McDonald and McDonald

[2016] FCCA 2664

FEDERAL CIRCUIT COURT OF AUSTRALIA

MCDONALD & MCDONALD [2016] FCCA 2664

Catchwords:
FAMILY LAW – Children – application for final orders – interim orders made – recent diagnosis of autism spectrum disorder.

Legislation:

Family Law Act 1975 ss.60CC, 61DA

Applicant: MR MCDONALD

Respondent: MS MCDONALD

File Number: SYC 7594 of 2013

Judgment of: Judge Boyle

Hearing dates: 19, 20 and 21 September 2016

Date of Last Submission: 21 September 2016

Delivered at: Sydney

Delivered on: 21 October 2016

REPRESENTATION

Counsel for the Applicant: Ms Steggall

Solicitors for the Applicant: Corish & Co

Counsel for the Respondent: Mr Givney

Solicitors for the Respondent: Broun Abrahams Burreket

ORDERS PENDING FURTHER ORDER

1. The matter is listed for mention on 13 February 2017 at 9:30am.

2. All prior parenting orders in relation to the children X and Y born (omitted) 2012 are discharged.

3. The children shall live with the mother.

4. The father shall spend time with the children in accordance with Orders 4 and 5 of orders made 29 April 2016, to continue until such time as the Contact Centre becomes available for changeover.

5. The father shall spend time with the children X and Y born (omitted) 2012:

   (a)Upon the Contact Centre being available for changeovers;

   (i)Each Saturday from 9:00am to 1:00pm.

   (b)From 1 December 2016;

   (i)Each Saturday from 9am to 3pm.

   (c)On Christmas day from 12pm to 4pm.

6. In order to give effect to Order 5:

   (a)The parties shall do all things necessary to arrange with Interrelate at (omitted) to arrange changeovers at the Contact Centre.

   (b)The mother shall deliver the children to the Contact Centre at (omitted) at the commencement of time and the father shall return the children to the Contact Centre at the conclusion of the time.

   (c)In the event the Contact Centre at (omitted) is not open on Christmas day, the changeover shall take place at (omitted).

7. The father shall ensure that Ms A is present at all times when the children are in his care pursuant to these Orders and if she is unavailable the paternal grandmother.

8. The parties shall commence family therapy with Dr D, or such other practitioner recommended by Dr A and in respect of such therapy:

   (a)The parties shall equally bear the cost.

   (b)The parties shall within seven days of the date of these orders, each make arrangements for a separate appointment with Dr D.

   (c)Unless each of the parties agree, the parties shall be seen separately by Dr D.

   (d)The paternal grandmother may attend if requested to do so by the therapist.

   (e)The purpose of the therapy is to:

   (i)Assist the father to be more emotionally connected with the children.

   (ii)Assist the father in providing appropriate boundaries for the children.

   (iii)Assist the parties in addressing the special needs of the children and in particular the transitioning of the children from one party to the other.

   (iv)Assist the parties in understanding and appreciating the special needs of the children.

   (v)Improving the parties’ level of communication.

   (vi)Extension of the Father’s time with the children.

   (vii)Assist the mother in promoting the Father’s relationship with the children.

   (f)The mother shall ensure the children’s attendance at therapy at such times as directed by Dr D.

   (g)The parties shall provide a copy of these Orders and a copy of the reports of Dr A dated 5 November 2014 and 23 July 2015 to Dr D.

9. In the event that therapy pursuant to Order 8 takes place on a Saturday, the father’s time with the children shall occur on Sunday in accordance with the times specified in Order 5.

10. The mother shall keep the father advised of the name and contact details of the occupational therapist and speech therapist consulted with respect to the boys and the father be at liberty to communicate directly with those people and attend appointments if requested by the therapist.

11. That each of the parents shall be listed on enrolment forms at daycare or pre-school and are hereby authorised to communicate directly with the daycare or pre-school to obtain any reports issued, receive any information usually provided to parents, and attend any events to which parents are invited.

