Lucian & Naraz
[2022] FedCFamC2F 628
•18 May 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lucian & Naraz [2022] FedCFamC2F 628
File number(s): NCC 3521 of 2019 Judgment of: JUDGE KEARNEY Date of judgment: 18 May 2022 Catchwords: FAMILY LAW - parenting – 10 year old child - a vulnerable child with complex medical, behavioural and learning needs that requires consistency – where some limited capacity in administering a medical regime is evident - sole parental responsibility appropriate – no unacceptable risk of harm – promotion of meaningful relationship with both parents - best interests of child Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Cases cited: Aldridge & Keaton [2009] FamCAFC 229 at [75]
Johnson and Page [2007] FamCA 1235
M v M (1988) 166 CLR 69
Mazorski & Albright [2007] FamCA 520
Division: Division 2 Family Law Number of paragraphs: 260 Date of hearing: 27-29 April 2022 Place: Newcastle Counsel for the Applicant: Mr B Kelly Solicitor for the Applicant: Nash Allen Williams & Wotton Solicitor for the Respondent: Self-represented litigant Counsel for the Independent Children's Lawyer: Mr C Boyd Solicitor for the Independent Children's Lawyer: Intercept Law ORDERS
NCC 3521 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS LUCIAN
Applicant
AND: MR NARAZ
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE KEARNEY
DATE OF ORDER:
18 MAY 2022
THE COURT ORDERS THAT:
1.All existing parenting orders are discharged.
2.MS LUCIAN (‘the mother’) shall have sole parental responsibility for X (‘X’) born in 2012.
3.X shall live with the mother.
4.X shall spend time with MR NARAZ (‘the father) as follows:-
(a)each alternate weekend from 5.00pm Friday to 6.00pm Saturday, with the first such weekend to be the weekend immediately following the date of these Orders; and
(b)each year when X does not wake up in the father’s care on X’s birthday –
(i) from 4.00pm until 7.00pm on a school day; and
(ii) from 10.00am until 2.00pm on a non-school day.
(c)each year on Father’s Day from 9.00am to 5.00pm;
(d)each year when X does not wake up in the father’s care on Christmas Day, from 11.00am 25 December until 6.00pm 26 December.
5.To facilitate time in accordance with Order 4, the mother will deliver and collect X from the father’s residence situated at B Street, Suburb C New South Wales PROVIDED THAT if the father’s residence changes to a location more than a 20 kilometre radius from the McDonalds Restaurant at Suburb C, changeovers for X to spend time with the father shall be facilitated by both parties attending the McDonalds Restaurant at Suburb C.
6.To facilitate changeovers in accordance with Order 5, the father will give the mother at least 48 hours written notice of any change to his residential address.
7.Notwithstanding the allocation of sole parental responsibility to the mother, the mother shall keep the father informed about all treatments by doctors and other health professionals for X, including details of all medication prescribed for X and details of all diagnoses for X by medical professionals.
8.Upon written request from the father, the mother shall provide to the father copies of all school reports for X.
9.The mother is permitted to provide a copy of these Orders to X’s educational and extra-curricular activity providers as well as with any medical and allied health professionals who provide services to X.
10.All outstanding applications in relation to Part VII of the Act are withdrawn and dismissed.
11.The Independent Children’s Lawyer is discharged.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Lucian & Naraz has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE KEARNEY
INTRODUCTION
These proceedings involve a parenting dispute invoking Part VII of the Family Law Act 1975[1] (Cth) between the Applicant, MS LUCIAN (‘the mother’) and the Respondent MR NARAZ (‘the father’).
[1] Unless otherwise specified any reference to legislation shall be a reference to the Family Law Act 1975 (Cth)
There is one child the subject of the dispute namely, X (‘X’) born in 2012 who is ten (10) years of age.
X was independently represented by BRIAN QUINN as Independent Children’s Lawyer (‘the ICL’).
The genesis for the parenting proceedings was the mother’s concern for X’s safety whilst in the care of the father, because she alleged the father had refused to administer prescribed medication (Ritalin) to X and then informed her that he supported the use of electroconvulsive shock therapy (‘ECT’) to treat X.
Initially, the dispute was limited to the allocation of parental responsibility, whether X should live equally between the parties or otherwise that he live with the mother and spend time with the father. However, midway through his cross‑examination of the mother, the father changed his position to one where X should initially live with him and spend limited time with the mother, followed by X spending equal time with each party.
For the reasons which follow, I have made orders that largely reflect what the mother and the ICL sought so that the mother will have sole parental responsibility for X, who shall live with her and spend one night a fortnight in the care of the father.
THE ADJOURNMENT APPLICATION
On the first day of the trial, the father was legally represented by Elizabeth Moran (‘MORAN’[2]). The father had filed an application in a proceeding and evidence in support of the trial being adjourned. The mother and the ICL opposed the adjournment although the mother’s counsel was clear to observe the mental health challenges the father faced, something which reflected well on her attitude towards the father’s circumstances and the importance she placed on her responsibility as a parent of X’s. I conducted an interlocutory hearing and reserved my decision for a short period.
[2] Out of respect for each person’s personal preference about how they may wish to be identified in terms of their preferred honorific, persons (other than the parties or children of either party) shall be referred to by their surname only.
When the proceedings resumed, I adjourned the trial until 10.00am the following day and granted leave for MORAN to withdraw from the proceedings. As I gave oral reasons on the day, I do not intend to repeat them here.
I also ensured the registry was able to accommodate the father so that he could consider any subpoenaed material as well as the material and the proposed tender bundle that his former solicitor gave to him in court.
On the second day, when the trial commenced, the father was not legally represented, and the Court went to some lengths to explain the procedure to him.[3]
[3] Re: F (Litigants in Person Guidelines) [2001] FamCA 348
THE EVIDENCE
The mother read and/or relied upon the following documents:-
(a)Initiating application filed 31 October 2019;
(b)Affidavit of Ms Lucian filed 29 March 2022[4];
(c)Affidavit of Mr D filed 30 March 2022[5];
(d)Updating affidavit of Ms Lucian filed 19 April 2022[6];
(e)Costs Notice dated 26 April 2022 – marked exhibit “M1”; and
(f)Outline of Case document filed 27 April 2022 – marked exhibit “M2”.
[4] For convenience, references to any content within the affidavit of Ms Lucian shall be prefaced by “L” followed by the numbered paragraph enclosed within square brackets and annexures identified alphabetically.
[5] For convenience, references to any content within the trial affidavit of Mr D shall be prefaced by “D” followed by the numbered paragraph enclosed within square brackets.
[6] For convenience, references to any content within the updating affidavit of Ms Lucian shall be prefaced by “2” followed by the numbered paragraph enclosed within square brackets and annexures identified alphabetically
The father read and/or relied upon the following documents:-
(a)Amended response to initiating application filed 24 April 2022;
(b)Affidavit of Mr Naraz filed 25 April 2022[7];
(c)Costs Notice dated 22 April 2022 – marked exhibit “F1”;
(d)Outline of Case document filed 26 April 2022 – marked exhibit “F2”;
(e)Email setting out the father’s new proposal – marked exhibit “F12”;
(f)Various other exhibits.[8]
[7] For convenience, references to any content within the affidavit of Mr Naraz shall be prefaced by “N” followed by the numbered paragraph enclosed within square brackets and annexures identified alphabetically
[8] Booking History of the mother at K Hospital, EDB Date 20 April 2012 - marked exhibit “F3”
Psycho-social assessment of the mother, pg 1 of 2, EDB date 20 April 2012 – marked exhibit “F4”
Review application funding for X at L Pre-school, dated 20 May 2016 – marked exhibit “F5”
Psycho-social assessment of mother, EDB date 24 March 2016 – marked exhibit “F6”
K Hospital Assessment of X, pg 1 and 3, dated 3 Dec 2018 – marked exhibit “F7”
Assessment record of Ms M, dated: 23 Oct 2003 – marked exhibit “F8”
FaCS report, dated: 1 Dec 2015, pg 2 of 4 – marked exhibit “F9”
Contact report dated: 14 Dec 2015, pgs 1-2 – marked exhibit “F10”
Contact record Pg 3 of 4, dated 14 Dec 2015 – marked exhibit “F11”
The mother objected to the father relying on paragraph 191 and annexure “C” to his affidavit being a letter of support from Ms E (‘Ms E’). Having heard the submissions, I dismissed the mother’s objection on the basis that I would read the document and assess what weight I should give it in due course.
The ICL read and/or relied upon the following documents:-
(a)Costs Notice dated 26 April 2022 – marked exhibit “ICL1”;
(b)Outline of Case document filed 23 April 2022 – marked exhibit “ICL2”.
(c)Child Inclusive Conference memorandum dated 5 February 2020 by Family Consultant Mr F (‘the CIC’) – marked exhibit “ICL3”; and
(d)Medical certificate dated 15 June 2021 from Dr G about the father – marked exhibit “ICL4”.
For the same reason as I dismissed the mother’s objection to Ms E’s letter being admitted, I will have to assess the weight I give to the CIC and paragraphs 5 to 14 of the mother’s updating affidavit because the author of the CIC was not made available for cross-examination and neither were the identified staff from H School or any business records tendered to support what is ascribed as being said by those staff to the mother on 5 April 2022.
In addition, I was asked to read the family report dated 4 December 2020 (‘the family report’) as prepared by court child expert Ms J (‘the child expert’) - marked exhibit “A”[9].
[9] For convenience, references to any content within the family report of Ms J shall be prefaced by “FR” followed by the numbered paragraph
Furthermore, the ICL identified that a tender bundle had been prepared and served and asked that it be marked for identification purposes in case the bundle became a convenient way to identify any proposed tenders. There was no objection to this course and I marked the bundle “MFI1”.
On the last day of the trial, the father made an application for Ms N, Ms E, Ms O and Mr P to give oral evidence. During the course of oral submissions, the father withdrew his application regarding Ms E after I reminded him that her evidence was being read by me (albeit what weight I gave it was yet to be determined). The other two parties opposed the oral applications on the basis of a lack of procedural fairness and the reality that by calling these witnesses the trial would be part-heard. I dismissed the father’s oral application and gave oral reasons which I will not repeat here.
I have had the benefit of observing all the witnesses give evidence and insofar as the father is concerned, I have also observed him conduct the hearing. Overall, I found the father’s evidence to be vague and confusing at times which tainted his credibility as a witness. The mother and MR D both gave evidence in a forthright manner and at times, displayed a sympathetic approach to the father’s line of questioning when, given the circumstances, they did not have to. I found their evidence to be balanced and honest. The father’s presentation may have been a feature of his multiple diagnoses and/or general nervousness about conducting the trial himself. Regardless, where there was a conflict between their evidence, I preferred the evidence of the mother and MR D over the father’s.
I found the child expert to give measured and thorough evidence with the basis of her opinions clearly expressed, even under robust cross-examination from the father. On that basis, wherever there were inconsistencies between the evidence of the father and the child expert, I preferred the evidence of the child expert.
