McGlennan and Don (No 2)

[2010] FamCA 443

FAMILY COURT OF AUSTRALIA

MCGLENNAN & DON (NO. 2) [2010] FamCA 443

FAMILY LAW – CHILDREN – with whom a child lives – where the child is severely autistic – where the child has lived with the father – where the child is progressing in the father’s care – where there is a history of violence – where the father has abused alcohol in the past – where the child’s siblings reside with the mother – where the father has obstructed previous attempts for the mother to spend time with the child – consideration of the child’s autism and his inability to adapt to change – where a change in circumstances poses a  significant risk to the child outweighing the other relevant factors – orders made that the child live with the father

FAMILY LAW – CHILDREN – parental responsibility – whether the presumption of equal shared parental responsibility in s 61DA has been rebutted – where the parties have a highly toxic relationship – where the parties are unable to communicate effectively – where it is not in the best interests of the child for the parties to have equal shared parental responsibility – father to have sole parental responsibility

FAMILY LAW – CHILDREN – with whom a child spends time – best interests – orders that the mother to spend time with the child on a weekly basis and that she adhere to the child’s established routine

Family Law Act 1975 (Cth) ss 60CA, 60CC & 61DA

G & C [2006] FamCA 994
Mazorski & Albright [2007] FamCA 520
Blair & Blair [2007] FamCA 253
McCall & Clark [2009] FamCAFC 92

APPLICANT: Mr McGlennan

RESPONDENT: Ms Don

INDEPENDENT CHILDREN’S LAWYER: Northern Territory Legal Aid Commission

FILE NUMBER: DNC 148 of 2009

DATE DELIVERED: 3 June 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Darwin

JUDGMENT OF: BURR J

HEARING DATE: 29, 30 September 2009, 1, 2 October 2009, 2, 3 & 6 November 2009, 8, 9, 10, 11, 12, 15, 16 February 2010, 17 May 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MS MUDIE (to 10 February 2010)

SOLICITOR FOR THE APPLICANT:

WITHNALLS (to 10 February 2010)

FATHER IN PERSON (from 10 February 2010)

COUNSEL FOR THE RESPONDENT:	Ms McLAREN
SOLICITOR FOR THE RESPONDENT:	ASHA McLAREN

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	MS ELLIOTT
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	NORTHERN TERRITORY LEGAL AID COMMISSION

Orders

1. That all previous current parenting orders in relation to the child M (“the child”) born … September 2000 are discharged.

2. That the child live with the father who shall have sole parental responsibility for him.

3. That save and except as otherwise agreed between the parties, the mother spend time with the child each Saturday from 10.00 am until 5.00 pm UPON NOTING that:-

   (a)such time shall include a visit to the C swimming pool;

   (b)such time shall include time spent at the mother’s residence;

   (c)the mother will arrange lunch for the child which includes Red Rooster chips.

4. That all handovers at the commencement and conclusion of each period of time that the child spends with the mother shall be conducted at the premises of Catholic Care SAVE AND EXCEPT that in the event that Catholic Care are not prepared to make their facilities available to the parties, then handovers are to be conducted at the main entrance of the S Shopping Centre.

5. That the parties do all such things, sign all such documents, attend all such interviews and pay all such fees as may be necessary to access the handover facilities of Catholic Care in the event that Catholic Care are prepared to make their facilities available to the parties.

6. That both parties and any other person(s) on their behalf or instructed by them are restrained and an injunction is hereby granted restraining each of the parties or such other person(s) from:-

   (a)assaulting, molesting, harassing, intimidating or abusing the other party;

   (b)remaining within the vicinity of the other party, save and except for the brief period of each handover to be conducted pursuant to paragraph 4 of these Orders;

   (c)following or engaging with or contacting the other party, save and except for the brief period of each handover to be conducted pursuant to paragraph 4 of these Orders;

   (d)attending at or remaining within a 1 kilometre radius of the residential premises occupied by the other party

   SAVE AND EXCEPT:-

   (i)in the event of an emergency that impacts upon the child and in which event the person with the care of the child at that time is to telephone the other parent to advise of the manner of the emergency and the action that has been taken;

   (ii)at meetings promoted and organised by the child’s school;

   (iii)at attendances upon Dr B or any of the child’s other treating medical practitioners.

7. That the parties are restrained and an injunction is hereby granted restraining each of them from relocating the place of residence of the children Q (“Q”) born … October 1994, L (“L”) born … February 1996 and M from the greater Darwin area.

8. That the parties attend all meetings organized by M’s school convened to promote his education, welfare and development and do use all reasonable endeavours to abide the school’s directions and programmes proffered by the school including any suggestion or proposal for M to spend more or different time with the mother, Q or L when the school is of the view that such changes are beneficial for M and could be accommodated by him.