12. Each parent shall keep the other informed of his/her telephone number, and email address and advise the other forthwith of any change to those details.

13. Neither parent shall speak critically or in a derogatory manner about the other parent or members of the other parent's family in the children’s presence, or within their hearing, or permit any other person to do so.

14. Neither parent shall use physical means to discipline the children or permit any other person to do so.

15. That the father have telephone or Skype or other similar electronic communication with the children every Monday, Wednesday and Friday between 6:30pm and 7pm and at other times as agreed, and both parents shall facilitate such communication with the children by arranging such devices and for the children to use them, and give the children privacy in their conversations.

16. The parents are to provide a communication diary at handover with information about any health or eating issues for the children.

17. That each party maintain a photograph of the children with the other parent in the children’s room at their home.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 7594 of 2013

MR MCDONALD

Applicant

And

MS MCDONALD

Respondent

REASONS FOR JUDGMENT

1. This is a parenting dispute between the parents with respect to twin boys, X and Y born (omitted) 2012, now aged 3 years 10 months. The dispute concerns the time the boys should spend with their father.

2. The parties have provided case outline documents which contain the material on which they seek to rely, to which I have had regard.

Material Relied Upon

1. For the father:

   a)Initiating application filed 20 December 2013.

   b)Father’s affidavit filed 7 September 2016.

   c)Affidavit of Ms A filed 2 September 2016.

   d)Affidavit of Ms N filed 2 September 2016.

   e)Affidavit of Ms K filed 2 September 2016.

   f)Child Dispute Conference memorandum dated 16 April 2016.

2. For the mother:

   a)Response filed 12 March 2014.

   b)Mother’s affidavit filed 29 August 2016.

3. Dr A prepared 2 expert’s reports dated 5 November 2014 and 23 July 2015.

The Exhibits

1. I have also before me a number of documents tendered:

   a)M1. The father’s form from Interrelate dated 11 September 2014.

   b)M2. 2 photographs of the backyard at the father’s (omitted) property.

   c)M3. Interrelate attendance report dated 28 May 2016.

   d)M4. 2 Interrelate reports dated 6 August 2016 and 20 August 2016.

   e)M5. 2 photographs of room and contents at the (omitted) property.

   f)M6. Mother’s amended minute of orders sought.

   g)F1. Letter from father’s solicitor to Dr M dated 8 March 2016.

   h)F2. Universal intake form from Interrelate Family Centres dated 4 September 2014.

   i)F3. Printout of emails between the parties dated 17 June 2013 and April to May 2014.

   j)F4. Copy of chapter from DSM-V Diagnostic Manual on Autism.

   k)F5. Father’s amended minute of orders sought.

   l)CRT 1. The expert’s reports prepared by Dr A dated 5 November 2014 and 23 July 2015.

2. The matter proceeded as a final hearing over three days. The father relied on the amended minute of orders tendered[1].

   [1] Exhibit F5.

3. The mother provided a Minute of Orders at the conclusion of the evidence. As a consequence of the recent diagnosis of the boys with autism spectrum order, the mother seeks that the matter not be finalised, interim orders be made, and the matter stood over part heard.[2]

   [2] Exhibit M6.

4. At the conclusion of the hearing the dispute centred on whether there should be final orders for progression of time as sought by the father increasing to overnights in 6 months and full weekends from the beginning of 2018. The mother sought that orders be made for time up to 6 hours during the day, on an interim basis.

Diagnosis of Autism Spectrum Disorder

1. Shortly prior to the commencement of the final hearing, the boys attended with their mother upon a paediatrician, Dr K. Two letters of Dr K dated 16 August 2016 are in evidence.[3] The letters refer to each of the children being diagnosed with autism spectrum disorder, level 1.

   [3] Mother’s affidavit filed 29 August 2016, exhibit H.