PARTIES’ PROPOSALS
The mother initially relied upon the relief set out in her initiating application which, taking a broad brush approach sought that:
(a)X live with her;
(b)She have sole parental responsibility for X;
(c)X spend time with the father each alternate Friday night and on Christmas night each year and at other times as agreed;
(d)Changeovers to occur at the McDonalds Restaurant at Suburb C; and
(e)The father to have access to certain information about X
During the course of the hearing, the mother’s proposal changed in the following manner –
(a)Firstly, that changeovers occur by way of her dropping and collecting X from the father’s home unless this became impractical;
(b)Secondly, that on X’s birthday he spend time with the father on a school day from 4.00pm to 6.00pm and on a non-school day from 10.00am to 1.00pm;
(c)Thirdly, that X spend time with the father on Father’s Day from 9.00am to 5.00pm; and
(d)Finally, the omission of the ability for the parties to agree to additional time for X to spend with the father other than as specified within the Orders
In summary the ICL sought that:-
(a)X live with the mother;
(b)The mother have sole parental responsibility for X;
(c)X spend time with the father in the regime as sought by the Mother save that if X’s birthday falls on a weekend the time should conclude at 2.00pm not 1.00pm;
(d)Changeovers to occur at the father’s home with the mother delivering and returning X provided that if the father moves to a residence more than a 20 kilometre radius away from the McDonalds Restaurant at Suburb C, then changeovers revert to occurring at that restaurant;
(e)Provision for the father to have access to certain information about X as sought by the mother.
The father’s original proposal was set out in his amended response to initiating application filed 24 April 2022, which taking a broad brush approach sought that:-
(a)The parties have equal shared parental responsibility for X;
(b)X live equally between the two parties on a week-about basis;
(c)X spend half the school holidays with each party and at specified times on various special occasions;
(d)X communicate with each of the parties every week;
(e)Changeovers at the McDonalds Restaurant at Suburb C;
(f)Provision for the parties to keep each other informed about various issues regarding X’s welfare;
(g)An injunction issue prohibiting the parties from denigrating each other to X, discussing the proceedings with X, using illegal drugs or consuming alcohol to excess when X is in their care and ensuring X is not exposed to family violence whilst in their care;
(h)The provision of an Australian passport for X which would then support the father’s desire to take X overseas to England in 2022 (which the father later changed to 2023) to attend his paternal aunt’s wedding.
During the course of the hearing, the father’s proposal changed dramatically, insofar as he considered that X was at unacceptable risk in the mother’s household due to her being a perpetrator of family violence (amongst other concerns). Discussions ensued between bar and bench, and as a result, by the next morning, the father caused an email to be sent to the mother’s solicitor and the ICL setting out what his relief now was.[10]
[10] Exhibit “F12”
On the final day of the trial, the father submitted that wherever there was a conflict between his amended response and Exhibit “F12”, the father said that I should prefer the terms of Exhibit “F12”. When I reviewed Exhibit “F12” it became apparent that whilst the father had provided for what would happen after the mother sought third party assistance as specified therein, there was no proposal for X to spend time with her in the meanwhile. The father said that this was an omission and I should read Exhibit “F12” in tandem with his oral submission that until the mother satisfactorily completed the identified courses and obtains the mental health plan, X’s time with the mother would be the same as it is between the father and X now (each alternate Saturday night).
So what the father’s proposal became is summarised below –
(a)Until the mother completes an anger management course and a domestic violence course or sessions of relationship counselling and produces a mental health plan regarding the management of her bipolar adjustment disorder and her mental health; X should spend time with the mother from 10.00am Saturday until 5.00pm Sunday on each alternate week;
(b)Upon completing the courses and providing the mental health plan referred to above; X should spend equal time with the parties on a week-about arrangement in accordance with X’s wishes;
(c)The mother be restrained from permitting X to have contact with the maternal grandmother on an unsupervised basis;
(d)All other orders as sought within his amended response to initiating application that are not otherwise in conflict with the above, with a particular reference to ensuring X is not exposed to family violence.
Having regard to the evidence, factual findings are made on the balance of probabilities and statements of facts set out below shall constitute findings of fact.
In order to properly consider the issues for determination, the relevant chronology in these proceedings is explored below.
CHRONOLOGY
The father was born in England in 1977 and is 44 years of age. The father is a British citizen and holds no current passports.[11]
[11] N [8] – [9]
The mother was born in Australia in 1984 and is 37 years of age. In her application, the mother identifies as Aboriginal.
When the father was 14 years old and living in England, he was diagnosed with ADHD but said that he did not receive any medication and was unaware of the diagnosis because his father wouldn’t let his mother tell him. The father was questioned about paragraph 4 of his affidavit which stated that he had no cognitive impairment. The paragraph also stated that he had had a memory assessment at K Hospital which he said confirmed he had no issues. Finally, the paragraph recounted him seeing his psychiatrist on 15 June 2021 which also concluded that there was no evidence of an impairment. Exhibit “F10” is a one-page medical certificate from Dr G, Regional Director of Psychiatry at Q Clinic dated 15 June 2021. The father agreed that this was one and the same as the document referred to and bearing the same date within paragraph 4 of his affidavit. The body of Exhibit “F10” is set out below –
This is to certify that Mr Naraz is receiving medical treatment and today I conducted a min mental state examination Tuesday 15 June 2021. I advise he demonstrated no evidence of cognitive impairment. He obtained a perfect score of 30/30. This Certificate was completed on 15/6/2021.
In 1983, Mr D (‘MR D’) was born and is 36 years of age.
In 2002, the mother’s first child Ms M (‘Ms M’) was born and she is now an adult. In 2003, an anonymised report was made to the Department of Communities and Justice (‘DCJ’) alleging that the mother had a mental illness and was off her medications and that she had scratched “Mr R” on the right hand side of the face and made him bleed and further that he had slapped the mother in the face.[12] I heard that “Mr R” was Ms M’s father. The father cross-examined the mother about this incident. She denied she had a mental health illness but said she may have been depressed because “Mr R” had been violent towards her.
[12] Exhibit “F8”
It was common ground that when Ms M was a young child, there was an unsubstantiated allegation that a 6 year-old relative had sexually assaulted her. There was no evidence before the court about the incident. The father cross-examined the mother in a manner that suggested he considered that the mother was to blame for the incident. I sustained an objection to the line of questioning continuing given its historical relevance. As observed by the mother’s counsel (and by me) the mother became visibly upset.
In 2009 the parties commenced living together in Australia and later that same year, in 2009 they married.
In 2012, X was born. Both parties made allegations against each other of family violence. The father cross-examined the mother rigorously about his assertions,[13] all of which she denied.
[13] See for example N [143]
The parties separated in 2012, with the mother deposing to separation occurring in 2012 (when X would have been about 4 weeks old) and the father deposing to approximately 2012 (when X would have been about four months old).
In her affidavit the mother deposed to an incident when we finally separated during which she alleges the father was perpetrating family violence. The mother recounts that the father left the home and returned with the Police, alleging that the mother was violent. The Police facilitated the father removing some items, after which the Police escorted the father from the home.[14]
[14] L1 [45] – [49]
In cross-examination the mother confirmed her written evidence that after separation, she tried to support the father spending time with X.[15] The father says that he was spending alternate weekends with X.[16]
[15] L1 [50]
[16] N [97]
The father says that MR D and the mother commenced a relationship in 2013[17] and in cross-examination, MR D agreed with that proposition.
[17] N [19]
In 2014 the parties divorced.
Originally, X was enrolled at S School (‘S PS’) before transferring to H School (‘H PS’) to start Year 2 because of the program H PS offered for autistic children.[18]
[18] L1 [154]
MR D said that he and the mother had never lived together but he continues to spend a few nights a week in the mother’s household.
The father was taken to a NSW COPS event dated 6 August 2013 and denied that the NSW Police had spoken to him about the mother’s concerns that X had bruises after being returned by him to her care. He denied that DCJ had called him.
In 2014 it was common ground that the father had been convicted of a number of traffic offences related to driving whilst his licence had been suspended or cancelled. By way of explanation, he said that due to him sharing one letterbox with six unitholders, notices from the government had not been received by him. In my view, these events were the early signs of the disorganisation that has continued to be a feature in the father’s life.
On 1 December 2015, DCJ produced a contact record alleging that Ms M (then 13 years of age) was coerced into having sex by another 13 year old child.[19] The father sought to cross‑examine the mother about this incident. She did not deny the incident. The father accused the mother of kicking Ms M out of her house. He relied on a DCJ contact report dated 14 December 2015.[20] The mother said that Ms M had been acting out and had “rushed at her” and that a decision was made for Ms M to spend some time with the maternal grandmother in the short term. Exhibit “F10” records the mother wanting Ms M to return to her care and get away from the maternal grandmother and at that time, the two adults were no longer talking because Ms M was not coming back home.
[19] Exhibit “F9”
[20] Exhibits “F10” & “F11”
In 2016, the mother’s third child was born, T (‘T’) and T is now six (6) years old.
On 24 March 2016, the mother was discharged from the K Hospital following the birth of T. She was cross-examined about the contents of a Psychosocial Assessment Report.[21] She was asked why she had been recorded as answering “no” to questions related to any concerns about domestic violence and it was put to her that the line item Response to DV questions – No DV identified – info refused meant an unwillingness on her part of some sort. In closing submissions I heard that the document could be interpreted various ways which given that the author was not cross-examined made it difficult for me to accept either party’s contentions. I also noted that in reading the exhibit, the answer “no” was recorded after similar questions as in Exhibits “F3” and “F4” regarding the mother’s mental health history.
[21] Exhibit “F6”.
In about 2016, the parties participated in a legally-aided family dispute resolution event.[22] In the same year, X began spending regular time with the father five nights a fortnight.[23]
[22] N [30]
[23] L1 [112]
On 20 May 2016, staff from the L pre-school (where X attended two (2) days per week) applied for a grant to provide X with additional educational support on the days he attends.[24] Within the application, it was reported that following an assessment by a speech pathologist, X had been diagnosed with a speech/language disability (moderate and severe).
[24] Exhibit “F5”
On 21 November 2016 the father agreed that he informed consultant psychiatrist Dr G (‘DR G’) that his marriage had failed due to the mother’s bipolar disorder. During cross-examination the father was adamant that the mother had the diagnosis because of the records he had seen and that he knew she had been prescribed Lithium.
On 11 December 2016, the father was assessed by clinical neuropsychologist Mr U (‘MR U’). In cross-examination the father agreed with the recommendations of the assessment, a summary of which included the father’s ability to concentrate as being low average and his attentional flexibility being low average to average. The father agreed that as a result of the assessment, there had been a number of changes to his medication regime and currently he is not taking Ritalin but is taking Vyvanse (dexamphetamine) and Zyban (dopamine reuptake inhibitor). The father was taken to paragraph 78 of the family report where collateral information from the K Hospital record the father presenting with poor short‑term memory problems. As part of a general denial of that summary, the father relied on his past test results and that his memory is not problematic or an issue.
