2010):
5.3.1Each Tuesday from after pre-school or otherwise from 6pm to 8pm;
5.3.2Each alternate Thursday from after pre-school or otherwise from 6pm to 8pm; and
5.3.3Each alternate weekend from 9am Saturday to 10am Sunday.
5.4Upon the child attaining the age of 3 years 6 months and until the child attains the age of 4 years ([date omitted] 2011):
5.4.1Each Tuesday from after pre-school or otherwise from 6pm to 8pm;
5.4.2Each alternate Thursday from after pre-school or otherwise from 6pm to 8pm; and
5.4.3Each alternate weekend from 9am Saturday to 6pm Sunday.
5.5Upon the child attaining the age of 4 years and until the child commences school:
5.5.1Each Tuesday from after pre-school or otherwise from 6pm to 8pm; and
5.5.2Each alternate weekend from after pre-school or otherwise from 6pm Friday to 6pm Sunday.
Upon the child commencing school
5.6 Upon the child attending school:
5.6.1Each Tuesday from after school or otherwise from 6pm to 8pm; and
5.6.2Each alternate weekend from after school on Friday, or 3pm in the event of a non-school day, to before school on Monday, or 9am in the event of a non-school day.
During school holidays
Until the child commences school
5.7Upon the child attaining the age of 3 years 6 months and until the child commences school:
5.7.1For a period of four (4) consecutive nights during the Christmas school holidays to commence at 9am on 3 January and to conclude at 6pm on 7 January; and
5.7.2From 6pm Easter Thursday to 6pm Easter Saturday in years ending in an odd year and from 6pm Easter Saturday to 6pm Easter Monday in years ending in an even year;
5.7.3For a period of (2) consecutive nights during of second half of the Term 1 school holidays from 9am on the second Monday to 6pm on the following Wednesday;
5.7.4For a period of four (4) consecutive nights during the first half of Terms 2 and 3 of the school holidays from 9am on the first Monday to 6pm on the following Friday.
Upon the child commencing school
5.8.1For the first half of the school holidays at the end of Terms 1, 2 and 3 in even years and the second half in odd years;
5.8.2In the child’s first year at school, for two (2) non-consecutive periods of nine (9) days during the Christmas school holidays with such periods to commence at 9am on the first day and conclude at 6pm on the last day of each period with the father to notify the mother by e-mail of the days this time is to occur within 21 days prior to the end of Term 4; and in each year thereafter for the first half of the Christmas school holidays at the end of Term 4 in even years and the second half in odd years;
5.8.3From 2pm on 4 January to 2pm on 7 January in odd years.
Other times
5.9On the child’s birthday as agreed or failing agreement from 6pm to 8pm if such birthday falls on a week day and from 10am to 2pm if such birthday does not fall on a weekday;
5.10Each Father’s Day from 9am to 6pm unless otherwise agreed;
5.11Upon the child commencing school, from 9am Good Friday to 9pm Easter Saturday each year unless otherwise agreed;
5.12At such other times as the parties may agree in writing.
The time to be spent by the child with the father pursuant to Order 5 herein to be suspended during which times the child shall live with the mother:
6.1On Mother’s Day each year from 9am to 6pm;
6.2On the child’s birthday as agreed between the parties and failing agreement from 6pm to 8pm if such birthday falls on a weekday and from 10am to 2pm if such birthday does not fall on a weekday.
6.3From 5pm Christmas Eve to 6pm Christmas Day in each year.
Until the child commences school, in the event that the father is unable to spend time with the child in accordance with these Orders due to his work commitments:
7.1The father shall provide the mother with written notice to her nominated e-mail address of his inability to spend time with the child not later than 48 hours prior to the commencement of the period;
7.2[X] shall spend such time with the paternal grandparents, but up to a maximum of three times in any calendar year;
7.3Unless otherwise agreed, a paternal grandparent shall collect the child from the mother at [C] Shopping Centre, or directly from pre-school, at the commencement of each period of time that the paternal grandparents are to spend with the child and shall return the child to the mother at the [C] Shopping Centre at the conclusion of each period of time;
7.4 The mother shall make the child available at such times to either the paternal grandmother or the paternal grandfather at [C] Shopping Centre, where relevant.
Changeovers
For the purposes of the child spending time with the father:
8.1The father shall collect the child from the mother at [C] Shopping Centre, or directly from pre-school or school, at the commencement of each period of time he is to spend with the child and the father, shall return the child to the mother at the [C] Shopping Centre, or directly to pre-school or school, at the conclusion of each period;
8.2Unless otherwise agreed, in the event that either the mother or the father is not reasonably available to collect the child from or to return the child to [C] Shopping Centre or from pre-school or school at such times, an adult member of either of the parents’ family shall be permitted to collect and return the child at such times on behalf of the mother or the father;
8.3 The mother or the father shall make the child available at [C] Shopping Centre, where relevant, to that adult member of the other parent’s family at such times.
Unless otherwise agreed, at least seven (7) days prior to the child spending overnight holiday time away from a parent’s usual place of residence, that parent to provide to the other parent by e-mail a telephone number and address for such holiday periods.
Each parent shall keep the other parent informed at all times of the names, telephone number/s and address of all medical practitioners attended upon by the child whilst the child is in their respective care and shall notify the other as soon as practicable, and not later than
24 hours, after the child has attended upon a medical practitioner.
In the event that the child is prescribed medication and/or any other form of treatment by a medical practitioner each parent shall inform the other parent of the medication and/or treatment prescribed as soon as practicable thereafter, but not later than 24 hours after the medication and/or other treatment has been prescribed for the child
Each parent shall notify the other parent as soon as is reasonably practicable of any emergency, accident, serious illness, or admission to hospital of the child, when the child is living with or spending time with that parent.
Each parent shall provide all necessary authorities and permissions to enable the other parent to speak with and obtain information and/or reports regarding the child from any medical or health professional attended upon by the child.
The mother shall provide the father with an update copy of the child’s Blue Book within 14 days of any change to the Blue Book.
Each parent shall each ensure that in the event that either of them resides in premises with a swimming pool that the swimming pool is improved with a Council approved fence.
Each parent shall advise the other and keep the other informed by email as to their respective, residential addresses, land line and mobile telephone numbers, e-mail addresses, and any other information necessary for the child to communicate with the other parent and shall notify the other parent of any changes thereto within 48 hours of the date of any change.
Each parent shall facilitate reasonable communication between the child and the other parent at all reasonable times by telephone or other electronic means.
Both parents are at liberty to attend:
18.1Any pre-school, school, sporting or other extracurricular events and activities to which parents are usually invited; and
18.2Any medical or health related appointments for the child.
The mother shall do all acts and things and give all authorities necessary for the father to arrange direct with the child’s school for the delivery to him of copies of all school notices, newsletters, reports and photographs.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
All outstanding applications be dismissed and the matter removed from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Kennedy & Kennedy is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 3281 of 2008
| MS KENNEDY |
Applicant
And
| MR KENNEDY |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter relates to the child, [X] born in 2007 who is currently 2 years and 2 months old as at the last day of hearing. His parents separated on 21 May 2008 when he was 10 months old. Since then, he has lived primarily with his mother at the maternal grandparent’s home and spends time with his father in accordance with interim parenting orders.
Background
The applicant mother, Ms Kennedy, is 31 years old. She was born in Australia of Armenian background and Roman Catholic faith. The respondent father, Mr Kennedy, is 34 years old. He was born in Iran, and is of Orthodox faith. He came to Australia in 1990 and is an Australian citizen.
The parties were married in 2005 and separated on 21 May 2008. Prior to separation, the parents attended joint counselling for some six months with Relationships Australia to assist with marriage difficulties and the father attended individual counselling at about the same time.
Neither parent has re-partnered.
The mother has tertiary qualifications in [omitted] and has been employed part-time 3 days a week [in the Education Industry] from the time [X] was six months old and continuing since separation. She now works for [H]. The mother and [X] have been living with the maternal grandparents at [W] since separation. [X] has his cot in the mother’s bedroom. [X] has been, and continues to be, cared for by his maternal grandmother since the mother went back to work.
The father is currently employed as a [Administrator]. He originally remained living in the former matrimonial home at [B] until it was sold when he moved to a rented unit at [M] to be closer to his work. He then moved to a two bedroom unit at [R] to be closer to [X] so that [X] would not get over-tired from the long return car journeys in the short period of time that [X] was spending with him. [X] has his own room at his father’s place, with the familiar surroundings of all his old toys and furniture from the former matrimonial home. The father has had the on-going support of his parents and his brother, Mr M and sister-in-law, Ms S.
On 18 August 2008, Kemp FM made interim parenting Orders for 6 months, including that [X] spend time with his father each Tuesday and Thursday from 6pm to 8pm, and each Saturday from 11.30am to 1.30pm, or otherwise as agreed.
On 12 June 2009, further Interim Orders were made for [X] to spend time with his father until he reaches the age of 2½ years on each Tuesday from 6pm to 8pm, and each Saturday from 9am to 3pm.
The competing proposals and material relied upon
The mother relied upon the following documents:
·Initiating Application filed 5 June 2008
·Affidavit of the mother sworn 8 June 2008 and filed 9 June 2008
·Affidavit of the mother sworn 27 August 2009 and filed 28 August 2009
·
Affidavit of the mother sworn 2 September 2009 and filed
7 September 2009.
The father relied upon the following documents:
·Amended Response filed 8 August 2008
·Affidavit of the father sworn 1 July 2008 and filed 2 July 2008
·Affidavit of the father sworn 10 June 2009 and filed 10 June 2009
·Affidavit of the father sworn 28 August 2009 and filed 31 August 2009.