2. The particular difficulties for each of the boys are noted in the letters of Dr K. With respect to X, Dr K notes:

   X is a lovely three years and nine months old boy who has age appropriate overall development and can be quite creative. However, he is experiencing difficulties in social-emotional reciprocity, in social interaction with peers and limited non‑verbal communication skills. In addition, he displays repetitive speech matter, motor stereotypes, limited self-direction and imaginative play, sensory processing issues, difficulties with transition and change of routine and literate thinking.

3. It is suggested that speech therapy would address X’s repetitive and stereotyped speech and social communication difficulties, and that occupational therapy would be able to focus on his sensory processing issues, play and fine motor skills and separation anxiety.

4. Y is also recorded as being a delightful child. The difficulties he is experiencing are:

   Social-emotional reciprocity in social interaction with peers and limited non-verbal communication skills. In addition, he displays repetitive speech and behaviour, sensory processing issues, lack of self-directed and imaginative play, some difficulties with transitions and change of routine and rigid thinking patterns.

5. Y is also referred to speech therapy to address the repetitive and stereotyped speech and social communication difficulties, and occupational therapy to process on sensory processing issues, play skills, repetitive behaviour and separation anxiety.

6. The father was notified of the diagnosis on or about 22 August 2016 by the mother. He was not aware that the children were seeing Dr K.

Orders made at the conclusion of the hearing

1. At the conclusion of the evidence there was an agreement with respect to some matters to occur immediately, that is, prior to this judgment. Some minor aspects of those orders were in dispute. The parties agreed to engage in therapy with Dr D, to commence as soon as is practicable. The children will be involved at times. There is an issue about this therapy involving other members of the father’s family.

2. A recommendation was made by Dr A in the second report for the father and children to be seen separately and together for regular therapy sessions. The father commenced seeing Dr M, who both parties agreed was suitable. Unfortunately she was unable to continue in this work, and referred the father to two psychologists within the practice: Dr B and Ms A. Dr B was for personal counselling for the father, and Ms A as a specialist in developmental and educational child psychology to address parenting strategies.[4] The mother did not agree to Ms A as a suitable substitute to see the children, as her experience appears to be with older and adolescent children. The mother suggested other psychologists. These were not suitable to the father, primarily due to cost and distance. This stalemate remained unresolved at the time of the hearing.

   [4] Father’s affidavit filed 7 September 2016, Annexure J.

3. Dr A was concerned that Dr B did not provide the psychological support to the father that he had recommended. Dr B is a clinical psychology registrar. Dr A gave evidence that this means that he is in training. The diagnosis of autism spectrum disorder was not available at the time Dr B saw the father. Dr A was concerned that Dr B he made statements about attachment between the children and father, and parenting capacity, without making any observations of the father and children.[5]  He has seen the father on 4 occasions only.

   [5] Father’s affidavit filed 7 September 2016, Annexure K.

4. The parties were in agreement that the time spent between the boys and their father should no longer be supervised, and should move immediately to 4 hours. Further there was agreement that the father’s partner, Ms A, will be present with the father during the visits.

5. There was a dispute about who should be present if Ms A is not available. The father intends Ms A to be the person present, however, she is employed full-time by the (employer omitted). The boys require certainty about the time that they spend with their father, and should Ms A not be available, a substitute is required.

6. There are obvious difficulties for a parent on their own managing the care of infant twins, let alone twins with the behavioural problems of these children. The father will need to develop a high range of skills to manage the boys. The parents need to be able to parent co-operatively. They need to be attuned to the boys’ needs, and develop common strategies to manage their behaviour. It is expected that they will be assisted in this by the therapeutic intervention.

7. Ms A was an impressive witness in most aspects of her evidence. She is more removed from the parental conflict than other members of the father’s family, and came across as sensible and calm. Of the father’s witnesses she is the one most likely to be able to communicate with the mother about the boys, and develop a co-operative relationship with her.

8. The paternal grandmother is the only other person who is regularly available to assist the father. It may be that he needs to rely on her from time to time to be present with the boys.

9. Unfortunately, in her evidence the paternal grandmother was hostile about the mother, and defensive about the father. For example, she adopted the father’s perspective, of Dr A as being biased against her son. It would not have given the mother any comfort that the paternal grandmother would raise with her difficulties experienced by the children, nor that the paternal grandmother might promote a cooperative relationship between the parents.