The father was taken to a surgery consultation note by Dr V of H Medical Centre dated 24 October 2017. The father could not explain why there was comment ?schizophrenia saying that he had never received that diagnosis. When asked about why there was comment ETOH-binge, the father said that he drinks at times but denied that he has an alcohol abuse problem.
The father was taken to a medical record from H Medical Centre recording a visit he had with Dr W on 12 January 2018. The father agreed that the document was accurate when it stated that he was still feeling down and finding it difficult to get out of bed on certain days. He said that he was always able to get out of bed when X was in his care but that on some days he had spent all day in bed.
Having been taken to correspondence dated 5 March 2018, from DR G to the father’s referring general physician from H Medical Centre, the father agreed that the stressors referred to in the correspondence related to the court case he was involved in to do with his accommodation at the time and that he had run out of his prescribed medication a week earlier but it was not because he had forgotten but rather he just hadn’t had a chance to get the is script filled. He agreed that he may have told DR G that he was anxious, and suffering from forgetfulness and fatigue.
Having been taken to a medical record, the father agreed that on 7 May 2018 he had seen DR G and told him that he was facing eviction over a dispute about the common use (by six units) of one letterbox. He also agreed that he would have told DR G that he was still disorganised and losing things, being forgetful and chaotic. The father agreed that at this time, X was spending five (5) nights a fortnight with him.
The mother deposed that in about 2016 or early 2017, the father was evicted from his home and then squatted in the residence for the next two years.[25] Although there is a dispute about the timing of the father’s accommodation issues, on the face of the evidence it was common ground that the father was worried about being evicted, at least in 2018.
[25] L1 [103]
On 3 December 2018 the mother presented X to the emergency department of the K Hospital.[26] She was cross-examined by the father about this incident. She said that her son returned from the father’s care and became so disorientated that he didn’t know who she was and she literally thought he was going to die. The father took the mother to the hospital’s assessment document which identified that X had a viral UTI and heat rash. It was apparent from the discourse between the parties that the mother had concerns that X had suffered heat stroke because of the way he presented to her when he was returned to her care. I accept from the father’s line of questioning that the underlying condition was a urinary tract infection and he could not be properly blamed.
[26] Exhibit “F7”
At some point the father arranged for X to see psychologist Mr Y.
The mother deposed to the father having been homeless and living in his car for about two months in early 2019.[27]
[27] L1 [102]
Sometime in 2019, Dr Z prescribed X with Ritalin.[28]
[28] LI [114]
In March 2019 it seems that the parents had taken X to see Dr AB of AC Medical Centre who gave them a referral to paediatrician Dr AD (‘DR AD’). In cross-examination, the father rejected that this was the first time the parents had tried to take steps to support X. The mother could not recall ever seeing the referral. The father denied that the mother decided to take steps to find an earlier referral to a privately funded paediatrician because of the long wait to see DR AD.
Despite this referral, on 3 May 2019, the mother had arranged for X to see paediatrician Dr Z(‘DR Z’). It was common ground that the mother had reached out to a private paediatrician rather than have X wait for DR AD.
The father must also have decided against DR AD at some point because by 17 May 2019, X had been taken by the father to see another paediatrician, Dr AE (‘Dr AE’), whom the father described to the court as being “one of the best on the coast”. It was evident from the family report that DR AE was aware that DR Z had already been engaged to treat X.
In or about July 2019, the mother says that shortly after informing the father of their son’s diagnosis, the father told her that rather than Ritalin, the father’s view was that X might benefit from ECT.[29]
[29] LI [116], [123] & [146]
The father was taken to a GP Mental Health Treatment Plan dated 1 July 2019 and agreed that the plan was accurate when it described his ‘problems’ (at the time) as being ADHD, a medical condition and depression. He acknowledged that one of the goals to help with his depression was to reduce stress and he had done this by securing accommodation.
The father was taken to a document in “MFI1” which set out a conversation a staff member from the school had had with the father, during which she was reportedly challenged by the father as to why the school had not completed the checklists for DR AE. The author of the document said that the request from AK Centre (DR Z) had come in first and it had been completed before staff were aware that X had two paediatricians. The document described the father as getting quite agitated, which the father denied.
In August 2019, the mother says that for the first time, she was told by the father of his diagnosis of attention deficit hyperactivity disorder (‘ADHD’) and that he was now medicated.[30]
[30] L1 [113]
On 28 August 2019 and 9 September 2019, X was assessed for the purposes of a report prepared by two clinical psychologists from the AF University and dated 14 October 2019 (‘the AF University assessment’). The findings of the AF University assessment are recorded within paragraph 12 of the family report as being –
·Specific learning disorder – severe impairment in reading, written expression and maths;
·Assessed as functioning within the ‘low range’ of average intelligence.
The father was asked if he accepted the diagnosis and he agreed. When asked whether he agreed to the report writer’s views that X’s disorder was permanent, ongoing and severe the father hesitated and then said he would agree. The father denied that he had been shopping for alternate diagnoses to the diagnosis given by DR Z saying that was not the scope of the AF University assessment. I accept his evidence because it appears to be the case given the authors were psychologists and the assessment appeared to focus on X’s learning abilities.
In cross-examination the father agreed that he knew about DR Z but (essentially) he wanted a second opinion from a person to whom he had been referred by a friend and so he pressed ahead with taking X for another assessment.
The family report records that in October 2019 X was diagnosed with:-
(a)Specific learning disorder – severe impairment in reading, writing, expression and maths;
(b)Assessed as functioning within the ‘low range’ of average intelligence.[31]
[31] FR-83
It was common ground that at some point at or around that time, DR Z spoke with the father about X’s circumstances.[32] The mother says[33], and I accept, that initially the father did not administer the Ritalin as prescribed.
[32] L1 [128
[33] LI [115]
At some stage the father agreed to give X his Ritalin but asked for the whole prescription in advance.[34] In challenging the mother about this last allegation, I understood that the father was denying his request for either a whole script or at the very least a bulk amount of his son’s medication. This line of questioning was inconsistent with his own affidavit evidence. At paragraph 167 of his affidavit, the father says that he had explained to the mother that he wanted the medications so that he could put a system in place and avoid issues. Ms Lucian wants to give a few at a time so she has control.[35] It is unsurprising that the parties have been able to co-operate when even at trial, the father presented two different opinions about the same important issue.
[34] L1 [118]
[35] N [167]
In any event, by way of explanation for her decision, the mother said that Ritalin is an “S8” medication or a drug of addiction, permitting only one script to be filled at any one time and for this to be kept at the same chemist. The mother said that if the prescribed medication was lost it was a “hassle” to get another prescription filled because she had to provide a satisfactory explanation.
On 31 October 2019, the mother commenced these proceedings and I have previously recorded the final relief she sought therein and the concern she had about the father’s view regarding the administration of ECT upon X (the context of which the father denied in cross‑examination).
On 10 December 2019, the father filed his responding material in which he sought “100% custody” with X’s time with the mother to be supervised. On the same day, the Court ordered that:-
(a)X live with the mother;
(b)X spend five nights a fortnight with the father;
(c)X spend ‘week about’ time with both parties during school holidays; and
(d)Various other orders including the appointment of an ICL and the preparation of a CIC.
On 1 February 2020, Ms E wrote a letter of support for the father to have equal access to decisions about X’s health and education. She also opined that the father did not pose any risk of harm issues for X and in her observation, the father had capacity to provide for the needs of X. The letter is undated and was annexure “C” to the father’s affidavit. There is limited weight I can give to this document given that the author was not the subject of cross-examination.
On 4 February 2020, the mother, father and X participated in a child inclusive conference which produced a CIC the following day. The father is recorded within the document to concede that he has some memory issues causing him to forget appointments in the past but now he uses a diary.[36] When this aspect was put to the father he disputed it and because the author was not called, unless there was an agreed fact as between the author and a party, I gave no weight to the contents of the CIC.
[36] CIC-7
On 5 February 2020, the CIC was produced.
On 19 October 2020, the mother says that when she collected X early from school for an occupational therapy appointment he told her that he was hungry having not been given breakfast by his father. In cross-examination she confirmed this conversation and that she took X to a McDonalds Restaurant to give him some food.[37] The father denied that he failed to ever feed X when he needed it because he said that as a backup, he left money for X at the school canteen.
[37] L1 [164] & [165]
On 26 October 2020, it was common ground that the father had been transported by ambulance to the K Hospital after a fall in a public space.[38] The father was taken to medical records from the Emergency Department of the hospital and disputed that he was intoxicated from alcohol.
[38] L1 [204]
On 30 October 2020, the family participated in family report interviews with the family report produced on 4 December 2020. The father denied telling the child expert that he was late arriving for his interview because he had lost his car key.[39] The father was taken to paragraph 100 of the family report which suggested the father may benefit from meeting DR Z. He said that he had never doubted DR Z as being an appropriate professional but he explained his decision to go a different path as borne out of mistrust that the mother would act in X’s best interests. The father was taken to paragraph 61 of the family report which recorded the father telling the child expert that he may have sent unkind messages out of sheer frustration and anger. The father agreed he had said that but that his intention was not to be unkind.
[39] FR-42
On 7 January 2021 the father’s hair strand test recorded an alcohol level of “low to moderate consumption”.[40]
[40] N [44] & annexure “A”
On 1 February 2021,[41] DR Z described X’s issues/diagnoses as:-
(a)Autism spectrum disorder (ASD) : level 2 social communication and repetitive restrictive interests;
(b)ADHD;
(c)Anxiety disorder (generalised anxiety);
(d)Insomnia (sleep issues resolving with melatonin);
(e)Psychosocial stressors with family court proceedings and custody issues; and
(f)Academic difficulties.
[41] L1 [31] & annexure “B”
In principle both parties agreed with their son’s current diagnosis of ASD and ADHD and to a lesser degree, the father agreed that his son may have some social/anxiety issues although in summary he had not observed his son to show signs of these issues and I will return to the evidence about X’s signs of anxiety further in these reasons.
As part of X’s treatment, DR Z prescribed:-
(a)Ritalin (long acting dose) with an increased dosage;
(b)Intuniv; and
(c)Circadin (to be taken at night).
In addition in the same report, DR Z recorded X’s engagement with the following health professionals or interventions:-
(a)Speech Therapy at AG Centre;
(b)Psychological interventions with Ms AH;
(c)Occupational Therapy with Ms AJ at AK Centre;
(d)Placement in a special support class at S PS (Yr 3).[42]
[42] L1 [31] & annexure B
Again in the same document, DR Z also recorded her understanding that when X was at H PS, cognitive and learning assessments were conducted in mid-2020 and she requested that those reports be obtained to delineate his academic needs further noting that presently X is –
… just able to write his name and recognising only three letter words. He is not consistently able to recognise all the alphabets and letters signifying he may have a specific learning impairment.