The Court also had before it a Family Report from the Family Consultant, Mr Norman Goodsell, dated 4 May 2009. Mr Goodsell was cross-examined by both the parties. It also had before it Reports from Dr G, the child’s paediatrician and Mr N, a consultant developmental psychologist (being Annexures “A” and “B” respectively to the mother’s affidavit of 2/9/09).
In summary, the mother sought the following orders, including that:
·The mother have sole parental responsibility for [X];
·[X] live with the mother;
·[X] spend time with the father each week in accordance with a six phased approach, including :
·time mid-week and Saturdays extended to 6pm before one overnight on alternate weekends is introduced by age 3 (on [date omitted]2010);
·two overnights on alternate weekends by age 4 (on [date omitted]2011); and
·three overnights on alternate weekends when he commences school;
·[X] further spend block holiday time with his father phased in from three overnights from age 4 to half the school holidays when he commences his third year at school; with block time in January each year (to coincide with the father’s family Orthodox celebrations); Father’s day; and Easter;
·Changeovers be effected at Parramatta Police Station
In summary, the father sought the following orders, including that:
·The parents have equal shared parental responsibility for [X];
·[X] live with the mother;
·[X] spend time with the father in accordance with a seven phased approach, including:
·time mid-week and one overnight each weekend from 15/10/09 (aged 2years and 3 months);
·two overnights on alternate weekends from 2/2/2010 (aged 2 years 7 months);
·as above, with a further four overnights from 5-9 January (aged 3 years 1 month);
·three overnights on alternate weekends from 2/2/2011 (aged 3 years 7 months);
·five overnights a fortnight from 30/1/2012 when [X] starts school;
·[X] further spend block time with his father for four overnights from 5-9 January each year from 1/8/2010, increasing to eight overnights for this same period from 2-10/1/2012 until he commences school; block holiday time from 2/2/2011; thereafter, school holiday time, (but suspended from Christmas Eve to Boxing Day each year); 5-7 January each year, Father’s day, and Easter;
·Changeovers be effected at [C] Shopping Centre.
Relevant legal principles
Part VII of the Family Law Act1975 (the Act), following the Family Law Amendment (Shared Parental Responsibility) Act 2006, sets out the relevant law in Parenting cases. Section 61DA provides for a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for their welfare. The presumption relates to parental responsibility about major long term issues, not to the time that the child spends with each parent. Major long term issues are defined in s.4 of the Act as education, religious and cultural, health, name, and significant changes in living arrangements.
Section 61DA(2) provides that the presumption of equal shared parental responsibility does not apply:
if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family; (or)
(b) family violence.
Section 61DA(4) further provides that the presumption of equal shared parental responsibility 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.
If the Court finds that the presumption of equal shared parental responsibility applies, then the Court must consider whether the child spending equal time with each parent would be in his best interests: s.65DAA(1)(a), and whether it is reasonably practicable to do so: s.65DAA(1)(b). If so, the Court must consider making an order for equal time: s.65DAA(1)(c).
If the Court does not make an order for equal time, it must consider whether the child spending substantial and significant time with each parent would be in the child’s best interests: s.65DAA(2)(c), and whether it is reasonably practicable: s.65DAA(2)(d), and then consider an order for substantial and significant time: s.65DAA(2)(e).
“Substantial and significant time” is defined in s.65DAA(3) as follows:
For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Section 65DAA(4) further provides that:
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
The criteria that the Court must consider in determining whether it is reasonably practicable for the child to spend substantial and significant time with each parent are set out in s.65DAA(5) as follows:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Section 60B(1) of the Act sets out the objects to ensure that the best interests of the child are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
Section 60B(2) sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
Section 60CA provides that 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.
In determining what is in the best interests of the child, the Court must first consider the primary considerations set out under s.60CC(2), followed by the additional considerations under s.60CC(3) of Part VII.
Section 60CC(2) provides that:
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The additional considerations set out under s.60CC(3) (a) to (m) are set out in the body of the judgment. In considering both s.60CC(3)(c) and (i), the Court must also take into account s.60CC(4) and s.60CC(4A).
Sub-sections 60CC(4) and (4A) provide that:
s.60CC(4) – Relates to s.60CC(3)(c) and (i).
Extent to which each parent has fulfilled/failed to fulfil responsibilities as a parent.
(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(4A) If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Section 65D provides that, subject to the presumption of equal shared parental responsibility, that the court may make such parenting order as it thinks proper.
The Issues and preliminary findings
The key issues for determination in this case are:
·whether the mother should have sole parental responsibility or whether the parents should have equal shared parental responsibility for [X]; and
·when [X] should start spending overnight time with his father.
Limitations on Family Report
Mr Goodsell recommended in his Family Report of 4 May 2009 that “given the apparent security for [X] with the current weekly arrangements … any significant changes should be introduced gradually.” On this basis, rather than immediate introduction of [X] spending overnight time with his father, he recommended the following phased implementation:
Phase 1: for a period of 3 months, Saturdays to be extended to a full day (from 9am to 4pm ), with Tuesdays and Thursdays remaining as is (from 6pm to 8pm on each night);
Phase 2: for the next 3 months, Saturday overnight to 4pm Sunday;
Phase 3:thereafter, 2 nights overnight on alternate weekends, at which time, [X] should be fully toilet trained and there will have taken place a further paediatric assessment with recommendations as to his language delay.
He was further of the view that [X] may not be ready for one night overnight mid-week in the alternate week, as sought by the father, until he is older, but that it was in [X]’s interests for some mid week time to be spent with him.
I accept the submission by Mr Givney, counsel for the father, that Mr Goodsell has a most impressive background in parenting matters including that for many years he was the Director of Counselling with the Family Court of Australia until 2000; during that period he was awarded the Chief Justice’s Scholarship to study and report on mediation services and family assessments reports in England; and he has had over 30 years professional counselling experience with adults and children.
I make it clear that the following limitations which I consider must qualify the weight that can be accorded to his Report, are not in any way to be taken as critical of Mr Goodsell, nor of his methodology or conclusions which were drawn from his careful observation and assessment of the parents and [X] at that point in time:
·
The recommendations in his Report were made after interviewing the parents and [X] some 4½ months before the final day of hearing. Mr Goodsell gave evidence some
3 months before this same final day of hearing. His Report and evidence, therefore do not take into account more recent events, such as the extent of the present level of conflict and communication between the parents, and [X]’s present level of maturity;
·Secondly, the recommendations were made prior to the Court extending the time [X] spent with his father on Saturdays to a block of 6 hours, (see Interim Orders of 12/6/09). Mr Goodsell did not therefore have the opportunity of re-interviewing the parents and observing [X] after these interim orders came into effect. Accordingly, he was not able to comment on the differing views of the parents as to how [X] is coping with this extension of time, nor to present any independent view on the matter.
·Thirdly, at the time of writing his Report, Mr Goodsell was aware that [X] had seen Dr G and that further investigation was foreshadowed, in particular, in regard to the parents’ concern over [X]’s delayed speech and language skills. He did not however have the benefit at that time of the later Reports from Dr G and Mr N when interviewing the parents and [X]. He was not recalled by the parties for further cross-examination following the furnishing of these Reports.
The recommendations in his Report must therefore be considered in the light of this further evidence from Dr G and Mr N concerning [X]’s developmental levels and the extent to which [X] is presently coping with the extension to block time spent with his father on Saturdays and the effect of this on his ability to cope with a further extension to overnight time.
These issues will be dealt with below within the context of what is in [X]’s best interests as ascertained by a consideration of the objects and principles set out in s.60B(1) and s.60B(2) of the Act, respectively, and within the framework of the primary considerations under s.60CC(2), and then the additional considerations under s.60CC(3), and taking into account how each parent has fulfilled or failed in their parental responsibilities to date, as required under s.60CC(4) and s.60CC(4A) of the Act.
The Primary Considerations: s.60CC(2)l
(a) The benefit to the child of having a meaningful relationship with both parents
Both parents dearly love [X], who plays an important role in both their lives.
The mother has been [X]’s primary carer since birth. On all accounts [X] has built up a warm and close attachment to her. The mother has established a very careful routine for [X] to ensure that he has a stable and predictable environment in which to grow and develop. I am fully satisfied that [X] presently enjoys the benefit of a meaningful relationship with his mother and that he will continue to share the close and loving bond with her which she has sought to develop with him.
Prior to separation, the father had a lesser, although still some involvement, in attending to [X]’s daily needs, given his work commitments. Since separation, he did not see [X] for some three months which was clearly not his wish but was in the context of apprehended violence order (AVO) proceedings and his trying to reach agreement with the mother on arrangements for him to spend time with [X]. Since then, [X] initially spent three shorter periods each week with his father, to assist in building up his attachment to him. Since June this year, he now spends two periods a week, but with the Saturday time now extended to six hours to allow [X] to have his father more involved in his daily routine such as feeding him and putting him down for naps.
At changeover, [X] has generally gone willingly to first a member of the father’s family, (during the currency of the interim AVO), and since to his father. The mother agrees that [X] smiles at his father and puts his arms out towards him on such occasions. This is all the more significant where changeovers have taken place against the backdrop of a high level of conflict between the parents, often involving their extended families at their respective residences.
Again in the initial stages of [X] spending time with his father, the father’s extended family appear to have assisted him a great deal with [X]’s care. Now with a six hour block on Saturdays, the father has been able to become much more involved in [X]’s routine and daily life, thus having the opportunity to build up a close and loving bond and strong level of attachment with him. I accept that [X] now enjoys the benefit of a meaningful relationship with his father. The introduction of overnight stays will provide [X] with an increased opportunity to share this already meaningful relationship with his father.