10. Despite the potential problems with the paternal grandmother’s involvement, she is the only other person advanced by the father who is available to assist him with the boys. It is imperative for the boys that time arrangements not be interrupted, so that their relationship with their father occurs. I therefore determined that the paternal grandmother should assist if Ms A is not available.

11. The parents are the people primarily responsible for the care of the children, and the ones who need to be most involved with the therapy. Part of the role of therapy is to improve the parent’s communication. Ms A has a role as she is living with the father in a committed relationship, and is intended to be present during the children’s time with the father. The paternal grandmother may be involved from time to time, as the therapist recommends, given her role as a secondary support for the father.

Background

1. The orders herein incorporate the orders of 21 September 2016 so that all orders affecting the children are in one place.

2. The father was born on (omitted) 1978 and is 38 years old. The mother was born on (omitted) 1977 and is aged 39 years old. The parties met on (omitted) dating website and formed a relationship in about March of 2009. On (omitted) 2011, the parties were married.

3. The twins were born five weeks premature by caesarean section on (omitted) 2012. They were in the neonatal intensive care unit at (omitted) Hospital for five weeks. The mother was the parent primarily present at the hospital with the boys, with the father involved from time to time around his working commitments.

4. The parties separated in circumstances where the mother left the home with the children to visit her parents on 3 April 2013. She did not advise the father until a couple of weeks later that she would not return. The mother and children continued living with her parents until earlier this year, when she obtained accommodation for herself and the boys.

5. Arrangements were put in place between the parties for the father to spend short periods of time with the children, with the mother present. There was tension between the parents, with the father of the view that the mother was being unnecessarily controlling and restrictive about his time with the children. The mother’s perspective was that the father did not have the skills to care for the infant children and was rough with them. The parties attempted mediation unsuccessfully in September 2013.

6. The father filed an initiating application on 20 December 2013. The boys were then just over 1 year old.

7. On 29 December 2013 there was a dispute between the mother’s brothers and the father, when the father attended at the mother’s parent’s home to see the children. The father applied unsuccessfully for an Apprehended Violence Order. On the same day the Police visited the mother, following a complaint made by the father about a bruise on Y’s arm. No further action was taken by the Police.

8. From 29 December 2013 the mother did not permit the father to spend time with the children. The parties have not communicated since this time.

9. Interim orders were made on 25 March 2014 for the father to spend time with the children for 2 hours each Thursday and Sunday in the presence of his sister. The children were upset and unsettled around these visits. On 2 May 2014 the mother observed a large bruise on Y on the inside of his right leg above his knee after his return from spending time with the father. Y was taken to the general practitioner and then (omitted) Hospital. The records from the hospital record: “no strong evidence of Non-Accidental Injury (NAI) or child abuse.”[6]

   [6] Mother’s affidavit filed 29 August 2016, Exhibit L.

10. The mother had not seen any behaviour that would explain how Y was bruised. She sent a text message to the father, who said there was no bruise when Y’s nappy was changed during the visit. The mother was not satisfied by the father’s information, and reported the matter to the police. No action was taken. The mother suspended the father’s time.

11. The mother filed a Notice of Risk on 5 May 2014, and filed an application to suspend the father’s time on 9 May 2014. Although the parties agree an interim hearing was conducted on 19 May 2014 before Judge Scarlett, no orders were made until 30 April 2015.

12. I do not find that Y was physically abused by the father causing the bruise, nor that information about bruising of the child was deliberately withheld from the mother. It is not possible on the evidence for me to make a finding about how the child was bruised. The mother was already concerned about the boys as there were problems for them in separating from her. The twins were approximately 1 ½ years old. The bruise, and lack of explanation for it, compounded her concerns.

13. The mother filed an interim application so there could be a judicial determination of the issue of the father’s time, in the light of her concerns. I accept that the mother acted out of a genuine concern about the boys, rather than a desire to thwart their relationship with the father.