Finally, DR Z then identified that X was showing aggression and behavioural issues earlier in the afternoon rather than the stimulants working for the whole eight hours (and increased the Ritalin). She then recorded that –
The father is in denial and has taken a long time accepting X’s diagnosis. Also with custody matters there are further issues and stressors in the family. I have had (sic) separate appointment with his father for counselling around regular medications and side effects profile. He was in agreement of the same.
During cross-examination of the mother about her relationship with her mother, Ms AL (‘Ms AL’), in about February 2021, she said that Ms AL had moved out of the unit beneath her. The mother said she had not spoken to her mother in over a year. MR D was cross‑examined about whether X has unsupervised time with Ms AL and replied “no”.
On 16 March 2021, the mother filed an application seeking interlocutory orders.
It was unclear from his evidence whether the father agreed with the timing of the incident but did acknowledge that on one occasion he had forgotten his son’s medication and had to go home and return to school to administer the medication to X.[43] From reading his evidence at paragraph 169 of the father’s affidavit it is apparent that the father is somewhat dismissive as to why the mother would have been concerned about the incident as he says that in any event, the medication was administered at 10 or 1030 ish. It seems lost on the father that if the medication regime is not strictly followed there may be adverse consequences, rather his focus is to query the mother’s motivations being about attacking him.
[43] N [169]
On 24 May 2021, following a defended interlocutory hearing, parenting orders were made for:-
(a)All existing parenting orders to be discharged.
(b)X to live with the mother.
(c)The mother to have sole parental responsibility.
(d)X to spend time with the father as follows:
(i)From 10.00am Saturday until 5.00pm Sunday each alternate weekend for 12 months; and
(ii)From 23 May 2022, from end of school Friday (or 5.00pm if a non-school day) until 5.00pm Sunday.
(e)Changeovers to occur at the McDonalds Restaurant at Suburb C noting that if the father does not arrive within 30 minutes of the scheduled start time, then X will not see his father that weekend.
(‘the May 2021 orders’).
At the time of the interim hearing, the mother said that the Judge had made some comments to the father about his verbal abuse of the mother, which the mother said included statements like:
·“you’re a whore”;
·“stupid bitch”.[44]
She said that as a result, the father has dramatically reduced his use of such language but that at times when the father becomes angry or upset (about things that do not necessarily involve the mother) he will impulsively resort to such language.[45] Another way he gets around swearing is to send text messages using the word “c***” instead of a swear word.
[44] L1 [25]
[45] L1 [26]
The father agreed that on 17 August 2021 he had been caught by NSW Police driving an unregistered car on a suspended driving licence. He said that he had challenged the suspended driving licence charge and was successful.
On 27 October 2021, the proceedings were listed for trial and at the time, the father’s solicitor withdrew.
In November 2021, exercising her sole parental responsibility, the mother changed X’s school from S PS back to H PS because he was being subjected to a lot of bullying and the staff did not stop it from occurring.[46] In her affidavit she set out the steps she had taken and the people she had conferred with before she made the decision.[47]
[46] L1 [28]
[47] L1 [29]
On 12 November 2021, the father sent the mother a text message complaining about her decision and his lack of involvement.[48] To be clear to the father, the May 2021 orders did not oblige the mother to consult with the father at all about the decision she made.
[48] L1 [29] & annexure “A”
In cross-examination, the mother described some of X’s behaviours and how those behaviours were being managed by staff at H PS. For example, she said that X gets anxious about crowds and waiting in line so between her and the staff, X now gets dropped off to the school office where his learning support person collects him and takes him straight into his classroom. It was evident from both her affidavit[49] and her answers in court that the mother was very happy with the level of care and support being offered to X at H PS.
[49] L1 [30], [32]
When the father questioned her about these same behaviours, it was apparent from his line of questioning that he had never observed X to exhibit any of these behaviours, citing as an example, why he was able to take X to something called “the family show” and/or “the Easter show”. Given the limitation implicit in the questions (the mother having not attended these same events and therefore not observing X), the mother responded by saying that the father’s observations could be a product of the therapies and medication working and/or the more likely explanation (in her mind) was that he must not be noticing the same things that everyone else does.
Late last year, Ms M had a baby girl, AM. At the time, Ms M was living alone below the mother’s home in the ground floor of the self-described “duplex”.[50]
[50] L1 [19]
At paragraph 27 of her trial affidavit, the mother recounted the conflict that occurred between the parties in December 2021 when the father approached her about changing the arrangements for him to spend time with X. In cross-examination she described the parties’ capacity to negotiate with words to the effect of –
“I can say the sky is blue and he will say it is green and go into detail about why”
The father agreed that due to him not being able to remember where he had parked his car after going to a friend’s house, the mother had offered to take him and X to his auntie’s house on Christmas Day 2021.
The father also agreed that having spotted the father trying to change a car tyre, MR D had stopped and provided him with assistance.
On 7 January 2022, MORAN filed a Notice of Address for Service.
On 5 February 2022, the mother recounted that the father had forgotten to give X his anti-anxiety medication during his visit with the father.[51]
[51] L1 [60]
The mother described with specificity the steps she took to make sure the father would remember to give X his medication including, on this occasion placing the half-tablet of Zactin in a plastic zip-lock bag and handing it to X as he walked towards the father’s home so that X can immediately hand the bag over to the father.[52] She said that in the past the father has frequently lost the medication or forgotten to give it to X.[53] The father denied there was a pattern of him forgetting or losing his son’s medication although he did recall that on one occasion the medication had been found in a McDonalds paper bag (and presumably was then administered).
[52] L1 [62]
[53] TW1 [62]
In February 2022, Ms M and AM moved out and now live in the adjoining suburb of S.[54] Ms M gave X a cockatiel and when she moved out, the cockatiel went with her. X and the mother visit Ms M quite often and the cockatiel will sit on X’s shoulder and on his head.[55] In cross-examination the mother said that X has had sleepovers at Ms M’s home and has coped well with the change in circumstances.
[54] L1 [20]
[55] L1 [23]
Between Sunday 10 April 2022 and Monday 11 April 2022 the parties engaged in a series of text messages as a result of the father wanting to extend X’s court-ordered time with him, which the mother would not agree with.[56] As part of the communications, the father was said things like –
….Your son is actually dying and distraught at not spending more time with his daddy but you won’t even do right by him this once…
…Ps you can only lie so long till the truth trips you…And the boy is smart he knows the score you continue to keep him away from me based on lies as a ongoing form of abuse and he will hate you … and even more when his old enough to understand what you done and how…and believe me that time will come…
I’ll keep those texts and show him when his old enough to understand and decide for himself how he feels about your actions.
[56] L2 [2], [3] & annexure A
The communications between the parties continued and at one stage the father accused the mother of managing to get Ms M raped twice. When asked about her reaction to the communications, the mother said she cried. Under cross-examination the father did not resile from his part in the communications, nor withdraw his allegations against the mother as set out within those communications.
After recounting the father’s own relief within his amended response to initiating application sought at paragraph 14 for the parties communicate in a polite and respectful manner, the father was asked about his part in the same series of text messages. The father acknowledged that he may have got a little overwhelmed at the time but did not resile from his accusation that the mother played some sort of indirect role in Ms M being sexually assaulted twice saying words to the effect that there are statements of facts, it did happen did it not?
As recorded earlier, on 27 April 2022 the trial was set to begin, but following the father’s adjournment application, the trial was adjourned to commence the following day.
At the start of the trial on 28 April 2022, counsel for the ICL gave a brief summary of the ICL’s most recent interview with X on 22 April 2022. In the performance of his duties,[57] the court was told information including that:-
·X liked playing Pokemon Go and games with his dad;
·X spoke about his pets;
·X would like “50/50”;
·X couldn’t say why he wanted equal time with each of his parents; and
·the ICL had difficulty maintaining eye contact with X during the interview.
[57] See s 68LA which explains the role of the ICL.
When asked about her son’s expressed view of wanting a “50/50” arrangement, the mother said that she does not accept that he understands what that would mean for him. She said that, as best as can be expected given the difficulties the father has with complying with his son’s medication regime, X is happy to go for one night.
In cross-examination, the mother said she is currently studying “allied health”, with a goal to facilitating art therapy classes for children with ASD and/or special needs. She has lived at the same address for three years and currently shares her home with X and T. She denied that MR D lived in her home for more than two nights a week.
In cross-examination the mother denied that she has been diagnosed with bipolar disorder.
The father challenged the mother about her denial of a bipolar diagnosis and tendered two medical documents of the mother from K Hospital produced on or about 20 April 2012 (just after the birth of X).[58] In summary, both exhibits identify that the mother has a medical mental health history of bipolar disorder and that she declined a Safe Start referral citing that she was coping well and had lived with bipolar long enough to know when she is ill.
[58] Exhibits “F3” and “F4”
The mother told the court that despite the May 2021 Orders and her own proposal, she would prefer that she be responsible for delivering and collecting X from the father’s home because:-
(a)she can then guarantee that the changeover will happen on time; and
(b)as X leaves her car and walks up to the father who is inside his home, she never has to engage with the father and knows that the medication is in her son’s hand to give directly to the father.
The father has been diagnosed with:-
(a)A medical condition;
(b)ADHD; and
(c)Anxiety.
The mother told the court that as best she could say, the father had been living in his current home for well over a year. There was no evidence of the father re-partnering. In cross‑examination, the father agreed that his transportation and accommodation had been disruptive in the past but expressed confidence that both were now stable. He denied that his backyard was ever overgrown and full of spiders (as the mother recorded X had told her[59]) but accepted that at times the yard had become sodden and there were fast growing plants within it.
[59] L1 [188]
When asked about her reaction to the father’s proposal for him to take X overseas to attend a wedding, the mother said that she was ‘scared, mortified that she may never see her son again.” The father explained that the wedding had been postponed to 2023 and that he presently held no passport but that his intention was to stay permanently in Australia. He confirmed that he is an Australian resident but not a citizen.
In cross-examination the mother said that she would be happy to relay information to the father about X’s medication but did not want him being able to liaise with X’s treating team because of his “radical ideas” and in her experience, he had “gone against” DR Z’s advice by denying that X had ASD, preferring a sole diagnosis of ADHD. In cross-examination, the mother was taken to paragraph 49 of the family report and agreed that the father’s views as recorded there about ADHD and ASD were consistent with her experience of the father. When asked if the father has asked her about ASD, she said “not really”.
The mother told the court that another strategy she now uses to try and support compliance with X’s medication regime is to give X a white plastic disposable cup with the medication in it so that when he walks up to the front door of the father’s house, X can give the cup directly to the father.
After being taken to paragraph 7 of the CIC, the mother agreed that in her experience, the father continued to have memory problems causing her to send him multiple text messages leading up to and on the day of X’s medical appointments.
It was common ground that the relationship between the father and MR D is amicable and friendly.