9. That the following persons or organisations be at liberty to secure from the Independent Children’s Lawyer or this Court a copy of these Reasons for Judgment for their information only UPON CONDITION that the same are not to be published or used for any other purpose or in any other proceedings before any other Court or tribunal without leave of this Court, namely:-

   (a)K Primary School;

   (b)Dr B;

   (c)Northern Territory Families and Children department;

   (d)Mr V.

10. That the appointment of the Independent Children’s Lawyer be discharged.

11. That all applications be removed from the pending list.

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

FAMILY COURT OF AUSTRALIA AT DARWIN

FILE NUMBER: DNC 148 of 2009

MR MCGLENNAN

Applicant

And

MS DON

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

The applications

1. The parties are in dispute over parenting issues.  Initially that dispute related to three of the parties’ children, namely Q (“Q”) born in October 1994 (15 years of age), L (“L”) born in February 1996 (14 years of age) and M (“M”) born in September 2000 (9 years of age).  During the course of the proceedings before me, issues were resolved between the parties in respect of Q and L and I made orders by consent that they live with the mother.  Thus the parties’ dispute centres around their severely autistic son M.

2. Each of the parties seek orders that M live with them and that they have sole parental responsibility for him.  Various orders for the other parent to spend time with M are proposed.

3. The parties have six children in all born of their 27 year relationship.  M’s five siblings are W who is aged 26 years, X who is aged nearly 25 years, Y who is aged 23 years, Q and L.  The three oldest siblings all still reside in Darwin but not in the homes of either of the parties.

Background

1. The father was born in 1964 and is now aged almost 46 years.

2. The mother is now aged 43 years having been born in 1966.

3. The parties entered into a de facto relationship in 1981 when the mother was aged 15 and the father aged 17.

4. As I previously mentioned, their relationship which spanned 27 years, produced six children.

5. The parties occupied four residences in Darwin during the course of their relationship.  They were situated at E, O, U and A where the father and M continue to reside. 

6. The parties had a very turbulent relationship where they both allege an extensive history of violence and abuse against one another.  It is also alleged that the father was abusive towards the children.  Many of these incidents involved Northern Territory authorities.  Allegations of drug and alcohol abuse are also levelled at the father.

7. The parties separated and reconciled on many occasions, each occasion for differing lengths of time.

8. During these separations, it was the mother who left the family home.  The children remained in the care of the father.  

9. There is significant dispute about the time of the parties’ final separation.  According to the father, the parties separated in 2004 but the mother says it was in April 2009.  The mother says that the parties did separate in 2004 but this was only for a period of three months.

10. The father says that he allowed the mother to return to the family home to stay on many occasions after 2004.  He denies that there was ever a resumption of their relationship.

11. In 2004 M was diagnosed with an Autism Spectrum Disorder with Global Development Delay.

12. M commenced attending K Special School in 2005.

13. The father alleges that the mother was unable to cope with M’s difficult behaviour and on occasions shook him or yelled at him in frustration.  The mother vehemently denies this allegation.

14. The mother says that she went to live with her eldest daughter, X, from August to November 2008 after the father threw her out of the home at A. 

15. On 11 November 2008, M was admitted to hospital for 5 weeks suffering from malnutrition and abscesses.  The mother says she stayed by M’s side for the entirety of his hospitalisation which the father disputes.

16. Following M’s release from hospital the mother says she returned to the home at A.

17. In late February 2009, it is alleged that the father hit the mother in the nose causing it to bleed when she refused his advances.

18. On the 25 March 2009, the parties had an argument which ended with the removal of the mother by the police.  She was taken to a women’s shelter for the night. 

19. On 26 March 2009, the mother removed M from his school without the father’s knowledge.  She says she did so out of concern for the children’s welfare following the argument she had with the father the previous night. 

20. On the same day the father filed his initiating application seeking orders that M live with him and that he have sole parental responsibility.

21. A recovery order was issued by Federal Magistrate Terry on 27 March 2009.

22. On 30 March 2009 M was located by the police and returned to the care of the father.  The father says that the police found the mother and M in a stairwell.  The mother says that she was residing with a friend.

23. The mother says that she left the father for the final time on 16 April 2009.  Q accompanied her. She sought refuge at a women’s shelter, and they subsequently provided her with a house in which she is still resident.

24. On 21 April 2009 Orders were made by Federal Magistrate Terry providing that Q was to live with the mother and L with the father.

25. In May 2009 the Northern Territory Families and Children department (“NTFACS”) commenced an investigation into allegations of abuse following numerous notifications regarding the welfare of the children.

26. On 19 May 2009, Federal Magistrate Terry made Orders for the mother to spend time with M at Centacare on one occasion each week.