14. In the absence of a judicial decision, arrangements were made between the parties in August 2014 for time to occur at the (omitted) Contact Centre and time commenced in September 2014. The boys did not manage the transitions to their father’s care well, and the mother was advised by the Contact Centre staff of their difficulties in settling the children. On 12 October, 18 October, 26 October and 1 November 2014 she was asked by staff to return to collect the children early, as neither they, nor the father, could not settle the children.

1. From November 2014 the boys settled somewhat into the time arrangements, such that time occurred. There were still difficulties, particularly in transitioning the children from the mother to the father. The difficulties are recorded at length in the Contact Centre notes, and in the reports from Phoenix Rising, who commenced supervising visits in the alternate week to the Contact Centre from July 2015, pursuant to orders of 30 April 2015. The records include observations of the boys crying and being very upset, running down the street, refusing to get out of the car and the like. Additionally there were difficulties at times in the father and supervisors settling the boys during the visits.

Interim or Final Orders

1. The issue of whether I should make interim or final orders at this stage hinges around the recent diagnosis of the boys with autism spectrum disorder, and the evidence of Dr A.

2. Dr A gave evidence that he was advised by the parties about the diagnosis of Dr K. He telephoned Dr K, and spoke with her. He noted that as the reports of Dr K were brief and to the point, he wanted to clarify the “robustness of her assessment”, the reasons for the referral, and the manner of the mother’s description of the children.

3. The mother’s evidence is that there were concerns raised with her by the preschool, which led to her seeking a referral from the general practitioner, and then an assessment with the paediatrician. The concerns of the preschool were about the lack of reciprocity in social play by the boys at the preschool.

4. Dr A reported Dr K as basing her diagnosis on her own clinical observations, which included the boys’ unusual speech. She provided to Dr A specific examples, such as asking the children age appropriate questions to which they could not respond. She noted their repetitive speech patterns. She also took into account the observations of the preschool of unusual speech patterns, and the lack of interactions in a social context of the boys.

5. Dr A asked Dr K whether the mother had raised her concerns about the father in the course of the assessment. She had not done so and had appropriately focused on the problems of the boys.

6. Dr A’s evidence was that after speaking with Dr K, he was satisfied that the diagnosis of the boys having autism spectrum disorder level 1 was appropriate. The diagnosis goes some way to explain the behaviour management challenges of the boys that both parties have experienced.

7. Dr A commented on the diagnosis of autism spectrum disorder as reflecting a shift with respect to the definition of autism from the Diagnostic Statistical Manual-IV (DSM-IV) to DSM-V. The diagnosis and criteria with respect to autism spectrum disorder are now categorised by different levels of severity, requiring different levels of support. Level 1 is the lowest level of severity.[7]

   [7] Exhibit F4.

8. Dr A requested a recommendation from Dr K for a psychologist, local to the parties, to assist with respect to behavioural management routines and managing the boys’ “catastrophic reactions to change”. Dr K recommended Dr D, a psychologist at (omitted) as being suitable. The recommended occupational therapy and speech therapy have been organised.

9. Dr A reported Dr K commenting on the excellent attachment between the mother and the children, and that she was highly attuned and very appropriate with respect to their developmental needs.

10. Dr A’s evidence is that the boys have a high degree of separation anxiety, which makes leaving their mother emotionally difficult. Difficulty transitioning from one situation or activity to another is also a feature of autism spectrum disorder. These underlying issues are no doubt exacerbated by the mother’s anxiety, and lack of trust with respect to the children spending time with the father.

11. I do not find that the mother has done anything consciously to make transitions difficult for the boys, but rather that the boys pick up on her anxiety. This is despite what the supervisors describe of the children’s good relationship with their father, and enjoying their time with him.  The mother accepted these observations of the supervisors.

12. Fortunately, both parents agree on the need for therapeutic intervention to benefit the children, and accept Dr D as being suitable. The only difficulty may be in appointments being available on weekends to fit around the father’s work. If Dr D cannot accommodate times suitable for the father, there is an agreement for a different practitioner to be located.