The father cross-examined the mother about her being the perpetrator of family violence upon MR D. At paragraph 47 of the family report, the father acknowledged he made a report to child protection about X telling him that he had seen his mother and MR D wrestling. In cross-examination the father was asked whether he had made a complaint to child protection about his concerns in the mother’s household and he said that he had spoken to a staff member from AN Family Services. As no business records were tendered either way, I cannot be sure whether the father was misquoted by the child expert or he has perhaps forgotten who exactly he complained to. There was no evidence that any further action was taken following the father’s complaint.
MR D was cross-examined by the father and denied there was family violence in the mother’s household or that the mother was a perpetrator of family violence. MR D also denied that he perpetrated family violence and when it was put to him by the father that X had told the father that he had seen the mother and MR D ‘wrestling on the floor’; MR D denied this had happened. MR D said that he, X and T all play-wrestled with each other and perhaps X had got confused in re-telling this activity to the father.
In cross-examination the father’s new proposal was explored and he told the Court that he had changed his position because he was –
“fearful that the mother would end up with X and there is violence…100% may God strike me down…1000,100000% believe that X is being exposed to family violence.”
It was put to him that the reason he had changed his position mid-stream was because he could see a logical inconsistency between his allegations against the mother and the relief he was seeking but that in fact, nothing new had been brought to his attention. The father replied that he knew of the inconsistency but had been acting on legal advice when he asked for equal time.
X is currently in year 4 at H PS. In cross-examination the mother agreed with the observations contained within paragraph 43 of the CIC that X’s communication and comprehension is below his biological age but said that he is “getting there” insofar as being able to read and complete his maths although he still has some difficulties. The father told the court that his son is improving but is still well behind where he should be.
X’s treating team consists of a psychologist, a speech therapist, an occupational therapist, a school chaplain and DR Z. X continues to take the medication regime as prescribed by DR Z and previously, as instructed by his allied health professionals, the mother also used flashcards at home to assist with X’s development. The mother told the court that for the most part, X’s appointments with the various members of his treating team are fortnightly within school hours and she is responsible for taking him and to and from these appointments. It was apparent from the evidence that X’s appointments with DR Z are less frequent.
The mother said that X’s current medication regime requires her to administer X with the following medications routinely:-
(a)Zactin – ½ tab 7.30pm (anti-anxiety mood stabiliser);
(b)Circadin – 7.30pm (melatonin for sleep difficulties);
(c)Ritalin – 6.30am (Monday to Friday).
In her affidavit, the mother explained that if X does not have his Zactin on time –
It has a lot of different bad effects on X including giving him headaches, making him irritable, sometimes making him nauseous and at times results in even more severe anxiety than before he was prescribed the medication.[60]
[60] L1 [68]
In his affidavit, it was clear that the father knew that he did not have to give X Ritalin on the weekend and that he knew this because the mother had told him.[61]
[61] N [119]
At paragraph 119 of his affidavit the father said that he “endeavoured” to give X the medication as prescribed. The language is curious. When it was put to him that he had lost the medication many times, he denied this. He denied making such an admission to the child expert as was recorded at paragraph 38 of the family report. The father was asked about whether he had ever forgotten to give X his medication, told the mother that he had a bad memory or challenged the mother about what she said she had told him already about the medication?[62] Save for one incident referred to earlier when he forget the medication, he denied the allegations.
[62] L1 [89], [90]
When it was put to the father that his life could be described as “chaotic” and characterised by being forgetful, the father said that it could “possibly be” he was under severe stress due to these proceedings.
The mother explained that the reasons why she wanted to change the current overnight period from Saturday to Friday was because:-
(a)it gave X a chance to fall back into his usual routine (including going to bed at an earlier time than what can happen when he stays up with the father) so that when he attends school on the Monday he is alert and ready to learn;
(b)as recently as March 2022, the school had expressed concerns to her that they could tell when X had spent the weekend with the father because of his behaviours on the Monday;[63]
(c)when X missed his medication it was very obvious from his behaviour on his return to her home, with for example, X being very aggressive, especially towards T and included behaviours such as yelling, pushing and hitting his younger brother leading to the mother engaging in strategies including restraining X or isolating him;[64]
(d)following on from that issue, once his medication regime resumed, it only took another couple of days and nights for his adverse behaviours to abate meaning that if X came home Saturday, she had Saturday and Sunday nights to get X back to a state where he could effectively attend school rather than being kept at home on the Monday.[65]
[63] L1 [74] – [76]
[64] L1 [71] – [72]
[65] L1 [77], [84]
When asked if he agreed that his son was a ‘high needs’ child’, the father said ‘he is and he isn’t’. He denied that when X gets stressed he can’t cope with him, saying that he gets on really well with him and that the Court had only to look at the family report to see how his son models or mirrors his father.
When asked about the impact on X if he was to live with the father as proposed by the father, the mother said it would “crush him”. The mother’s response was put to the father and he agreed that X would be crushed, just as much as X would be crushed if he did not see him. In his affidavit, the father described X’s relationship with T as tight.[66]
[66] N [187]
On 29 April 2022 the trial concluded and I reserved my decision.
THE FAMILY REPORT
The various interviews and observations for the family report occurred on 30 October 2020.
Within the family report, the child expert explored the parties’ competing allegations of family violence with the child expert reflecting that if it were accepted that the mother’s allegations of the father engaging in a pattern of family violence were made out, then this aligned with the mother’s past behaviours within relationships of protecting the perpetrator over the interests of her children.[67] This observation feeds into part of what I understood to be one aspect of the father’s argument about the mother’s household posing a risk to X.
[67] FR-68
Having noted that, I also noted that the mother does inform the child expert that on one occasion in 2011 she did contact the Police because of an incident involving the father and Ms M.[68]
[68] FR-69
In cross-examination, the mannerisms observed by the ICL when he recently spoke to X were put to the child expert who agreed they were consistent with her recollections of X’s presentation.[69] In the family report it was noted that due to his limited responses, X was not the subject of a formal interview. [70]
[69] FR-80
[70] FR-80
The child expert recorded the father to say that from his perspective most of X’s problems stemmed from the ADHD diagnosis and admitted he knew little to nothing about ASD.[71] When asked to review paragraph 31 of the family report, the child expert confirmed what she had recorded, namely that a further issue of concern for her was the father disputing X’s primary diagnosis and that the father did not regularly administer X’s medication. When challenged about this, the child expert said she could clearly recall the father being annoyed that the mother had beaten him to it by taking X to DR Z first.
[71] FR-49
The child expert confirmed that the father had been late for his interview citing he had lost his keys. The child expert was challenged about this and did not resile from how she described the father’s presentation, which mentioned the lost keys as well as –
42. …At this assessment, the father appeared nervous, and his narrative was disorganised and often contradictory. He would be adamant about his account of events, but often when challenged he would suddenly recall a different chain of events, and then would proceed to deliver these new acts in minute detail. He became quickly agitated if he was interrupted or cut short. He clutched hold of his car keys throughout the interview.
As one example of the father’s divergent views, I have set out below paragraph 46 of the family report –
46.The father denied the mother’s allegation that his lifestyle and accommodation had been erratic. He said he had never squatted and had never lived out of his car as the mother had reported. Initially he was adamant that there had never been a period where he had been unable to take X due to accommodation issues. The father then reconsidered his information saying there might have been, “temporary periods”, of two or three weeks where he was unable to take X due to lack of stable accommodation.
The child expert was taken to paragraph 64 of family report and stated that once a child is diagnosed, that should be ‘the end of the story’.
The child expert confirmed that during his interview the father had denied that his ADHD diagnosis affected his memory.[72] The child expert confirmed her observations at paragraph 53 of the family report which included that whilst the father denied he had experienced problems with memory and disorganisation, his presentation at interview was inconsistent with his perceptions. This opinion is backed up by the contents of the family report including the father being late because he couldn’t find his car keys[73] and the father being on the one hand critical of the mother for letting X fall behind academically yet when asked what that looked like and what his son’s actual performance was, the father was not sure.[74] Particularly in the context of the father wanting X to live in a week-about regime (which was the primary relief he sought at the time of the interviews) it seemed incongruent that he was not better prepared to support his own case regarding the mother’s alleged lack of capacity to meet X’s educational needs.
[72] FR-48
[73] FR-42
[74] FR-52
An explanation of the mother’s proposal to move the fortnightly visit between father and son to a Friday night was given to the child expert and she said that it made sense. The child expert reflected on her recommendation that there be an increase of time from one to two nights per fortnight. She said that she could only support that increase if the father accepted the diagnoses and had the capacity to follow X’s treatment plan.
In the context of both parties agreeing that X would be ‘crushed’ if he moved from living with the mother (and spending one night a fortnight with the father) to at least initially living with the father (and spending only one night a fortnight with the mother), the child expert said she could not support the father’s proposal.
The child expert agreed that X has a good relationship with his father and indeed paragraphs 92 and 93 of the family report paint a picture of two persons at ease and comfortable in each other’s company. The same can be said of how X is recorded as engaging with his mother.[75]
[75] FR-91
During the course of her report, the child expert said in summary that given X’s complex diagnosis what he needs is –
96. …patient, consistent, daily living support if he is to reach his full developmental and educational capacity. He will need daily support from his parents/carers to practice and implement skills learned through therapy to improve his educational, functional, and social/emotional development. X’s diagnosis means his parents must trust and rely on health professionals and specialists to guide them around what is best for X.
The only significant change to X’s diagnosis between when the family report was prepared and now, is that he has been diagnosed with insomnia.
The child expert expressed extreme concern that the father’s attitude towards administering X’s medication was that he preferred relying on his own mental health experience and personal discretion.[76] The basis for her concerns are clearly articulated within the family report and despite some limited cross-examination from the father, she stood by her assessment of his attitude about compliance.
[76] FR-97
On a background of business records that support the mother’s concerns around the father’s short term memory, and noting the father’s concessions to the child expert about this issue, the child expert said that X would more likely benefit from time with the father that is of shorter duration and activity focused.[77] The family report also supported additional mid-week afternoon time between father and son, as well as some time on special occasions, albeit as recorded earlier, the child expert now preferred the mother’s proposal of continuing the existing one night per fortnight but moving it forward to Fridays.
[77] FR-99
Consistent with this evidence, the child expert was clear to say that the mother should have sole parental responsibility not least because the mother was supportive of the child’s existing treatment plan, diagnoses and engagement with allied health professionals. The child expert did not support equal shared parental responsibility because of the parties’ inability to communicate and the pattern of unilateral decision-making and actions that had been a feature at the time of the interviews.
THE APPLICABLE LAW
In these proceedings, the parties invite me to make a “parenting order” (s 64B) which I can, provided I think it is “proper” (s 65D) to do so in light of the objects of the Family Law Act 1975 (Cth) and the underpinning principles of those objects (s 60B).
Any orders I make about a child must be orders determined by treating their best interests as the paramount consideration and ss 60CC (2) and (3) set out the matters to which I must have regard to in doing so. This consideration of the child’s best interests is also mandated within s 65DAA, to which I shall return.