In more recent times, the parents appear to be better able to communicate about [X]’s daily needs and the father now appears to recognise the importance of this to ensure [X]’s optimal care, welfare and development. There are now the positive beginnings of a more mutually co-ordinated approach to parenting by the father and a willingness to exchange vital information about [X]’s care. This is also now reflected at changeovers where the parents have been able to deal directly with each other in the more neutral environment of [C] Shopping Centre.
I accept that the father has demonstrated that he is making progress in “moving on” from the acrimonious conflict which described the parents’ relationship until more recently. I accept that the father was not just giving ‘lip service’ for example to his apology to the mother for any past humiliation she may have suffered on occasion at changeovers, (such as the incident on 17 January 2009 in making her approach and knock on the front door in front of his family members when he was already outside), and that he was willing to learn.
I accept his evidence, in this regard that, at the time, the separation was “quite fresh”; there was a lot of “pain and angst” between them; that he has moved on from that; that he was sorry if he had humiliated the mother; that “we both could have done a lot better” on that occasion; and that since, changeovers had been “more smooth”.
The father has also moved his premises to [R] to be closer to the mother’s to maximise his time with [X] and overcome the fatigue factor he had noticed of [X] having to travel initially from one side of Sydney to the other.
These matters can only benefit [X]’s relationship with his father. I am fully satisfied that there is a strong benefit to [X] in his having an increasing role in [X]’s life and his enjoying a meaningful relationship with his father.
Both parents role in [X]’s life and their mutual co-operation, co-ordination and communication, has become all the more significant in light of both parents’ concern over [X]’s delayed speech and the involvement of Dr G, a paediatrician, Mr N, a developmental psychologist, and the involvement of a speech pathologist and occupational therapist. Both the father and mother attended the recent appointments with Dr G and Mr N. It is positive to see that they appear now better equipped to work together for [X]’s benefit to ensure the best outcome for him from this therapeutic intervention.
In regard to [X]’s development, Dr G, in his recent Report of 18 August 2009, expressed the opinion that:
[X] thus continues to be a concern in respect of his overall situation and in particular his speech development. I do not feel that he has a significant number of features of a pervasive disorder and I think this requires further evaluation. I have referred him for a psychological assessment to Mr N who can hopefully further evaluate him in this respect. I have also suggested he have a comprehensive speech review and have suggested he be seen by Ms L. I have asked to see him again once these assessments are complete to further discuss his on-going management.
Mr N saw [X] on 28 August 2009. He reported that [X] “is a very young boy with a significant history of speech and language delay”. In ‘benchmarking’ [X]’s communication, social and play skills using the Autism Diagnostic Observation Schedule, he formed the conclusion that:
There were certainly behaviours characteristic of the broad spectrum of autistic disorders, but also behaviours which were not.
His psychometric assessment of [X] using the Griffiths Mental Development Scales identified the following results:
Developmental age 16-17 months
Locomotor Scale 21 months
Personal/Social Scale 16 months
Hearing and Speech Scale 13 months
Eye and Hand Co-ordination Scale 17-18 months
Performance Scale 15 months.
On this basis, Mr N estimated that [X] was functioning at approximately a 16 to 17 month level, which constituted a “moderate delay” which was most pronounced in his speech and language skills which were functioning at approximately 13 months. I note that [X]’s chronological age as at the date of this assessment was 26 months.
Mr N reached the following conclusion:
[X] is a very young boy whose development is clearly delayed, particularly in relation to speech and language skills. He has the motivation to communicate, however, and this difference between ‘speech’ and ‘communication’ will be vital in his progress through therapeutic intervention. [X] certainly demonstrates behavioural signs from the broad spectrum of autistic disorders, but also communication and social interaction behaviours which are at odds with the autism spectrum. [X]’s play skills are delayed but developing. I would not be prepared at this stage to make a diagnosis of Autistic Disorder, but feel that [X]’s progress needs to be monitored closely once he has begun to receive assistance through therapy and intervention services.
It is thus clear that, from the above Reports, the precise diagnosis, treatment plan, and what therapeutic intervention will best meet [X]’s developmental needs are yet to be defined and determined. The benefit to [X] in having both parents actively and positively involved in this continuing assessment process is crucial to his development and to making his relationship with both of them truly meaningful as his special needs are met by them in conjunction with professional advice and assistance.
Taking all these matters into consideration, I am satisfied that, in these circumstances, there is an overwhelming benefit to [X] of his having a meaningful relationship with both his parents
(b) The need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence.
Section 4(1) of the Family Law Act defines family violence as:
conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
The mother deposed to physical and verbal violence during the marriage and threats to kill her if she ever took [X] away from him. She alleged that the father has a controlling, aggressive and intimidating personality and refused to communicate with her over [X]. The mother says that she feared for her safety in these circumstances.
She says that, prior to the parties separating, [X] would become upset and cry during their arguments and she would have to try to soothe and comfort him.
On the incident of 21 May 2008, which led to the mother vacating the former matrimonial home at [B], she claims in her Statement to police, (Annexure “B” to the mother’s affidavit of 8/5/09), that:
There has been a history of Domestic Violence where he intimidates me and threatens me, this happened when I was pregnant and after I had [X]. It has been an on-going thing for the last 2 years … When he gets so heated up and angry he just walks up to me and towers over the top of me and belittles me … When he was standing in front of me he was pushing me with his two fingers into my chest. I was walking back because of the power in his fingers, until I was standing up against the wall. He continued to abuse me and said a lot of things trying to belittle me. He said again, “If you take my son away from me I’ll kill you” … I wish for police to take out an AVO for me as I am worried that if I do leave him and take [X] with me then he will try and hurt me.
The father denied these allegations. He concedes that there were domestic arguments but that they were mutual, but did not involve physical aggression. The father admits, that on one earlier occasion, he made such a threat that he would kill the mother if she took [X] away from him, but that it was made “in jest” and the mother “laughed” at the time, knowing this. I find it difficult to accept his evidence on this matter that such an utterance by him was not intended to have an effect or to be taken seriously. I further accept that the mother did take it most seriously.
A Provisional Apprehended Violence Orders (AVO) was taken out by the police on 21 May 2008, with Interim Orders made by the Local Court on 6 August 2008 in which [X] was joined as a protected person. The AVO application was eventually withdrawn and dismissed on the basis of the father giving undertakings to the mother (Annexure “C” to the mother’s affidavit of 8/6/09).
I accept the mother’s evidence in regard to these allegations as more credible than the father’s, in the circumstances. I am satisfied that he engaged in intimidating and threatening conduct toward the mother during the marriage which caused her reasonably to fear for, or reasonably to be apprehensive about her personal safety, resulted in her vacating the former matrimonial home on 21 May 2008.
I am further satisfied that the mother still has genuine fears in this regard, which are reasonably held, as evidenced by her always having at least one family member attend with her at changeovers. I also accept her evidence as credible that the reason she withheld [X] from seeing his father until the father had signed the undertaking she sought from him, was because she feared he would not return [X] to her. I accept her fears in this regard were reasonably held when considered in the context of the previous conduct of the father. This is not to deny however that I accept that the father was genuinely mistaken that there was only one, not two undertakings, being sought (see below).
I am thus satisfied that there are reasonable grounds to believe that the father engaged in conduct during the marriage which falls within the statutory definition of ‘family violence’ in the Act.
Of particular concern to the mother has been the level of hostility and conflict at changeovers since separation, often involving the father’s extended family. These matters came to a head in an incident on
7 February 2009 in the context of the father returning [X] after his having spent time with him on that day.
The mother’s version of events was that the father demanded that she pick [X] up at his parents’ place; that there being no agreement reached between them, until the father had a permanent place of residence, compliance with the existing Court Orders for changeover to occur at the former matrimonial home, should be maintained; the father had [X] in his car in temperatures over 40 degrees for some 45 minutes; that he was refusing to hand [X] over to her care; and so she called the police.
The father’s version of events was that the mother had refused to pick [X] up at his parents’ house, only a matter of some 12 more minutes drive away, and had insisted on his returning [X] to the former matrimonial home which he had already vacated as it was being sold. When he returned to the former matrimonial home, he says that he was confronted by the maternal grandmother “point[ing] and aim[ing] a camera at my face”, that he felt intimidated, and was concerned that her family would use the situation to have another AVO brought against him. In these circumstances he refused to hand [X] over to the mother; kept the car air-conditioning on all the time; [X] was asleep in the car; he rang the police and suggested that the changeover be effected at the police station but was told to remain there as police were already taking action, which he did; and that [X] was in the car for a much shorter time than the mother suggests.
Upon the police arrival, [X] was handed over to his mother. The police did not deem it necessary to take any further action in regard to the incident.
Having considered all the evidence in relation to the incident on
7 February 2009, I accept that the father felt intimidated with the presence of a camera in visible possession of the maternal grandmother. I also accept that he genuinely feared that he was at risk of evidence being collected against him for a further AVO if he got out of his car. Equally I accept that the mother genuinely feared that [X] would not be handed over to her, and that he would be suffering in a hot car over an extended period. In all the circumstances, however, I do not consider that the safety or well-being of [X], (who I accept was asleep in an air-conditioned car), nor of either parent, was put at risk. Rather, the incident is most concerning in regard to the level to which the parental and familial conflict had escalated in that police assistance was required.
Since these events, and another incident on 4 April 2009 (see below), I accept that there appears to have been some degree of improvement in the level of personal communication between the parents, especially since changeovers have been effected at the more neutral location of [C] Shopping Centre and without any attendance of the father’s family.
The mother raises no allegations that the father has ever used any physical violence or physical chastisement directed at or towards [X].
Taking all these matters into consideration, on the evidence before me, I am not convinced to the level of reasonable satisfaction that there is an unacceptable risk to [X] of physical or psychological harm from the father, nor from his being subjected to or exposed to abuse or family violence from the father, from which [X] needs to be protected.