13. I accept the mother’s argument that interim orders should be made. The diagnosis of autism spectrum disorder was made just over a month ago. The unpredictability of the boys managing overnight and longer periods of time with their father means it is not appropriate for final orders to be made. Dr A was unable to recommend when the boys might be ready for overnight time with their father. His evidence is that the therapeutic intervention is a necessary step for increased time to be successful for the boys.

14. Dr A’s opinion was that the initial change should be to unsupervised weekly time, moving to 4 hours for 2 months, and then to 6 hours. It is only once the children are comfortable that time should move to overnight. He could not recommend a time frame for a move to overnights, as it depends on the progress of the therapeutic intervention.

15. The aims of the intervention are set out in the interim orders. Broadly, it is intended to assist the parties to communicate about the boys, and adopt the same strategies to manage their behaviour. Both parents need to have access to all the professional information available about the children. They need the opportunity to discuss their concerns with the therapist. Through this it is hoped that the parents will build a relationship where they can, for example, trust the other’s observations of the children, and competency to manage the children. A consistent approach between the parents should assist the boys settle comfortably into time with their father.

16. With the assistance of the therapeutic intervention the parties may be able to resolve the progress of time from daytimes to overnights. If they are unable to do so, then there will be a further hearing in the matter at a time when evidence is available about the children’s ability to manage overnight time away from their mother.

17. Orders for changeovers will be to and from the contact centre. The boys’ behaviour in running away makes changeovers occurring at a McDonald’s car park, as sought by the father, an unnecessary risk for the children. I would be extremely concerned about the safety of the children in those circumstances, where it is difficult for either of the parents to manage and contain the children.

18. It is clear the transitions need to be done in as simple and straightforward a way as possible. The contact centre is a familiar place for the children, and Dr A was of the view that having routines and places familiar for the children would assist in transitions.

19. The father seeks that time occur on 2 occasions each week, with the boys to be collected from childcare on Wednesdays. The father’s evidence is that his work arrangements are not so flexible that he could collect the boys, and he would be reliant on his mother. The time arrangements should be focused on developing his relationship with the children, and to occur in a predictable way for the children. The orders provide for time to occur on a weekend day, when the father is reliably available.

20. The father will understandably be frustrated that he is not able to spend increasing, and overnight, time with the boys within a specified time. The difficulty is that there are real problems for these children which need to be addressed and managed by the parents now. It is impossible to predict how the time will progress when the therapeutic intervention has not yet begun. To order increasing increments of time with their father without a proper examination of how the boys are coping, would not be in the boys’ best interests.

21. Given interim orders are to be made a brief consideration of the 60CC factors follows. As the proceedings are part heard, detailed findings on the evidence would not be helpful.

Primary considerations

Section 60CC(2) The primary considerations are:

(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. The boys have a close, meaningful relationship with their mother, which is beneficial for them. They are primarily attached to her, which is unsurprising given that she has been their primary carer throughout their lives. They look to her for support and comfort.

2. The father is developing his relationship with the boys. There have been a series of gaps in their relationship with him, through no fault of his. It is in the boys’ best interests to have a meaningful relationship with their father. Dr A’s evidence was very clear about the importance of the boys having their father in their lives. His presence as the male figure will assist them model masculine development.

3. They need to be able to share with him a range of interests and experiences in order for their relationship to properly develop. This was noted by Dr A to become more important when the boys move to adolescence, as they benefit from shared activities and experiences with their father.

4. Their father being interested in them encourages the development of their self‑esteem, and provides support to them. It is important for the boys to be able to spend regular time with their father across a range of activities and experience. This will be provided for by the orders made, albeit limited to daytime periods at this stage.

5. I note the reference earlier in this decision to a bruise on Y. I do not find that the father poses a risk of physical harm to the children. That is inherent in the cessation of supervision. There is no evidence that the mother would expose the children to risk of harm.