In Aldridge & Keaton [2009] FamCAFC 229 at [75], the Full Court said this –
75. While there can be no doubt that the amending Act has placed greater emphasis on the role of both parents in the upbringing of their children, as we are presently advised, all applications for parenting orders remain to be determined with the particular child's best interests as the paramount but not sole determinant. Our reasons for upholding this view include the following matters:
• the unaltered provision dealing with best interests (s 60CA) and the positioning of the section in the Act;
• the recognition in s 65D(1) that ultimately a court should make such parenting order as it thinks proper; and
• that no provision was included in the Act suggesting greater or lesser weight should be given to any particular applicant.
…
79. In summary, in dealing with any parenting application by a person interested in the care, welfare or development of a child, a court will determine that application applying the relevant provisions of Part VII to determine whether making (or not making) a parenting order would be in the child's best interests.
The legislation makes clear that s 60CC(2)(a) is not intended to elevate the paramount consideration, as to the benefit of a meaningful relationship for the benefit of the parent, but rather it is for the benefit of the child. For example, see the preamble within s 60B which specifies that the specified objects of Part VII are to ensure that the best interests of children are met.
In Mazorski & Albright [2007] FamCA 520 Brown J had to determine an interstate relocation case where the subject child was just over two years of age. At paragraph [26], Her Honour said this –
26. What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
(my emphasis)
Put another way, s 60CC(2)(a) does not invite a Court to act on an artificial view that any circumstance which would increase a parent’s involvement with a child must be in that child’s best interests. It may be that to do so would simply increase the child’s potential (if not real) exposure to parental conflict between two people they may love and for whom the child would have adverse feelings including sadness, distress or anger by seeing one parent upset, angry or frustrated by actions or decisions taken by the other parent for whom they share similar feelings. Conversely, a reduction to time does not necessarily mean a reduction in the meaningful relationship between a child and a parent.
The other paramount consideration (which takes precedence over the benefit to the child arising from a meaningful relationship with parents) is the need to protect a child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)). The ambit of this paramount consideration is affected by the definitions of “abuse” and “family violence” (ss 4 and 4AB).
Section 4AB(1) says that “family violence” is behaviour that is violent, threatening or otherwise coerces or controls a member of the perpetrator’s family or causes a family member to be fearful. A non-exhaustive list of behaviours that may constitute family violence is set out at s 4AB(2). Section 4AB(3) extends the operation of the definition such that if a child sees or hears family violence or otherwise experiences the effects of family violence then the child is considered to have been “exposed” to it.
In protecting a child from the harm identified at s 60CC(2)(b), the Court has considered whether the child would be placed at “unacceptable risk” which was explored by the High Court in M v M (1988) 166 CLR 69 (in the context of allegations of sexual abuse). There the High Court said that the task is not to determine the veracity of the allegation in the manner required in the criminal jurisdiction, but rather to treat the best interests of the child as the paramount consideration and in the context of a parenting order, this means that an Order should not be made about the child’s living arrangements that would expose the child to an unacceptable risk of harm.
In Johnson and Page [2007] FamCA 1235, the Full Court endorsed comments made by the Hon John Fogarty AM as follows:-
68. In his recent paper entitled ‘Unacceptable risk – A return to basics’ the Hon. John Fogarty A.M. set out his summary of the principles emerging from M and M as follows:
1 The decisive issue is and always remains the best interests of that child. All other issues are subservient.
2 The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3 Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4 The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5 The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6 The onus of proof in reaching that conclusion is the ordinary civil standard.
7 But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
and thereafter expanded some points contained in the summary.
69. Relevantly for the issues raised in this appeal, he noted that rather than referring to “the Briginshaw test” it was now more appropriate to refer to s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”). Section 140 provides as follows:
Section 140
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
In summary then, when assessing the “protective” paramount consideration, Johnson and Page says that in assessing what is an ‘unacceptable risk’ I need to evaluate:-
(a)the nature and degree of the risk; and
(b)whether, with or without safeguards, it is acceptable.
Whenever the Court is asked to make a parenting order (even in circumstances where there is no contest about the allocation of parental responsibility), the Court is required to apply a rebuttable presumption that it is in a child’s best interests for the parents to have equal shared parental responsibility (s 61DA). Section 61B defines “parental responsibility” as encompassing all duties, powers, responsibilities and authority conferred by law upon parents.
Where certain circumstances are made out, the presumption of equal shared parental responsibility does not apply, including for example instances of child abuse and family violence (s 61DA(2)). If the court finds that it is not in a child’s best interests for the parents to have equal shared parental responsibility then the presumption can be rebutted (s 61DA(4)). The presumption does not speak to the periods of time that a child should either live or spend with their parents, however how parental responsibility for a child is allocated by the Court may have a bearing on these issues.
Where an order allocates equal shared parental responsibility to a child’s parents, then the Court is obliged to consider both whether it is advisable and reasonably practicable for a child to live equally with each of their parents, or alternatively, to live with one parent and spend “substantial and significant time” with the other parent (s 65DAA).
EVALUATION OF THE EVIDENCE - section 60CC
Section 60CC(2)
Section 60CC(2)(a) mandates that I consider the benefit of X having a meaningful relationship with both his parents.
In submissions, there was no dispute between the parties that X has and would benefit from continuing to have a meaningful relationship with his parents. This was evident, if nothing else, from the child expert’s observations of X during the family report interview process[78], which were not the subject of challenge by any of the parties.
[78] FR-91 to FR-93
Relevant to a consideration of s 60CC(2)(b), I heard no submissions from either the mother or the ICL about the father posing an unacceptable risk of harm to X arising from family violence, abuse or neglect.
Arising from his submissions, it was apparent that the father urged the Court to make a finding that the mother posed an unacceptable risk of harm to X because of family violence arising from her being a perpetrator, both historically and currently. It remained unclear whether the father also asserted that the mother posed an unacceptable risk of harm because of her inability to protect X from exposure to family violence. Albeit this was an issue canvassed within the family report.[79]
[79] FR-68
As identified in Johnson and Page, I need to assess the nature and degree of the risk and whether, with or without safeguards, it is acceptable. In reaching any conclusion - I should rely on s 140 of the Evidence Act 1995 (Cth).
It is common ground that no family violence orders have been taken out or currently exist in relation to the parties and/or to X.
I have carefully reviewed the relevant business record/s tendered by the parties and the mother’s evidence insofar as they relate to her relationship/s before she met the father. The business records point to one specific incident in 2003[80] but the author is unknown and the outcome of any DCJ investigation is unclear. The mother gave no evidence of the incident save to say that during their relationship, she was the victim and Ms M’s father was the perpetrator.
[80] Exhibit”F8”
I have carefully reviewed the relevant business record/s tendered by the parties and the parties’ competing evidence about family violence that may have occurred during their relationship. To the extent that she could during the family report process, the child expert also considered this issue.[81] The child expert said that there were no police or child protection reports regarding X and either party but she also had the benefit of hearing from Ms M.[82]
[81] See for example FR-67 to FR-73
[82] FR-57, 58 & 98
The father took me to a business record produced by the K Hospital at about the time of X’s birth which recorded there being no ‘DV’ identified.[83]
[83] Exhibits “F4”
In the context of there appearing to be some controversy over the actual date of separation, both parties agreed that at that time, the father left the family home and returned with the Police. The circumstances about what happened that day and/or why the Police had to escort the father back into the home to collect his belongings continues to be a source of controversy between them. Similarly, the mother emphatically denied being a perpetrator of family violence upon the father as did the father when he was asked questions about it.
I have carefully reviewed the relevant business record/s tendered by the parties and the parties’ competing evidence about family violence that may have occurred between the mother and MR D. From the father’s perspective, his evidence largely arises from words expressed by his son about seeing his mother and MR D interacting with each other. The mother and MR D were robustly cross-examined by the father and they both denied any family violence in their household.
In case the father was submitting that the mother posed an unacceptable risk of harm by failing to act protectively to quarantine X from family violence I have also considered the concern raised at paragraph 68 of the family report as well as the mother’s evidence of making a report to the Police in 2011. I have had regard to the father’s questioning of the mother about her decision to allow MR D to live in their household (noting there is a dispute about the duration/frequency of those visits). The mother denied that the children had been exposed to family violence in her relationship with MR D but acknowledge that Ms M’s father had been a perpetrator of family violence.
There were no relevant business records about incidents of family violence involving the mother post-separation. As referred to earlier, the father seemed to be relying on what his son had told him, including about a wrestling event (which was denied).
The child expert made no specific findings of family violence within the family report although she does make comment about the father’s propensity to react with ‘violent aggression’.[84]
[84] FR-98
I have considered the nature and degree of the risk posed by the mother and whether with or without safeguards, it is acceptable. In reaching any conclusion, I have relied on s 140 of the Evidence Act 1995 (Cth).
X has lived with his mother since he was born. He has been the subject of enquiries, appointments and assessments by multiple educational, medical and allied health professionals about his behaviours. Not one document has been produced to the Court raising any concerns about X’s exposure to family violence. Similarly, save for one contact with DCJ over 18 years ago, there are no Police records in evidence raising issues of family violence perpetrated by the mother. It is common ground that the Police were called-out at the time of separation in 2012 but the reasons why are in dispute.
Having extensively considered the family’s circumstances, the family report gives no opinion about the mother posing an unacceptable risk of harm but does touch on a possible concern regarding the mother’s capacity to act protectively.
Similarly, there is no eyewitness evidence or business records tendered that raise issues of X having been exposed to family violence in his current household or any other household. Ten years have gone by since these parties separated without any adverse incidents.
The state of the competing evidence (and in particular the lack of any business records to support either party’s contentions) does not permit me to make any finding that the mother poses an unacceptable risk of harm to X as a result of family violence.
Turning then to the additional considerations at s 60CC(3), and based on the evidence referred to earlier in these reasons or otherwise set out below, I make the following findings.
Section 60CC(3)(a)
X presented to the child expert as a reserved and cautious child and that assessment appears largely consistent with X’s presentation as observed by the ICL in April 2022. One improvement in his development was that in 2022, X was prepared to engage in dialogue and give a view whereas his limited responses in 2020, caused the child expert not to conduct a formal interview with him.
In April 2022, X told the ICL that he would like “50/50” but he could not say why that was. The mother discounted X’s views because she says he wouldn’t understand the implications of what he was saying.
X is 10 years of age and on any view he is a vulnerable child with a complex diagnoses affecting his behaviours, his moods and his capacity to comprehend. Save for perhaps issues around his varying levels of anxiety, the evidence was that these conditions were permanent.
Having heard from the child expert and reflecting on the evidence, I have given limited weight to X’s views because in my view, his diagnoses means he cannot rationally consider the ramifications of parenting concepts like ‘50/50’ and what that would mean when his entire life has been spent in the primary care of his mother. It may be that X’s expression reflects the strength of his relationship with both parents, but without further expert evidence I cannot take this any further.