The mother raises some further concerns about the father’s neglectful parenting of [X], including for example his failure to use the nappy cream provided by her, to ensure that [X] is not exposed to mosquito bites given his allergic reaction to insect bites, and to use the food and other items provided by her when [X] is spending time with him.
The mother also raises the father’s neglect in not taking [X] to the doctor when required. For example on 18 July 2009 the father returned [X] with watery eyes and sneezing all day. [X] developed an ear and eye infection on that occasion. She further claims that he failed to take [X] to the doctor on 25 July 2009 when he vomited, nor did he inform the mother until afterwards; and that he did not respond when [X] was irritable when spending time with him on 28 July 2009, but was diagnosed by the doctor when the mother took him with an allergic reaction.
A further example pointed to by the mother was the father trying to get [X] discharged from hospital when he was admitted for a gastric attack, because the mother claims the father had people staying and wanted to leave.
Whilst not seeking to minimise these matters, some of them reflect some difference between the parents in their approaches to parenting, and at what point medical assistance is best sought. On the evidence before the Court, I am thus not convinced to the level of reasonable satisfaction that there is an unacceptable risk to [X] from his being subjected to or exposed to neglect from the father, from which [X] needs to be protected.
The Additional considerations: s.60CC(3)
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
There is no question that [X] has not been able to express any views on the issues before the Court, given his very young age, level of maturity and development.
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
There is no issue that [X] appears to have developed a good relationship with both his parents despite the background tensions between them. I accept that both parents genuinely love their son and that they are strongly committed parents.
Indeed, the mother conceded in cross-examination that she was sure the father and the paternal grandparents love [X] and told Mr Goodsell that [X] and his father have a good relationship..
To the parents’ credit, Mr Goodsell reports that [X] is “a healthy, happy child, with no known behavioural problems.” To date, [X] does not appear to have suffered from the parents’ conflict to any concerning extent, which is fortunate indeed, given that most of the difficulties have arisen in the context of changeovers.
[X] has been primarily cared for by his mother since birth. There is no issue that the mother and [X] have a close and loving relationship, that [X] is warmly attached to her, and happy and trusting in her care.
I accept that until separation, the father was involved in a lesser role in [X]’s day to day care. I accept his evidence that he assisted the mother mainly on weekends and holidays as he was working full-time during this period (father’s affidavits of 1/7/08 paragraph 50, and of 10/6/09 paragraph 18).
After observing the interaction between [X] and his father,
Mr Goodsell formed the opinion that [X] has “a loving and trusting relationship” with his father. He observed [X] to smile and stretch out his arms to his father, allowing the father to pick him up without any concerns. He further observed that [X] played happily with his father during their time together, and that the father displayed “patience and guidance”, with [X] being able to concentrate on the task and respond to his father’s directions. He concluded that [X] has a “trusting relationship with his father and by all reports, attends his time with [the father] without emotional difficulty.”I accept these observations as evidence of the positive relationship that [X] has developed with his father, which is all the more to the father’s credit given that [X] did not spend time with his father for some three months following the separation of the parties.
The father states that he considers both he and the mother are “over-protective” of [X]. The conflict between them, their poor communication until more recently, their mutual lack of trust, and [X]’s delayed speech, have resulted in the parents having difficulty in reaching agreement on certain day to day matters concerning [X]’s daily care. Nonetheless, I am satisfied that none of the examples of conflict raised by the parties, usually in the context of changeovers, reveals any fundamental difference in their approach and attitude to the parenting of [X].
The father now appears to recognise the importance for [X] of
co-operation between the parents on his basic needs and routine. I accept that he understands that any inflexible view does not necessarily assist [X]’s care, welfare and development. Mr Goodsell reports that the father stated that he would comply with the mother’s requests about the child’s sleeping arrangements, when he stayed overnight. Again, I accept that, in this regard, the father did not appear to be giving mere ‘lip service’ to what he anticipated the Court might want to hear.The parents each have close relationships with their respective families. There is no affidavit evidence from any of these family members, nor were any of them interviewed by Mr Goodsell. There appears to be no issue, however, and I accept that [X] has a supportive and caring relationship with members of both sides of his extended families.
The mother and [X] reside with the maternal grandparents. The maternal grandmother, in particular, has played a significant role as [X]’s carer since the mother went back to work prior to the parties’ separation. [X] appears to have had no anxiety or difficulties in adjusting to her care.
The father’s evidence, which was unchallenged, is that his mother is involved in [X]’s care when he is spending time with him and that she has “formed a close bond” and “a close and loving relationship” with [X], where [X] enjoys playing various games with her. When [X] sees the father’s extended family, including the paternal grandparents, his brother Mr M, his sister-in-law Ms S and their three children, the father reports that [X] is “extremely happy and seems to enjoy their company”. When they walk in the door, he says that “[X]’s face lights up with a smile and he laughs and runs around, giving them hugs and kisses.” He further says that all his family members are available whenever required to assist him in caring for [X]. I accept this evidence that the father’s family have been significant and caring persons in [X]’s life, with whom he has developed a close and supportive relationship.
(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
The earlier post-separation period was fraught with conflict between the parents. This was particularly evidenced by the father not seeing [X] for a period of three months from 21 May 2008, (the date of separation), until the matter came before the Court on 23 August 2008, and issues over the father providing an undertaking to the mother concerning pick up and drop off times. The mother says, however, that she was the one who initiated and proposed that the father spend time with [X] in that three month period, on the basis of her request that he give this “simple undertaking.”
Thereafter, their conflict and poor communication was largely evidenced at the point of changeovers (see mother’s affidavit of 8/5/09 paragraphs 67 -99; and 110-253). The conflict was compounded with the existence of an interim AVO taken out against the father and the necessary involvement of family members on both sides which gave rise to allegations of suspicion, intimidation, and conspiracy to put the father in breach of the interim AVO. Even after the interim AVO was no longer in place, there was still a lack of trust and poor communication between the parties, with the father still concerned that he would become the subject of another AVO against him.
The tension revolved around matters which included the extent to which the parties could agree and adhere to informal arrangements; when strict compliance with the interim AVO should be maintained; the mother wanting assurance that the father was visibly present when dropping [X] off to spend time with him; the extent to which other family members should be present and play an active or supportive role; alleged or threatened mobile phone recordings of the mother by Ms S; the maternal grandmother having a camera visibly present; the contents of [X]’s bag, packed by the mother, being returned effectively untouched on every occasion; and some lack of co-ordination over [X]’s milk, food and sleep requirements.
Apart from the incident on 7/2/09, there were other incidents at changeover which escalated the conflict between the parents, including on 4 April 2008, when the father sought to pick [X] up early at 10am instead of 11.30am, due to his work commitments. The mother refused and the father had to come back at 11.30 in strict compliance with the interim Orders. There was a further occasion where the father allegedly “humiliated” the mother by making her knock on his front door, apparently in strict compliance with the interim Orders, before he would hand over [X], notwithstanding he was already outside with [X].
Mr Givney submits that the incidents of 7/2/09 and 4/4/09 clearly indicate the mother’s lack of respect of the father and lack of respect of [X]’s relationship with him. I am satisfied however that they reflect the high level of tension and distrust between both the parents at that point in time and the poor level of communication between them which often resulted in their reverting to strict compliance with the interim Orders where no agreement could be reached between them.
There was also tension between the parties concerning the provision of undertakings each sought from the other, including that the father sought from the mother that he not be deemed to be in breach of the interim AVO if [X] spent time with him; the mother’s proposed form of such undertaking signed by her which the father found offensive; the father finally agreeing to the mother’s proposed form so that he could see [X] on his first birthday on [date omitted] 2008; but the mother refusing this on the basis that the father had not signed the undertaking sought by her confirming pick up and return days and times and drop off locations. It is concerning that throughout this period, the father did not see [X] until late August after the matter had come before the Court. It is further indicative of the lack of trust between the parents at this time and the mother’s belief, which I accept was genuinely held at the time, that the father would not return [X] to her without his giving the undertaking she sought.
I accept however, that the parties were to some extent at cross-purposes in this regard. I accept that the father mistakenly, but understandably so in the circumstances, thought that there was only the one undertaking involved which he had sought from the mother and which he had counter-signed. This was most unfortunate.
There was further tension between the parties from what the father contends was the precipitous filing of the mother’s Initiating Application and supporting affidavit in these proceedings on 5 June 2008, without giving the father time to respond to her solicitor’s letter of 30 May 2008 to see if any agreement could have been reached beforehand; the mother’s failure to notify the father of the filing of her documents, with the father only becoming aware of them and the Court first return date of 8 August 2008 when he himself sought to file initiating process on 23 June 2008 and was told that the mother had already done so; the cost to the father of an agent to attempt unsuccessfully to file his initiating documents; and in circumstances where the father had been attempting to negotiate with the mother to spend time with [X]. I accept that the father was entitled to be concerned about these matters for which the mother could give no explanation other than there were attempts being made to serve the father with this process and she thought that he had been served.
Mr Givney submits that the result was effectively “to stymie” the father from bringing an urgent application to try to see [X] while the mother was denying contact and is a further example of the mother not willingly promoting [X]’s relationship with his father.
Mr Dura, counsel for the mother, concedes that the father was not advised of the filing of the mother’s Initiating Application until 16/6/08, but submits that the Court not draw any adverse finding against the mother in this regard. He submits that Proteus investigations sought on numerous occasions to serve the mother’s initiating process on the father. He points to Exhibit 6 which proves that service was attempted on the father at the former matrimonial home on 14, 17, 18, 21, 27 June and 4 July 2008; that notes were left at the father’s property requesting that he contact the server, with contact details provided; but with no response. However the covering letter from Proteus informing the mother’s solicitors of the above unsuccessful attempts is dated 6 August 2008 (see Exhibit 6), quite some time later. He submits that the mother was under the impression that the father had been served (and see Annexure “S” to the father’s affidavit 1/7/08).