6. Turning to the most relevant of the secondary considerations under section 60CC, in the circumstances of this matter.

Section 60CC(3)(b) the nature of the relationship of the child with:

(i) each of the child's parents; and

(ii) other persons (including any grandparent or other relative of the child);

and

Section 60CC(3)(f) the capacity of:

(i) each of the child’s parents; and

(ii) any other person (including any grandparent or other relative of the child)

to provide for the needs of the child, including emotional and intellectual needs

1. Each of the parties raises an issue with respect to the mental health of the other, which if correct may impede their capacity to care for the children, and affect the nature of their relationship with the children.

2. The father contends that the mother suffered from postnatal depression following the birth of the children. In the course of seeing Dr A, he raised that both he and his mother had raised the issue of postnatal depression with the mother, which she rejected. Dr A records:

   Mr McDonald struggled to identify Ms McDonald’s alleged features of postnatal depression. He stated that she had experienced a personality change, would focus “ridiculously” on cleaning, yet did not clean up and refused to perform normal domestic roles which were left to him. He acknowledged that he had not raised the question of postnatal depression with the general practitioner.[8]

   [8] Court Exhibit 1, report of Dr A dated 5 November 2014 para 45.

3. The mother says that she did not suffer postnatal depression following the children’s birth. Dr A could not find any current evidence of postnatal depression, or abnormalities on a mental state examination of the mother.[9] There is no evidence upon which a finding could be made that the mother suffered from postnatal depression.

   [9] Ibid paras 5-12.

4. The mother has cared well for the boys throughout their lives, and I find that she has the capacity to meet their physical and psychological needs. She is the boys’ primary attachment, and they share a close and loving relationship.

5. The mother raised concerns about the father’s hoarding, and anger management issues. It was noted by Dr A that the father sought to minimise any issues with respect to concerns. He dismissed the maternal family as “minimalists” who discard everything. He viewed this as “Hitler-style burning of books”. He acknowledged restoring and selling lawnmowers. Over the past six years, he had sold more than 100 lawnmowers. He viewed this as a “healthy hobby”. He thought he currently had approximately 40 lawnmowers in the backyard at (omitted).[10]

   [10] Ibid para 33.

6. The father said there were significantly less lawnmowers in the backyard now than had been the case during the relationship. A photograph of the backyard of the (omitted) property, which the father agreed looked much as it did when he last saw it, was tendered.[11] The lawnmowers clearly occupy a significant area of the backyard, and number at least 40.

   [11] Exhibit M2.

7. The father was, in cross-examination on this subject, much as Dr A described. He minimised that there was any issue in this regard. He has not lived at the (omitted) property since April 2015. He said that he has sold the lawnmowers and they are awaiting collection. There was no verification of the sale provided to the Court, nor evidence of a collection date of the lawnmowers. I am not satisfied on the evidence that the father has made those arrangements.

8. The father was also questioned about collecting watches and pillowcases, which he agreed he does. When it was suggested he had approximately 70 pillowcases, he was unsure of the precise number.

9. Ms A gave evidence that she has attended at the (omitted) home on several occasions, and looked around the house. She says she has never looked at, or been in, the backyard. She acknowledged she was aware of an issue with the father collecting, or hoarding, lawnmowers. It was suggested by counsel for the mother that this must mean that the father sought to hide the backyard from Ms A, or that she was being untruthful in her evidence. Another option is that she chose not to inform herself about the state of the backyard.

10. I do not have any evidence of where the windows in the (omitted) house are, and whether they provide a view over the backyard. Ms A was a forthcoming and straightforward witness in all evidence other than this, as referred to earlier in this judgment. I do not find that Ms A lied, but that she did not inform herself about the backyard.

11. The father suggested that photographs of a room inside the home depict the contents of 2 rooms put into 1 at the time of separation.[12] Whether that is the case, or it is the contents of 1 room, the degree of clutter would not be safe for the children. The same can be said for the backyard at (omitted). That the father was unable to concede that his behaviour presented any kind of difficulty is unfortunate. It suggests that he has limited insight into any problems that he may have in this regard.