Section 60CC(3)(b)
Both parties agreed that X would be “crushed” if he was to live with his father and spend one night a fortnight with the mother - being the father’s initial proposal until certain steps were completed by the mother.
There is no dispute that X has a close and loving relationship with both his parents. X has lived with the mother since he was a baby and although there was a period when he spent substantial and significant time with the father (from about 2016 until May 2021), he has always been primarily cared for by the mother. For these reasons, I find that X’s primary attachment relationship is with the mother.
T, MR D and Ms M were not observed with X. The father must accept that X has a warm relationship with T because his reasons for wanting an equal‑time arrangement in the medium term included that he wanted X to be able to spend a lot of time with T because he described the relationship as ‘tight’. I am satisfied that X has a close relationship with T and given the lack of submissions, I make no other findings about his relationship with MR D and Ms M.
Section 60CC(3)(c)
I heard no particularly compelling submissions about this consideration. It was apparent to me that in more recent times both parties have prosecuted their own agendas to try and meet the developmental and behavioural needs of X and that certainly since filing his response the father has wanted an increase in the time he spends with his son.
Section 60CC(3)(d)
The mother sought a continuation of the existing arrangement whereby she exercises sole parental responsibility for X who would continue to spend one night a fortnight with his father. She also had no issue with additional time being specified for special occasions and for her to give the father certain information about their son. She proposed that the current informal arrangement for changeovers continue by way of order.
The father sought dramatic and significant changes which he agreed would ‘crush’ X because he would go from living with his mother to (in the short term) living with the father. In tandem with this change, the father sought that the parties have equal shared parental responsibility and that X see his mother for one overnight per week. Once the mother had taken certain steps to ameliorate the risks that the father perceived in her, then X should live equally between the two households and have half school holidays with both of his parents. In addition, the father sought to take X overseas for 21 days in 2023, as well as various restraints and orders that are ancillary to the exercise of parental responsibility.
The child expert supported sole parental responsibility to the mother, X to remain living with the mother and that he spend each alternate Friday night with the father. This was a change from her position as recorded within the family report and arose as a result of cross‑examination about the continuing experience of the mother when X would return home from his father on a Sunday and then be difficult to regulate in time for school the next morning.
Specifically as regards X’s diagnoses, a summary of what the child expert opined he needed was a consistent routine through all his activities of daily living with parents who trust his health professionals and will comply with their son’s medical treatment plan.[85]
[85] See for example, FR-96
There was no evidence to suggest the mother provides anything but this type of lived experience for her son. Since separation when he was a baby, he has always lived with her and her accommodation has been stable, albeit Ms M has moved in and out at times; and MR D does not live there permanently. The mother has been largely responsible for liaising with her son’s medical, educational and allied health professionals. She has been responsible for filling his prescriptions (much to the chagrin of the father) and there was no evidence that she had ever failed to administer X’s medication as necessary.
The ICL and the mother submitted that the father’s circumstances were and remain chaotic. In 2018 the father had told DR G about his chaotic circumstances including that he was facing eviction and remained forgetful and disorganised. This was after having an assessment with MR U in 2016 which resulted in changes to his medication. Fast forward to more recent times and whilst his accommodation appears stable, it was common ground that the mother now does the drop-offs and pick-ups to the father’s house and on Christmas Day, she had taken him and X to see his auntie because he couldn’t remember where he had parked his car after visiting a friend. The father said he would prefer the changeover resume at McDonalds Restaurant Suburb C but gave no evidence of any difficulties with the current informal arrangement continuing.
The mother’s other contention was about the father’s ability to maintain a routine which self‑evidently, from an acceptance of the child expert’s opinion referred to above, would be necessary to enable X to reach his full potential. For her part, the mother’s ability to do this is tested and known and was not the subject of any persuasive criticism. The father has never had X live with him full-time or indeed for a significant number of consecutive nights during the school week. The father is completely untested and his proposal of equal time was discounted by the child expert and by the ICL, both of whom are independent of the parental conflict.
Reflecting on all the evidence if X’s current circumstances were significantly changed, irrespective of how short or long the duration may be, X would grieve the loss of his mother and this would be unchanged even if ultimately he lived equally between his parents. My reasons include that:-
(a)X is a vulnerable child with complex medical, behavioural and learning needs that require consistency;
(b)the mother is X’s primary attachment figure;
(c)X has a close and loving relationship with both parties; and
(d)X would be crushed if he did not live with the mother.
Section 60CC(3)(e)
It was uncontroversial that at times the father has struggled with transportation. Weighing up both parties’ evidence, I am satisfied that the mother has been willing to help the father with changeovers so that they occur in a timely fashion rather than having to expose X to the uncertainty that comes when the father is late.
Section 60CC(3)(f)
There was no persuasive evidence or submissions about the mother lacking the capacity to meet X’s needs.
The family report identified that whilst the father appeared focused on X’s need to improve academically, the mother’s focus (supported by the collateral information) was more properly focused on helping him to manage his violent behaviours towards peers and staff to avoid him being expelled.[86] Ultimately, the mother decided, after much investigation, to return X to H PS late last year[87] where his previous adverse behaviours have diminished. Examples of this appeared to be partly because of his ongoing involvement with his medical and allied health treating team (as stated during cross-examination when for example the mother talked about how X may be coping better with crowds in the father’s care) but also because the school is better equipped to support his needs.[88] In my view, the father’s objection to the mother’s decision to move X demonstrated just how out of touch he is about his child’s needs.
[86] FR-97
[87] L1 [28] – [30] & [31]
[88] L1 [32]
Dealing with the issue of the mother’s mental health, as would be obvious from my recording of the evidence earlier, there is no diagnosis of the mother having bipolar disorder and conflicting hospital entries about what the mother may have said in response to certain questions. The father became quite animated about this topic and I wish to be clear to him that just because a person may or may not have a diagnosis of a mental health disorder or issue, is not the end of the court’s consideration. What the court is focused on is how any behaviours attributed to a person may affect such considerations as their ability to promote a meaningful relationship with another parent, any risk issues they may pose to a child and their capacity to meet the needs of a child, their attitude towards parenthood and the child.
The father also sought to question the mother’s capacity to protect X from Ms AL. There was no evidence to support his assertion that Ms AL posed a risk to X and in that regard I have accepted the evidence of the mother and MR D.
The father sought to diminish the mother’s capacity to protect X by raising events in Ms M’s past. There was not one single shred of evidence to support whatever assertion he was trying to make against the mother that somehow could be tied to her capacity to protect X. His willingness to prosecute this assertion in the absence of any evidence to support it was an indictment on his attitude, and not the mother’s capacity.
The child expert did not raise any concerns about the mother’s mental health and the mother rejected the father’s assertions about her diagnosis. In the absence of any compelling evidence addressing the father’s allegations on this issue, I am unable to make an adverse finding against the mother.
The father says that he has capacity and relies on his past experience in caring for X and making decisions about him, the stability of his current accommodation and transportation and his compliance with his medication regime and that of his son’s. Whilst there is much to be said about his submissions, the reality is that he is untested in the circumstances he proposes the Court should make on a final basis as they relate to the time X would be in his care. Another concern with his submissions is that even as late as August last year he was caught by NSW Police whilst driving an unregistered car and needed assistance from the mother to help transport X around on Christmas Day 2021. The father also relied upon Ms E’s unsigned statement of support but given it was written over two years ago I have placed limited weight on the document.
The mother’s concerns about the father’s capacity to meet X’s needs were compelling.
The father agreed that at times his backyard was less than an ideal place for X because at times it was sodden and there was a plant that grew very quickly. The father agreed that his bathtub had been messy due to him giving X a ‘jelly bath’[89] which had stained the bath for a while.
[89] N [127]
Even if I ignore the mother’s allegations about her providing X (and at times the father) with food given that he disputed this. I am to infer that there must have been times that X has gone to school without sufficient food because the father told the court that he had a backup plan with the school canteen whereby X could ask for and pay for food. From the father’s evidence and his manner of cross-examination, I was not reassured that this risk had diminished because he continued to reject that he had ever forgotten to feed his son, instead blaming X for telling people he is hungry so that he can get takeaway food instead. This is a significant issue given that part of the father’s relief is for his son to spend extended periods of time with him outside of school hours (including overseas) and X being a cautious and reserved child (who has difficulty in social settings) may not be able to express his needs to strangers with whom he is unfamiliar.
Insofar as being capable of meeting X’s intellectual needs, the father did not give any compelling evidence of what steps he has taken to assist X with his learning, save for him obtaining the AF University assessment. In his affidavit, the father complained about the mother’s ‘educational neglect’[90] but the child expert viewed all the available subpoenaed material including from both schools and raised no such concerns. Until the May 2021 orders were made, both parents could exercise parental responsibility and yet, save for the AF University assessment, there was no practical persuasive evidence before the Court about what steps the father had taken to help his son academically.
[90] N [183]
The ICL is independent of the parental conflict and made no submissions nor tendered any more recent material that would support the father’s contentions. The father didn’t tender any relevant business records either.
As to the father’s capacity to meet his son’s emotional needs I am concerned that his capacity to overreact when things don’t go his way may mean that he will say things to or in the presence of X that will cause X distress (even if this is inadvertent and/or unintentional). By way of example, the father agreed in cross-examination that due to the stress of the proceedings he had sent text messages to the mother that were disrespectful but said that it was not his intention to be ‘unkind’. In the family report, the child expert raised concerns about the father’s history of volatile behaviours[91] some of which were explored in cross-examination of the father and for which the father had an excuse which did not demonstrate any compelling self-reflection at all. One example of this was his response to why the Police were called by staff at AK Centre in October 2020 which he explained as not being because he was intoxicated but because he was distressed. He outright rejected another occasion when he was described as ‘agitated’ by a school staff member as a result of him being unhappy with staff for not filling out a form for DR AE.
[91] FR-98
I was left concerned that if X inadvertently does something to upset the father (which is more likely to given his vulnerabilities and there being an inherent correlation to the extension of time that he would be spending with the father under the father’s proposal), then the father may not be able to appropriately regulate his response. Given X’s vulnerabilities this is not a risk that I would easily contemplate as meeting X’s best interests.
I accept the father’s evidence about his role in obtaining support for X through the engagement of psychologist Mr Y and his follow-through on the AF University assessment. However I remain perplexed about whether I should accept the father’s written and oral evidence that he is ‘on-board’ and able to support X’s diagnoses and medical treatment plan. The reasons why I remain concerned are summarised below:-
(a)In October 2020, the child expert recorded (and I accept) the father’s unwillingness to fully accept X’s diagnosis of ASD and his relaxed attitude towards giving X his prescribed medication.[92]
(b)In February 2021, DR Z reported that the father was in denial and has taken a long time accepting X’s diagnosis (which included a diagnosis of general anxiety disorder). DR Z acknowledged that she had spoken separately to the father for counselling around regular medications and side effects profile. He was in agreement with same.