I accept that this may have been the case as far as the mother personally was concerned, but clearly the existence of an affidavit of service could have been followed up and been filed in court by her solicitors to make sure of this. It is also the case that the father’s solicitors could have been easily notified of the mother’s filing of process in the various correspondence that passed between the respective solicitors at the time. I thus accept that the father was entitled to be angered by the indirect way in which he found out about the mother having initiated court proceedings against him. Nonetheless, I do not consider that any adverse finding should be made against the mother personally in this regard. I accept that these matters were largely in the hands of her solicitors, that she was not dealing or speaking directly with the father at that time, and that from her evidence, I accept that she genuinely believed that the father had been served.
Again this situation indicates the unfortunate extent of the hostility and conflict between the parties where both sides wished to initiate court process against the other, accompanied by some level of breakdown in communication between their respective legal representatives over this issue.
The important thing, however, was that through all this conflict there is no evidence that [X] was aware of or suffered any harm, whether physical or psychological. At most, the mother reports that, on one occasion, [X] was “visibly upset and crying and his crying could be heard from inside the house” when she picked him up on 18 September 2008; and that he continued to refuse to separate from the mother on
27 September 2008 and was “whinging and pushed [Ms S] away with his hand” and started to cry, but that on that occasion she told Ms S that [X] had not been well and was teething.I cannot say however that the parents sought to shield [X] from their conflict at changeovers, rather that fortunately, he does not appear to have been adversely affected by it. Certainly in the incident in February 2009 when the police were required to intervene, it appears that [X] was asleep in the father’s car. Certainly there is no evidence to say that he suffered harm in any way from the incident.
I accept that these earlier difficulties with the father not seeing [X], and then the conflicts with changeovers, reflect some level at which both parents were not sufficiently facilitating and encouraging [X]’s relationship with the other in the period following upon their separation.
I consider, however, that throughout this difficult period with changeovers, the mother sought to communicate important information to the father about [X]’s needs, care and welfare. I am not satisfied that the father reciprocated as readily in this regard, leaving the mother concerned and anxious about [X]’s well-being, which better communication by him could have alleviated. Indeed, the mother attempted to institute a communication book for the parties to record matters relevant to [X]’s care, dietary progress (and other needs (see mother’s affidavit of 8/5/09 paragraphs 110-137; and Annexure “G” thereto). I accept that the existence of the interim AVO made it more difficult for the father to co-operate, given the advice that he himself not write in the communication book, and his reliance therefore on his sister-in-law, Ms S. Nonetheless, I do not consider that the father took this initiative sufficiently seriously in providing feedback and response, albeit though Ms S.
I further accept that he did not sufficiently recognise until more recently, the importance of adequate verbal, mobile phone or other electronic communication such as email, which the mother also attempted to introduce (see Annexure “K” to the mother’s affidavit of 8/5/09), being maintained between the parents which could have otherwise assisted with the co-ordination of [X]’s care and routine, and given the mother some comfort in these matters.
To overcome the continuous problems at changeovers, the mother also unsuccessfully proposed that they be conducted at [omitted] Contact Centre. I accept that she has always been meticulous in handed [X] over on time and ensuring that he is ready to be picked up in accordance with the Court Orders so that [X] could have the full benefit of the time with his father. The father concedes as much in his evidence. Since the parties now attend [C] for the changeovers, the previous problems seem to have decreased, except that the father continues to complain that whilst he attends alone, the mother is still accompanied by at least one other family member.
I also accept that, despite differences of opinion, the mother has sought to accommodate the father’s work commitments, or if [X] was sick, so as to provide the father with make-up time. I further accept that she has facilitated and encouraged [X] spending time with his father on special family functions, such as their Easter celebrations, and the father’s cousin’s wedding; and that she has been accommodating of his work travel commitments and make-up time for same.
I am satisfied that the mother has kept the father informed when [X] is sick. For example the mother promptly informed the father when [X] was initially diagnosed with chicken pox but which turned out to be an allergic reaction. Upon the latter correct diagnosis, she then promptly handed [X] over for him to spend time with his father. The mother complains that the father has not been equally responsive in informing her of when [X] is ill or he has taken him to the doctor. I accept, however, that the father has been better communicating on these matters more recently. For example, he provided the mother, on returning [X] to her care, with notes from the doctor and a prescription and medication for [X]’s ear infection.
The mother also agreed that it was beneficial to [X] to have his father present at [omitted] Hospital when [X] suffered an allergic reaction to a mosquito bite and when he had a gastric attack, although she expressed concern in relation to the latter that the father had been insistent on [X] going home when the doctor wanted him to stay overnight, as he had persons at his place.
In summary, the mother remained concerned about the lack of, or poor, communication and co-operation by the father including over what [X] ate, when he had soiled or wet his nappies; what nappy cream the father used; health issues and concerns; when [X] should be bathed; the adequacy of [X]’s clothing in cool weather; when he hurt himself, once with a grazed knee and another time with blood on his clothes and hurt inside his mouth; the father being visibly present at hand-overs (see mother’s affidavit of 8/5/09 paragraphs 233-235); whether attempts were made to record conversations at handover by use of a mobile phone; [X] being returned to her consistently late and she being kept waiting; organising and adhering to agreed arrangements such as make-up time; changes in the pick-up location; contact details for the father’s new employment not being provided to her since March 2009; and issues over council certification of the maternal grandparents’ pool.
Some of these matters are perhaps more minor, but they reflect upon the co-ordinated care which the mother wanted to ensure for such a young child who was not able to verbally express his own needs and wants. I accept, however, that the father’s insisting on speaking personally to [X]’s treating doctor rather than relying on what the mother told him was quite reasonable in the circumstances. Sadly, however, it provides further support for the poor communication and lack of trust between the parties, at that point.
I am thus satisfied, and accept the mother’s evidence in this regard, that since separation she has been the parent to initiate communication with the father; that she has tried many forms of communication; and that she has sought to keep the father informed of relevant matters affecting [X]’s needs to assist the father with his co-ordinated care, including when [X] has been unwell. I further accept that she has continued to assist the father by providing him with information concerning [X]’s routine and ways of settling him during the more recent extended block times on Saturdays (see Annexure “C” to the mother’s affidavit of 27/8/09).
I accept that the father has been more reticent about keeping the mother advised on routine and other matters concerning [X]’s care and well-being, including health issues which for example resulted recently in the mother having to take [X] to the doctor after he had spent time with his father when he developed an ear and eye infection. The mother has therefore not felt sufficiently comfortable about the father providing a consistent routine for [X] whilst in his father’s care. This has resulted more recently in her not agreeing to the father’s request for [X] to spend an additional three hours on Saturdays with him so that he does not have to be woken from his nap. However, on a more positive note, the father has agreed to share the video library of [X]’s playtime which he is compiling for Mr N, (subject to privacy matters), with the mother if she so chooses, prior to his sending it to him.
I accept that both parents have expressed concerns about [X]’s development, in particular his speech and motor skills, and have been able to discuss their concerns more recently, both face to face and by email. For example, their more recent emails are indicative of their better communication and a much more co-operative approach (see Annexures “C” and “D” of the mother’s affidavit of 27/8/09).
I accept that the father is sincere when he says that he has been trying to “open the dialogue” between the mother and himself so that they can talk directly about [X]’s development, but that the mother is still “a bit uncomfortable” with this, so he is trying to be patient. He is of the belief that they are now managing to talk directly to one another; that he is doing his best to inform the mother about the things she wants to know about when [X] is in his care; and that the mother is now
co-operating “significantly”; although he did not think that the mother trusts him with [X] “or anything else for that matter”.With developing communication between the parents, I accept that they both wish to maintain the other’s involvement in [X]’s life and value the contribution each can offer his care, welfare and development. This increasing level of communication can only be beneficial for [X]’s future co-ordinated parental care.
There is no doubt, however. that whilst there has been some improvement in the parents’ inter-communication, the mother has yet to build up a sufficient level of trust of the father. Equally the father retains some residual lack of trust that the mother’s family will seek to have another AVO placed upon him.
I accept that the mother is sincere in saying that [X] will benefit from his maintaining a regular and frequent routine with his father. However, she expressed her concern about [X] spending extended periods of time with his father until [X] has become accustomed to it.
Overall, I accept that the parents have progressed from the early post-separation difficulties and are now demonstrating, to their credit, both a willingness and ability to facilitate and encourage a close and continuing relationship between [X] and the other parent from which [X] will benefit.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The introduction of [X] spending overnight time with his father will constitute a change in his present circumstances. It will be the first time he will have spent a night away from his mother.
In cross-examination, however, the mother conceded that [X] has had no difficulties separating from her at six months when she went back to work and left him with her mother three days a week, for a total of about 25 hours a week, and that the maternal grandmother has reported no anxiety from [X] whilst in her care.
She further agreed that [X] has coped with two different swimming coaches since May 2008 in the learn-to-swim lessons, but with some whinging and crying with the second coach to whom [X] is still adjusting. She says, however, that the father attended the lessons at the beginning and that she has always attended, initially with her in the pool with [X]. She conceded that it was necessary to balance [X]’s anxiety against his learning to swim. She also agreed that [X] has attended playgroup from nine weeks of age, but that she was always present.