    [12] Exhibit M5.

12. The mother raised that the father suffers from anger management issues. The father agreed that he has taken an antidepressant for approximately the last 10 years. He suggested that it was initially prescribed because of stress from his work, rather than depression. He says he has continued to take the medication without a doctor renewing the prescription, or reviewing the medication for the last 10 years. I do not find that evidence credible. Dr A gave evidence that a prescription for antidepressants could not cover a period of 10 years, as the father suggested. A prescription was needed from time to time for the medication and must have been provided by a doctor.

13. Dr A viewed the prescription of a low-dose antidepressant medication as being indicative of the father’s behavioural vulnerability.

14. Dr A posited:

    It is possible that this may render him vulnerable to agitation and anger in dealing with emotionally challenging circumstances as alleged by the mother. He lacked insight and failed to acknowledge any such vulnerability. Although he could benefit from psychological intervention, in the first instance he would need to acknowledge the nature of his problems.[13]

    There was no evidence that he was likely to do so.

    [13] Court Exhibit 1, report of Dr A dated 5 November 2014, para 109.

15. Dr A refers to the father and paternal family as normalising unusual and excessive “collecting” behaviour.[14] He was of the view that it was possible that the father would fulfil the criteria for a Hoarding Disorder, however the minimising of the problem by the father and his family limited his capacity to make such a diagnosis.

    [14] Ibid.

16. There was an issue arising from the observations of Phoenix Rising about the eating habits of the children during time with their father. Dr A referred to the recurrent references in the notes to the children being given fairy bread, tiny teddies, jelly cups, lollies and the like. His evidence was that in the context of autism spectrum disorder children are more vulnerable to becoming fixated on particular activities, so that visits may become associated with eating sugary foods. Using food as a distraction for these children is particularly unhelpful, as the behaviour of these children suggests that have a tendency to become pre-occupied, or fixated.

17. The father needs to learn other strategies to manage the boys’ behaviour, which will happen through the therapeutic intervention. It is important for the children’s time with the father that his capacity to manage them is improved well before any overnight time commences. It is also important that the mother knows this is occurring, as she needs to be confident about overnight time with their father for it work.

Section 60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

1. Change for these boys needs to be made managed carefully for it to be successful for them. Being separated from their mother overnight represents a significant change for these particular children, which they may not be ready for by a specific time, as proposed by the father. If overnight time is commenced prior to the boys being ready it may have a catastrophic effect on them. This supports interim orders being made at this stage.

Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

1. On one view, interim orders will require a further hearing in the matter. Final orders that provide for arbitrary increases in time for the boys with their father may well have the same outcome. In the latter event, fresh applications need to be brought, which would cause delays in the matter being dealt with. Court oversight, as Dr A referred to it, is preferable in this instance. There have been 2 lengthy periods when the boys did not see their father. It is not in their interests that occur again if a problem occurs.

2. It may be that with the assistance of the therapist the parties are able to reach a resolution for the pace of increase of the father’s time with the boys. Knowing that they will be called to account for their willingness to participate in therapy may also encourage the parties’ commitment to the process.

Parental Responsibility

1. These are interim orders. In the circumstances of this matter it would be inappropriate to apply the presumption with respect to equal shared parental responsibility.[15] That is an issue that can be considered at a later date.

   [15] Family Law Act 1975 s.61DA.

Conclusion

1. The matter will be listed for mention so that progress can be ascertained early in 2017. This is the only solution for the boys to develop a secure relationship with their father that will make them comfortable with spending increasing time with him.  

1. The boys need their parents to be able to communicate about them. It may be that as they grow there are different behaviours in the boys as manifestations of their autism spectrum disorder that become problematic for the parties to manage. Having a therapist involved, agreed to by both parties, should give the parents’ confidence that they can learn to manage the boys effectively. It also gives a forum for them to raise relevant future matters, such as an appropriate school for the boys and any treatment options.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Boyle

Date: 21 October 2016