(c)Despite DR Z’s report, the father’s evidence and/or cross-examination did not wholeheartedly embrace X’s diagnosis of anxiety but appeared to minimise this diagnosis by accepting that his son may have some social/anxiety issues. He appeared to reject the mother’s oral evidence about how their son does not like crowded areas (such as school grounds) or queues (such as waiting in lines to go into classrooms). The father said that he does not see these behaviours during the time he has with X. His attitude is of concern because X has been prescribed Zactin to treat his anxiety diagnosis.
(d)The ICL made a submission that during the course of the trial the father had referred to DR Z as ‘the mother’s paediatrician’ instead of referring to her as ‘X’s paediatrician’.
(e)Despite the contents of the family report, the father tells the court that he still has somewhat limited information about ASD because his lived experience is with ADHD.
[92] FR-97
In addition to the above reasons, the father’s forgetfulness, particularly insofar as his capacity to comply with X’s medical treatment plan was significant. The father made an admission that on one occasion he forgot X’s medication after delivering him to school and had to go back home and then return to the school to administer the medication. He also gave some evidence about misplacing X’s medication which he says the mother put into a McDonalds Restaurant paper bag.
The mother gave a raft of examples of the father forgetting to give X his medication and the adverse behavioural issues that she has been confronted with on the Sunday when he returns home, which result in (for example) her having to isolate X away from his younger brother T. Some but not all of these were challenged by the father and when that occurred she confirmed her written evidence. I have accepted her evidence because at no stage during the conduct of her case did she (through her counsel) show any malice in the line of questioning of the father and her recent actions to help him and X with transport (despite it no doubt inconveniencing her) demonstrate she means no ill-will towards the father.
Further, in support of her contention, she referred me to the father’s medical records which in summary show that between December 2016 and 2018[93] the father’s forgetfulness was recorded and then in the family report this issue continued to feature.
[93] See FR-78 and my previous references to the father’s medical records dated 5 March 2018 and 7 May 2018
From the father’s perspective he asked me to prefer exhibit “ICL4” being a record that the father scored 30/30 for a mini mental state examination on 15 June 2021 with no evidence of cognitive impairment. I note that it is apparent from the other evidence in this matter that DR G (the author of “ICL4”) has been a treater of the father’s for years and so has some knowledge of his patient, rather than being a stranger to the father’s medical history.
However, some six months later than DR G’s certificate, the father told the court that he could not remember where he had parked his car which prompted the mother to take him and X to a relative’s home on Christmas Day.
In combination with the multitude of other historical medical records relied upon by the mother, the evidence of the child expert and her anecdotal evidence about her observations of the father’s difficulties with remembering to give X his medication and her practical efforts to try and ensure he doesn’t,[94] I am satisfied that the father does experience difficulties with remembering to give X his medication as prescribed.
[94] See for example her evidence of handing to X zip-lock bags or plastic cups containing the medication
To be clear to the parties, and because the authors were not called for cross-examination (and he disputed what had been recorded by them or from them), I have given no weight to both his alleged admission of forgetfulness as recorded in the CIC and what the school staff are reported to have said to the mother as contained within both her affidavits. I am however satisfied, that the business records produced by independent third parties carry significant weight in the context that they are bipartisan contemporaneous records of what they observed on the occasion in question.
Whilst the father’s alcohol intake was explored, the lack of recent business records the lack of admissions from the father caused me not to be satisfied that his consumption affects his capacity.
In view of the above, and weighing up all the evidence, I am satisfied that the father has an impaired capacity to care for X’s needs.
Section 60CC(3)(h)
Although X has Aboriginal heritage on his mother’s side, this consideration was not traversed by any of the parties.
Section 60CC(3)(i)
The evidence overwhelming supported that the mother has a good attitude towards her responsibilities towards X (and by extension Ms M whom the father suggested I make a contrary finding) and to parenthood generally. A lot of the findings I have already made support this finding but the most recent examples of this in action are her decisions to offer to transport X to and from his father’s home to make sure there is no delay in him spending time with his father and to take the father and X to spend time with an auntie on Christmas Day. X’s experience of this would have been that his mother was working co-operatively with his father for X’s benefit.
On the other hand, the father took X to see Dr AE despite being aware of DR Z’s engagement, has continued to make disparaging accusations about her historical care of Ms M and has continued to criticise her for decisions she has made about X’s schooling. On this last point I observe that the May 2021 orders gave the mother the legal authority to do so, and her evidence clearly showed her holding multiple interviews with various professionals to try and help their son’s lived experience of schooling.
The text message communications between the parties as annexed to the mother’s two affidavits show the parents being unable to negotiate in a respectful way. In the most recent tranche of text messages, the father’s disdain for the mother’s motivation in not giving him more time than ordered, was clearly on display. As recorded earlier, the father accepted his role in the communication but said it was not his intention to be unkind. A reading of page 16 of 19 of the mother’s second affidavit (where the father speaks of the difficulties with Ms M) leaves open a finding that either –
(a)the father has poor emotional regulation (if he didn’t mean his words to be unkind); or
(b)the father is lying and meant every word of it, demonstrating he has no insight into the mother’s capacity to be a good and protective parent.
For the reasons above, I am satisfied that the father has a poor attitude to his responsibilities as a parent because of his past decision to engage an alternative paediatrician without notice to the mother, his inability to communicate with the mother about negotiating parenting issues in a respectful way and his criticism of her decision to return X to H PS late last year.
Section 60CC(3) (j), (k)
There have been and are no family violence orders.
I have already discussed this topic and do not intend to explore it further here.
For the reasons above, I am unwilling to make any adverse findings about these considerations.
I now need to consider whether equal time or substantial and significant time is in the children’s best interests.
CONCLUSION – PARENTAL RESPONSIBILITY
Pursuant to s 61DA when asked to make a parenting order, I am required to apply a presumption that it is in a child’s best interests that the parents have equal shared parental responsibility, absent a finding that one of the parents has engaged in abuse of the child, family violence or it is not otherwise in a child’s best interests.
The father sought the allocation of equal shared parental responsibility. The mother sought that she be allocated sole parental responsibility.
The child expert supported the mother retaining the sole parental responsibility which the mother has had vested in her by way of an interlocutory order within the May 2021 orders.
I have made no findings about family violence or child abuse. Historically (and more recently) there has been poor communication between the parties. The mother has taken on a significant role in engaging with X’s medical, allied health and educational supports (particularly in his recent transition back to H PS). The mother has been the person who has managed X’s varying prescriptions. I note the attitude the father has about the mother’s ability as a parent towards Ms M which I find to be unfounded and hurtful. Self-evidently to order that these parties make joint decisions about major long-term issues for X will only invite more upset and conflict between them, to which X may deliberately or accidentally be exposed. This exposure would not be in his best interests, and has already caused him to be unnecessarily assessed by an alternative paediatrician. For the above reasons, I am satisfied that it is in X’s best interests that the mother have sole parental responsibility for him.
The mother sought orders to support the father being kept informed about certain issues related to X and I am satisfied that these will be sufficient to ensure the father has the opportunity to support his son’s many and varied needs. To support her role and to ensure that the relevant third parties understand her responsibilities, I have permitted to provide a copy of the orders to the relevant third parties who provide services to and/or support X.
CONCLUSION – CARE ARRANGEMENTS
As there will be no order for equal shared parental responsibility I am not required to consider s 65DAA but must determine parenting orders for X in accordance with his best interests.
A summary of the child expert’s written and oral evidence was that an equal time arrangement (being part of the proposal from the father) would not be in X’s best interests because the parents cannot offer X a consistent and co-operative approach to his daily living support and implementation of his medical treatment regime.[95] I accept the child expert’s views which are consistent with the proposal of the mother (which is supported by the ICL). This is informed in part by the findings that:-
(a)the parties’ are unable to negotiate issues in dispute in a respectful and co-operative manner; [96]
(b)the father’s impaired capacity to support X’s physical and medical needs;
(c)the father’s poor attitude towards the responsibilities of parenthood; and
(d)the impact on X of such a sudden change in his circumstances would be devastating.
[95] In addition to her cross examination see FR-96 and 97
[96] See for example my recording of the mother saying that if she said the sky was blue, the father would say it was green and then tell her why
It is common ground that X would be ‘crushed’ if he did not live with the mother. He is a vulnerable child with a complex diagnoses who thrives on consistency. He has always lived with the mother since he was a baby (when the parties separated). I have carefully considered the parties’ common view about the impact for X should his lived experience change.
The mother does not pose an unacceptable risk of harm to X and I have found by her recent actions that she is supportive of X’s relationship with the father.
For all these reasons I am satisfied that X should live with the mother.
Turning then to the time that X should spend with the father, I propose that X’s existing lived experience continue with a few tweaks. This is because -
(a)Despite a diminution in the time that X spends with the father (from five nights a fortnight to one night a fortnight since the May 2021 orders), there was no persuasive evidence that X’s relationship with the father had changed, with the father telling the court that his son continues to model/mirror him just as he was observed to do by the child expert in October 2020.
(b)X will benefit from having a strong relationship with both his parents;
(c)The father has some limitations to his capacity to support all of X’s needs, including his ability to comply with his son’s medication regime. If the overnight time happens on a Friday night, Ritalin is not required to be administered and any adverse effects arising from X not being administered his other medication will be ameliorated because I accept that the mother can ensure that he returns to his routine for two nights before resuming a new school week;
(d)The risk of X being exposed to his father’s negative attitudes towards the mother will be constrained by his limited time in his father’s household;
(e)X’s relationship with the mother and T will remain secure.
The father is non-citizen of Australia, has no passport and there were no available details about the itinerary for his planned travel to England in 2023. X has never spent 21 days in the father’s sole care and X requires routine and consistency, failing which (particularly insofar as the maladministration of his medication is concerned) he will become physically aggressive. Given X’s vulnerabilities and the uncertainty of the father’s intentions I am not prepared to permit X to travel out of Australia as sought by the father.
I have carefully considered the balance of the father’s relief. There was insufficient evidence to make the restraints that he sought and for the same reasons as already expressed, I am not prepared to order that X spend any additional time with his father during school holidays.
However, to support X’s relationship with the father I have made orders about certain special occasions so as to ensure that X spends time with both his parents on those occasions. I have preferred the ICL’s version of what this should look like on X’s birthday.
Because of the parties’ most recent failed attempt to negotiate time outside of the existing orders I have acceded to the mother’s submission not to invite further parental conflict by permitting them such flexibility into the future. In doing so, I am satisfied that the risk of parental conflict will be significantly reduced.
I have also made an order to regulate the changeover arrangements which in my view give some flexibility should the father change his residence (noting that historically this has occurred) but will also ensure that X spends time with the father consistent with the start and end times as prescribed within the Orders. I have included an order requiring the father to give the mother notice of him changing his residential address to ensure the changeover routine remains consistent for X.
For the reasons above, I am satisfied that the Orders I have made are in the bests interests of X.
I certify that the preceding two hundred and sixty (260) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kearney. Associate:
Dated: 18 May 2022
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