I consider that it is difficult to equate the above situations with [X] spending time overnight with his father. It is also difficult to equate overnight time with the longer block time now introduced on each Saturday for [X] to spend with his father. The introduction of overnight time is a most important step and [X] must be ready to adjust to the change. The competing arguments for whether overnight time should be introduced now, on the father’s proposal, or more gradually, on the mother’s proposal, are set out below (see Substantial and significant time) and I adopt those arguments in the present context (and see also under s.60CC(3)(f) below).
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
No issue was raised by the parties under this consideration. The mother lives with [X] at the maternal grandparents home in [W]. The father’s last nominated residence in his affidavit material is at [R], which is reasonably proximate to permit [X] to move between the respective households without getting too tired.
(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;
Much of the conflict between the parents in this case concerns the way in which they respond to [X]’s day to day physical needs. I accept that the mother has been scrupulous in this regard in attending to the physical daily needs of [X], ensuring that he remains healthy and well-cared for, and in a settled and regular routine.
At times, she has experienced frustration when she perceives that her same standard of care has not been maintained when [X] has been in his father’s care. She considers that the father, in general, adopts a “very laidback” attitude to parenting and to fulfilling [X]’s needs.
In this regard, the mother complains, for example, that the father’s laidback approach is evident in his not using the same nappy cream; his not putting an insect plug in [X]’s room and netting over his cot to guard against his insect allergy; and his letting [X] get tired and unsettled if his nap times are thrown out. She also points to his poor motivation to implement her suggested care strategies. The father considered the mother worried unnecessarily about his insect allergy, but said he would comply with her requests about the child’s sleeping arrangements, when he stayed overnight. Mr Goodsell reported that he did not find the father to be inflexible on these matters.
The mother also raised her concerns with Mr Goodsell over the father’s attitude towards consultation with her over [X]’s needs, particularly his motivation to implement her suggested care strategies. She was of the view that, whilst the father met [X]’s basic needs, he nonetheless possessed a minimal appreciation of them and expressed concern over the father’s capacity to provide adequate supervision when [X] was sick or needed special attention. She contrasted this with her own knowledge and qualifications of early childhood issues and said that she was very willing to pass this information on to the father, but he refused to listen, believing he knew everything.
The father, for his part, views the mother as over-protective of [X]’s needs. Mr Givney submits that there is “a lecturing and punitive attitude permeating” the mother’s communication with the father, which is evident in her affidavit material. He further points to the uncontested fact that the father looked after [X] on the day of separation when the mother left the former matrimonial home for a continuous period of eight hours on that day, without any apparent detriment to [X] and hence some evidence of the father’s competence to meet [X]’s needs. He also points to the uncontested fact that this is the longest time that [X] has spent with his father since that day.
The mother further points to the child’s difficulties in settling into the new regime since June this year when the six hour block time was introduced on Saturdays for [X] to spend with his father. The father, however, denies any problems in [X]’s adjustment and points to the very positive benefits for him in having the opportunity to enjoy everyday activities with his father. In fact, the father has asked the mother to extend this time so that [X] does not have to be woken from his nap to be returned to his mother. He says that [X] has been playing so happily with all his old toys and with his familiar furniture around him that he gets to sleep later at such times than under the mother’s regime.
I accept that there is some difference between the parents in how they perceive and respond to [X]’s physical needs as a young child. However, there does not seem to have been any physical, psychological, intellectual or emotional harm suffered by [X] which either parent has identified on this account. In more recent times, I am also satisfied that the father has been much more open to maintaining better consultation with the mother over [X]’s physical needs. In these circumstances, I am satisfied that these differences in parenting style between the mother and the father are more a question of degree than reflective of a fundamental division between them in meeting [X]’s needs to ensure his positive care, welfare and development.
Both parents are tertiary educated, intelligent, and have shown insight into the benefit of professional input to assist them in meeting [X]’s intellectual, educative, developmental and associated needs.
No doubt, the fact that both parents attended the recent consultations with Dr G and Mr N, has helped identify for them those areas of [X]’s developmental skills, in particular his speech and language skills, which may benefit from therapeutic assistance. Once the speech pathologist and occupational therapist have also seen [X], Dr G anticipates that he will be in a better position to assist the parents in identifying and meeting [X]’s special developmental needs. I am satisfied that both parents are fully motivated and committed to meeting these challenges and assisting with any treatment for [X] that may be suggested.
I therefore accept that [X]’s emotional and intellectual needs will be better understood when the further assessments have been carried out and a more precise diagnosis can be made. This is not to deny that both parents have, to date, been doing an admirable job in meeting [X]’s needs in this regard and I have no doubt that they will remain highly motivated to provide the best possible environment to continue meeting his needs with what level of professional assistance will be required for his optimum development.
Mr Goodsell did not have the benefit of reading the Reports of Dr G and Mr N before making his recommendations in the Family Report. Nor did the parties seek to recall him for cross- examination on the final day of hearing when these Reports were available. Until a clear diagnosis and treatment plan is available for [X] it is difficult to speculate on how this will affect his capacity to cope with spending overnight time with his father. I accept the mother’s submission that these variables are relevant to how readily such time should be introduced. What can be said however is that at a chronological age of 26 months, [X] was estimated by Mr N to be functioning at approximately a 16 to 17 month level, which constituted a “moderate delay”, which was most pronounced in his speech and language skills which were functioning at approximately 13 months.
In these circumstances, I am satisfied that [X]’s developmental needs would be better served by a careful and gradual introduction to overnight stays with his father, in recognition, in particular, of the age level at which he is presently functioning. Even on the father’s own evidence, he accepted that he had been professionally advised that from the age of 2½ to 3 years, sometimes earlier depending on the child, children are generally more than prepared to spend overnight with their parents. [X] is presently functioning at about half this age in developmental terms.
(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 expert evidence in this case supports a conclusion that [X]’s level of maturity must be qualified by his present level of functioning, including his personal and social skills at 16 months; his speech and language skills at approximately an 13 months; with a 16-17 month overall developmental age level. His mother reports that he is still being toilet trained.
Both parents view their cultural and religious heritage as important to [X]’s development. Understandably, they wish [X] to experience their cultural and religious traditions. Mr Goodsell reports, in this regard, that the parents were in general agreement that they had differing cultural expectations and that there was alleged interference by the extended families, although each thought the other’s family was to blame. There is no doubt that familial conflict has contributed to at least some extent to the present situation. I accept the opinion of Mr Goodsell that “there are significant cultural and religious differences” between the two parents.
The mother alleges that the father is controlling, over-influenced by his family and their values, which she says included requiring her to be subservient to the father during their marriage and that when she refused to act in this way, he had become angry and threatening.
I am aware that the parents had joint counselling, as well as the father having individual counselling, during their marriage to address some of these issues. I am also aware that both parents have expressed their strong priority to undertake a post-separation parenting course or counselling (see Notation 2 of the Court Orders of 12/6/09). Indeed the mother has already enrolled in such a course. To the extent to which the parents are able to address their cultural and religious differences in any such sessions will inevitably assist [X] in integrating their differing values and traditions in a positive way.
The father is keen to involve [X] in his Armenian cultural and religious traditions. Overnight time would allow him to bring [X] to family gatherings and Armenian celebrations such as Orthodox celebrations in early January and other Orthodox religious events so that [X] can understand and experience his Armenian heritage. I accept that it is important for [X] to experience both his parents’ culture and lifestyle and to share their cultural identity and traditions.
I am satisfied that both parents respect each other’s traditions and have sought to allow [X] to experience both. Mr Goodsell points to the benefit to [X] of experiencing and being exposed to both his parents’ cultures. I accept therefore that extending [X]’s time with his father and the father’s family to overnight stays would assist this process.
The mother raised a valid point with Dr G as to whether [X]’s speech delay could be attributable to any confusion on his part of his being exposed to dual languages, English in the mother’s household, and Armenian in the father’s household where the paternal grandparents tend to speak to [X] in Armenian. I would hope that with the better level of communication now between the parents, and their better knowledge that [X] will need therapeutic assistance for his best development, that the parents will be guided by professional advice on this matter, especially once [X] has been assessed by the Speech Pathologist.
The father is also keen to be involved in [X]’s weekend extra-curricular lifestyle activities, such as soccer, subject to [X]’s wishes, once he starts school and would hope that the mother would similarly encourage [X] to participate. Clearly overnight stays, on at least alternate weekends, would assist the father’s involvement in any sporting or other activities.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This consideration is not relevant in this case.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
I accept that the parents have some difference in their attitudes to parenting, in particular in dealing [X]’s physical needs. As discussed above, however, I am satisfied that the extent of that difference is a question of degree and not a fundamental clash of approach. I thus rely on those matters raised above under s.60CC(3)(f) so far as they are relevant in the present context.
Having considered all the evidence in this case, I consider that the mother has demonstrated an exemplary attitude to [X]. His needs, protection, welfare and development are clearly her over-riding focus. I accept that she has a very clear and consistent approach to ensuring that his daily life is structured, and that his routine is maintained in a loving and nurturing environment.
Equally, the father has demonstrated a strong affection and love for [X] with growing acceptance of the importance to [X] of an ordered and consistent approach between the parent’s households. Mr Goodsell reports that the father “impressed as a responsible parent, who would seem unlikely to behave in a way contrary to [X]’s welfare”. I accept his assessment.
Both parents have placed importance on [X] learning to swim with the mother actively involved in the pool instruction. The father has also been responsible in wanting to be assured that the swimming pool at the maternal grandparents’ home is council approved for safety.
The way in which the mother has taken the initiative of early intervention and followed up her concerns with paediatric assessment by Dr G regarding [X]’s development, is some strong indication of the extent to which she takes her responsibilities very seriously as a parent. On Dr G’s advice, [X] had a hearing test at the Audiology Clinic at Macquarie University on 26 August 2009 with clear results, although it was suggested that further testing be done when he is older due to several middle ear infections. I have no doubt that the parents, with the mother taking the initiative, will follow this up at the appropriate time.
It is also to the parents’ credit that they have both attended the recent consultations with Dr G and Mr N. I accept the mother’s evidence that she will devote all the time and effort that is required and is highly committed to helping to improve and encourage [X]’s delayed development through ongoing treatment and various therapies. I am equally satisfied that the father places a high level of priority on, a commitment to, and an increasing preparedness to co-ordinate with the mother, in enhancing [X]’s development through therapeutic assistance.
I also find it commendable that the mother has enquired into and intends attending later this year a parenting course with Relationships Australia which involves helping children cope with change, children’s reactions to separation, supporting children, information and ideas to help being a parent when no longer partners (pursuant to Notation 3 to the Court Orders of 12/6/09). It is some further evidence of the positive and proactive approach she has adopted to her responsibilities as a separated parent.
The father conceded in cross-examination that whilst it remained a priority and he “absolutely believed he could benefit from” a parenting course, he had, to date, done nothing more in this regard as he had not had the opportunity since he had just returned from Queensland from two weeks’ employment duties; he was trying to find suitable accommodation for [X] as he was “relocating”; and he had had to prepare for the present Court hearing. I accept that the father remains motivated in this regard and that his involvement in a parenting course would be most beneficial for [X], in particular, when he is ready to move and adjust to overnight stays.
In regard to the father meeting his financial obligations to support [X], the mother complains, (affidavit of 8/5/09 paragraph 299), that she had only received two payments from the father since June 2008, and that his late furnishing of his 2008 tax return delayed the Child Support Agency updated assessment which required the father to pay $1,254.33 per month (see Annexure “R” to the mother’s affidavit of 8/5/09l).
The father, however, points to the fact that in addition to his property settlement of $8,000 which was taken by the Child Support Agency, he is now paying $330 per week in child support as from 17 August 2009. I thus accept that the father is now meeting his financial responsibilities to support [X] in this regard.
Overall, I am satisfied that both parents have demonstrated a strong commitment to [X] and have placed a high priority on their parenting role and responsibilities towards him, including ensuring that he gets the necessary therapeutic assistance for his proper care, welfare and development.
(j) any family violence involving the child or a member of the child's family;
I refer to the matters set out under s.60CC(2)(b) above and adopt them in the present context so far as they are relevant.
A Provisional AVO was taken out against the father by police to protect the mother and [X] on 21 May 2008, when the parties separated.
On 6 August 2008, interim Orders were made, with the father denying the allegations. On 4 November 2008, at Hornsby Local Court, the AVO was withdrawn and dismissed on the basis of the father providing undertakings.Interim Orders were thus in place for a period of some 5½ months. No contravention of these orders occurred in that period. There has been no other incidents since that the police have deemed required a further AVO to be put in place, although they have been called on more than one occasion involving the parties.
As referred to above, the mother raises no allegations that the father has ever used any physical violence or physical chastisement directed at or towards [X].
(k) any family violence order that applies to the child or a member of the child's family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
This consideration is not relevant in this case.
(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;
I accept that it is to the father’s credit that he wants [X] to spend more time with him and to be given the opportunity to provide a positive role model for [X]. The father feels in this regard that he has been most patient in waiting until next month (October 2009) before he seeks that overnight time commence.
I consider, however, that an order that takes into account [X]’s “moderate” developmental delay, (which is most pronounced in his speech and language skills and hence affects his level of verbal communication), would be least likely to lead to the institution of further proceedings in relation to the child.
Until the further assessments have been carried out by the speech pathologist and occupational therapist, and the further monitoring of [X]’s developmental skills permits a more conclusive diagnosis and the implementation of an individualised treatment plan, I consider that the implementation of overnight stays could be premature at this particular point in time and pose a risk to [X]’s sound developmental progress. His life, for a young child, is going to be very busy and structured with on-going adjustment to the anticipated therapeutic intervention. It is therefore important that he be ready for and not be over-stretched in coping with the adjustment to overnight stays at the same time as he is having to settle into whatever level of therapeutic assistance is recommended.
In these circumstances, I am satisfied that [X]’s developmental needs would be better served by a careful and gradual introduction to overnight stays with his father. To do otherwise, may have the potential to impact detrimentally on his capacity to cope and adjust to new situations at his own level of maturity. This could well result in the institution of further litigation, with a potential threshold Rice and Asplund argument to be first resolved.
Accordingly, I am of the view that an order which reflects a more cautious approach to the introduction of [X] spending overnight time with his father would be the less likely to result in further litigation.
(m) any other fact or circumstance that the court thinks is relevant.
The parties made no submissions under this consideration. I do not consider that any other fact or circumstance arises in this case which has not already been discussed in the context of the above primary and additional considerations.
Whether the presumption of equal shared parental responsibility applies
The mother seeks sole parental responsibility in this case. I note however that the mother made no submissions in support of this position. The father opposes such an order and seeks an order for equal shared parental responsibility.
Given my findings in regard to s.60CC(2)(b) above, I am satisfied that there are reasonable grounds to believe that the father has engaged in family violence, as defined in the Act. Accordingly, pursuant to s.61DA(2)(b), the presumption of equal shared parental responsibility does not apply in this case.
Since the presumption no longer applies, the Court must consider whether it is in [X]’s best interests for the parents to have equal shared parental responsibility. In this regard, Mr Goodsell was of the opinion that sole parental responsibility would apply in situations where there was some threat or risk to the welfare of the child from joint responsibility. In the present case, where there was an on-going relationship and a reasonable amount of time being spent by [X] with both his parents, he leant towards equal shared parental responsibility, subject to any finding by the Court that there was a risk in the future to [X]’s on-going welfare.
The Court has already made a finding in the context of its consideration of s.60CC(2)(b) that it was not convinced to the level of reasonable satisfaction that there is an unacceptable risk to [X] of physical or psychological harm from the father, nor from his being subjected to or exposed to abuse, neglect or family violence from the father, from which [X] needs to be protected. I am thus satisfied that there is nothing on this basis which would militate against the parents having equal shared responsibility for [X].
Furthermore, the basis of the Court’s finding of ‘family violence’ was in the context of conduct by the father during the marriage, including his conduct on 21 May 2008 when the mother left the marriage and an interim AVO was put in place for her and [X]’s protection. There has been no conduct by the father since, which the Court has found falls within this statutory definition.
Taking into account the primary and additional considerations, discussed above, in determining whether it is in [X]’s best interests for his mother to have sole parental responsibility, or for his parents to share equal parental responsibility for him, I am satisfied that both the mother and the father are competent parents who wish to engage actively in their parental responsibilities to ensure that [X] has the benefit of a meaningful relationship with each of them. I am further satisfied that they have both shown an insightful, mature and increasingly co-operative approach in response to [X]’s developmental needs which are currently under assessment. It is most important for his future welfare, well-being and development that he has the support and co-ordinated care and routine of both his parents, in particular to assist him not only in his optimal development, but with any frustrations or anxieties he may experience.
In these circumstances, I am satisfied that [X]’s best interests will be met by both parents being involved and having input in the joint decision-making concerning the major long term issues in his life. According, I propose to make an order in this case that the parents have equal shared parental responsibility for [X].
Equal time
Having found that the presumption of equal shared parental responsibility applies, the Court must then consider whether [X] spending equal time with each parent would be in his best interests: s.65DAA(1)(a), and whether it is reasonably practicable to do so: s.65DAA(1)(b).
Neither parent in this case seeks an order for equal time. Both agree that [X] should live primarily with his mother and spend time with his father. The father seeks that [X] spends progressively more time with him until [X] is spending five nights a fortnight with him by the time he starts school. There is thus no issue between the parents that it would not be in [X]’s best interests for him to spend equal time with them both. I accept the parents’ view in the matter and accordingly decline to make an order under s.65DAA(1)(c) for [X] to spend equal time with both his parents.
Substantial and significant time
There is no issue between the parties that substantial and significant time is reasonably practicable in this case, as defined in s.65DAA(2)(d) of the Act.
[X] is already spending time during the week and time on the weekends with his father. The real issue between the parties is when overnight time with his father should be introduced.
The mother seeks a graduated increase towards overnight stays over many months with one overnight stay on alternate weekends being introduced when [X] is 3 years old on [date omitted]2010 and a progressive increase thereafter until he spends three overnight stays with his father when he commences school.
The father also seeks a graduated increase towards overnight stays, but introduced much more rapidly and on each weekend, commencing on [date omitted]2009, when [X] is 2¼ years old, with a progressive increase thereafter until he spends a block of five overnight stays a fortnight when he starts school in 2012. I note that [X] has a very late birthday, (he will be five years old in June), for starting school in 2012. With his developmental issues, it cannot necessarily be assumed that he will commence school at this stage in 2012, rather than 2013.
Mr Goodsell also recommends a graduated increase towards overnight stays, with one overnight each week commencing from 4/8/09, and two overnights on alternate weekends commencing from 4/11/09. Given the very serious qualifications on his recommendations discussed above, (see Issues and Preliminary findings), I do not consider that the Court can place the weight which it might otherwise have done on these recommendations. Accordingly, I do not consider that the recommendations in the Family Report provide any guidance to the Court as far as the timeframe for implementation of [X] spending overnight time with his father.
I accept that the introduction of an overnight regime has the potential to assist in developing [X]’s relationship with, and attachment to, his father. It will permit the father to be much more involved, and play a more significant role, in attending to [X]’s routine and daily needs, including [X] being able to share dinner-time with his father, being bathed by him, being put down to sleep at night by him, being read stories, being attended to by his father if he wakes in the night, and his father being there when he wakes in the morning and their sharing breakfast together. The father is also keen to provide healthy meals for [X] in this context.
I further accept that it would give more time for the father to bring [X] to family gatherings and Armenian celebrations such as Orthodox Christmas in early January and other Orthodox religious events so that [X] can understand and experience his Armenian heritage.
Mr Givney also points to the fact that [X]’s time with his father has only increased from six to eight hours a week since August 2008, but that in this limited time [X] has been able to develop a strong attachment to his father. I accept that this is to the father’s credit.
Mr Givney further contrasts this small amount of time [X] spends with his father compared with about 25 hours a week that [X] spends with his maternal grandmother, with which he has apparently coped well.
The father considers that [X] has adjusted to the longer Saturday block time. He says that the longer time has given [X] the opportunity to settle into a routine now with him. [X] is now ready, without the need for any further adjustment, he says, for that routine to be extended to overnight. The delay of some four weeks before the proposed introduction of overnight stays, he says, is to give the mother time to get used to the new overnight regime as he wants her to be comfortable with it. The father accepts that [X] is not fully toilet trained, but says that it is not uncommon for children to be trained during the daytime, but still have a nappy on at night.
The father further says that he has noticed “a marked improvement” in the development of [X]’s oral and motor skills since the Saturday block time has been introduced and that he is spending as much time as possible teaching [X] these skills which can be expected to improve even more with overnight time.
The father also points to the fact that the extended Saturday times has assisted [X] sharing time with the father’s extended family and has allowed him to develop a closer bond with them. He would equally have their continued support and assistance if this were extended further to overnight stays.
The mother proposes a much more graduated commencement of overnight time. The following arguments may be advanced in favour of her proposal:
· [X] has never spent overnight with anyone except his mother. It thus constitutes a big step in his separating from his mother.
· Should he awake in the night and not find the familiar figure of his mother there to soothe and comfort him, and his familiar surroundings, he may become distressed.
· [X] is still a very young child of just 2 years of age. He does not appear to be fully toilet trained yet. His chronological age is not reflected by his developmental age, especially his delayed speech and language skills. He may therefore have more difficulty expressing his needs, feelings, and any distress he may experience. The mother asserts on these matters that:
The father is unable to read [X]’s signs and temperaments very well, and it would be in [X]’s best interests for the overnight access to occur once his speech has developed more, so that he is able to communicate verbally with [the father] … spending one night a week with [the father] before he is fully toilet trained, may disrupt this training. I feel that overnight access should only occur once [X]’s toilet training is further developed.(mother’s affidavit of 27/8/09, paragraphs 27-28).
· According to the mother, [X] is still adjusting to the longer block time on Saturdays, hence it would be premature to introduce any further extension to overnight stays. The mother claims that the father has told her on many occasions that, on almost every Saturday, [X] has not been settling, and that he does not sleep or drink his milk. The mother further states that:
The effects of the break in [X]’s routine every Saturday are very apparent to me. He will fall asleep in the car as soon as I have picked him up, or when we get home he will wait at the fridge door saying “milk”. He is also very cranky, irritable and tired and his sleeping patterns are irregular which results in a constant battle to try and get [X] back to his “normal” routine until the following Saturday.
I accept the mother’s evidence on these matters over that of the father and find that [X] is still adjusting to the extended time on Saturdays. This is not to say, however, that [X] is not enjoying the extended time he is spending with his father, nor to say that it is not a very positive experience for both of them.
· The parents have different attitudes to parenting. The mother complains that the father is “very laidback” and has poor motivation to implement her suggested care strategies. The father complains that the mother is “over-protective”.
· The father has relied significantly on family members in the past when [X] has spent time with him. This could be expected to increase with overnight stays.
· The parents are yet to communicate and co-operate sufficiently to establish a co-ordinated routine for [X] at their respective households to ensure [X] is able to make the transition to overnight time with his father.
· [X] cannot as yet effectively verbalise and communicate his needs and concerns.
· Given their past history, the mother does not yet fully trust that the father will listen to her on matters concerning [X]’s routine and other needs.
· [X] may pick up on his mother’s anxiety on separation. Mr Goodsell agreed in cross-examination that the mother was somewhat anxious, and that this must be taken into account, and that [X] would become aware of his mother’s emotions.
· Until a precise diagnosis and co-ordinated treatment plan has been settled by his paediatrician and therapists, and until [X] and his parents are familiar with it, it would be premature to make any further changes to [X]’s present routine. The objective should be to maximise optimal learning and development and to minimise any stress or pressure on him which may delay his progress. With these still unknowns, it is better to err on the side of caution, and not introduce such a significant change in [X]’s regime as overnight stays until there is greater certainty that he will be able to adjust to it.
· With time, consistency and regularity [X] will become more comfortable with extended periods with his father. A gradual approach will be more beneficial to him by providing a smooth transition from the current arrangements to increased time with his father.
· The father’s employment demands long hours and frequent travelling inter-state and/or overseas for sometimes lengthy periods at a time. This may pose disruption in developing overnight continuity and routine for [X] and may provide uncertainty and instability which may adversely affect any progress he may otherwise be making with therapeutic intervention.
· The importance of maintaining stability in [X]’s young life, where he is experiencing delayed development, is crucial to his future development, health and well-being. To introduce overnight stays at this delicate point in time may destabilise him and be harmful to his behavioural development. Mr N suggested to the parents that [X]’s language delay could possibly lead to behavioural problems if he became frustrated and anxious since his verbal communication is more limited. This would indeed be unfortunate and points to the importance of the care with which [X]’s future adjustment must be considered.
· [X] would best thrive, socially, emotionally and cognitively if a smooth transition in his routine is introduced gradually towards overnight stays.
Instructive in weighing the competing arguments, are the guidelines provided by Mr N to the parents which reinforce that children with “Autism Spectrum Disorder or Similar Issues”:
need a great deal of certainty, predictability and routine in their lives. Divorce and separation provide the exact opposite … They need to know where they are living, where they are staying, and when these changes are happening. They need to know what they are doing and when and where and why … [they] need an extremely structured and secure daily, nightly and weekend routine. They need to know exactly what is happening and why and when.
I accept that the mother has always been very focussed in this way, in any event, in ensuring that these matters of certainty, predictability and routine are present in [X]’s life. I further accept that the father has increasingly come to understand their importance for [X].
I also accept the following concluding submission by Mr Givney that “both parents work, both are professional high achievers … both are very well qualified and have a belief in tertiary education and a belief in pursuing the medical profession and associated professionals to ensure [X] gets the best outcome from any problems” he may have. He concedes that the mother has been “very proactive” in this regard; that both parents have “[X]’s best interests at heart”, but that it is hard for them to see the “commonality” between them at this point in time, but that it is important that [X] experience his father’s household more than presently. I fully accept these matters, but the key issue still remains, at what pace.
In conclusion, having considered all the evidence and the respective submissions of both parties, I am satisfied that it is in [X]’s best interests that a more cautious approach, providing for a smooth transition to introducing [X] to spending overnight time with his father, is required in this case.
The extent to which he is able to cope with a further and significant adjustment in his young life of overnight stays, coincident with his still undergoing important therapeutic assessments, with a view to continuing therapeutic intervention, is too uncertain at this stage. I consider that it is better to have this assessment process completed and his therapeutic assistance plan in place and [X] settled into it before any further demands are made on his coping skills.
The parents will have the dedicated assistance of a team of professional therapists under the umbrella of Dr G. Both parents are clearly responsive to this assistance.
As Mr N has identified to the parents, there is already some risk for [X] of behavioural problems, should his delayed speech cause him frustration and anxiety. It is important that he be given every assistance in coping with these developmental issues, without putting any further pressure on him at this important stage.
In so finding, I accept that the father is a responsible parent, with a supportive family network, who recognises the need to give overriding priority to [X]’s welfare, development and well-being. I am sure the father will understand the need for some further patience in these matters to ensure that when overnight time is introduced, [X] will be competent to share and enjoy it with him, free of the potential risks identified in too premature an introduction. Mr Goodsell reported that the father stated his preparedness to build up to overnight time, and recognised that it was necessary to proceed at [X]’s pace, and at this point in time, his pace is yet to be fully understood.
I propose therefore to make graduated orders in [X]’s best interests which will provide for [X] to spend substantial and significant time with his father pursuant to s.65DAA(2)(e), as defined in ss.65DAA(3)(a), (b) and (c) of the Act.
Changeovers
The parties made no submissions on this issue. The mother, however, proposes that changeovers be effected at the Parramatta Police Station, presumably given the significant history of conflict between the parties at such times, the assistance of the police sought on more than one occasion, and her continuing fears requiring her to have the support of a family member on each such occasion.
The father proposes that changeovers be effected at [C] Shopping Centre.
I accept the father’s proposal in this regard. I am satisfied, as discussed above, that the degree of tension and conflict has lessened since the parents have been using the neutral location of [C] for several months now, rather than their respective residences. It is a public place, but unlike a police station does not have the negative connotations which a child may in time associate with his parents and their relationship with him.
Furthermore, some of the previous conflict at changeover was in the context of the interim AVO being in place, and the difficulties of involving other members of the father’s family to collect and return [X] on his behalf. Indeed, members of the extended families on both sides appear on occasions to have escalated the tension. This appears to be no longer the case. There is no evidence of any conflict or confrontation since handovers have been effected at [C]. I understand that the father is now attending changeovers alone, but that the mother has the support of a family member, which I consider not unreasonable given the prior history of conflict on such occasions.
I certify that the preceding two hundred and one (201) paragraphs are a true copy of the reasons for judgment of Orchiston FM.
Associate: Kate Lambert
Date: 2 October 2009.
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