27. The mother filed a Notice of Child Abuse or Family Violence on 29 May 2009 which sets out in significant detail a long list of incidents where she alleges that the father was physically and verbally abusive towards the family but particularly her, L and M.

28. On 16 June 2009 NTFACS took L into the care of the Department.  This followed L making disclosures of being abused by the father.

29. The mother filed a contravention application on 29 July 2009 alleging that the father failed to facilitate attempts to make arrangements for M to spend time with her.

30. The first and only visit took place on 7 August 2009.  The father says he subsequently terminated the visits as their timing disrupted M’s highly regimented routine which he says had detrimental effects on M’s behaviour.

31. The father’s use of the Children’s Contact Service was suspended shortly after.

32. I made Orders on 2 October 2009 providing that the mother was to adhere to M’s established routine to minimize any stress which may be caused to him.  The Orders also provided that the mother was to spend time with M on a weekly basis.

33. The father filed a contravention application on 12 October 2009 alleging that the mother failed to comply with the above Orders by diverting from M’s established routine as provided.   I further amended the orders on 15 October 2009 to better identify M’s routine which was to be followed by the mother.

34. The father filed an application on 23 April 2010 seeking to reduce the mother’s time with M as he alleged that this was causing him to regress in his behaviour.  In particular, he expressed concern that M was difficult to handle following spending time with the mother.

35. As a precautionary measure, I made Orders on 13 April 2010 reducing the mother’s time to fortnightly visits.

36. The trial of the matter before me initially proceeded from 29 September 2009 to 2 October 2009.  It was adjourned part heard and continued on 2, 3 and 6 November 2009 and then further from 8 February to 16 February 2010 when I initially reserved my Judgment. On 17 May 2010 I needed to admit fresh evidence due to some disturbing behaviours which had developed in M. 

The evidence

1. At the commencement of the 15 day trial proceedings before me each of the parties was represented.  However, on day 10 of the trial, Ms Mudie for the father indicated that she was no longer able to represent him and I accordingly gave her leave to withdraw.  Thereafter the father represented himself.

2. Each of the parties gave evidence in support of their application before the Court.  The father also called evidence from the eldest son W, from the Assistant Principal of M’s school, Ms H, from his former solicitor Mr David Story and from Ms S.

3. For her part the mother also called evidence from the parties’ elder daughter X, from Ms D and from Ms BH.

4. The Independent Children’s Lawyer called evidence from Family Consultant Mr V, M’s paediatrician Dr B and Mr ES of NTFACS, part of the Department of Health and Families.

5. Two further documents were agreed as being in evidence before me without the authors of same being required for cross-examination and they were a Family Report dated 2 November 2009 by family consultant Mr R and Occupational Therapy Home Safety Assessments in relation to both the mother’s and the father’s premises by Ms RS dated 29 January 2010.  Mr R had earlier given oral evidence in the proceedings but confined to the issue of Q’s and L’s wishes in respect of their care.  Subsequently those issues, as indicated above, were resolved by consent between the parties.

6. Subsequent to the conclusion of the trial proceedings I allowed fresh evidence to be called as a consequence of information filed by the father indicating a serious deterioration in M’s general wellbeing.  The fresh evidence which I allowed is contained in, and annexed to, an affidavit of the father filed 12 April 2010.  Inter alia the annexures are copies of notes from the Emergency Department of the Royal Darwin Hospital from an attendance on 2 March 2010, copies of notes recorded by M’s teacher at K School and a letter from Dr B dated 12 April 2010.  As a consequence I required additional evidence to be called from Ms H.  She provided her oral evidence by video link on 17 May 2010 when I again reserved Judgment.

Credit

1. I am not able to state as a matter of general observation that I prefer the evidence of one of the parties over that of the other.  I entertain serious concerns about the veracity of both.  The truth appeared to be a particularly flexible component when issues of discomfort arose for them.  I identify below any specific areas in which credit was an issue and identify my findings at that time.

2. Apart from the experts, the most impressive witness was the parties’ oldest son W.  He was open, forthright and engaging.  He indicated that whilst he gave evidence at the request of his father, he was not there to “take sides”.  He simply wished to address some issues of concern to him.  He indicated a particular concern about the evidence of his sister X, who gave evidence in support of the mother’s case.  He indicated that X could not be believed on a number of topics and that she had a propensity to lie.  

3. X was less impressive as a witness and I certainly have greater concern about her veracity as against that of the son W.  She had clearly “taken sides”.  Her dislike for her father was palpable.  She appeared incapable of acknowledging anything good about her father.  However, she was certainly brave.  It would have been a particularly difficult exercise for both children to give evidence in the dispute between their parents. 

4. During the course of the giving of his evidence and whilst he was represented, the father was difficult to manage in a trial sense.  He spoke loudly and at times shouted.  He found it difficult to follow direction from the bench.  He at times stood in the witness box and gesticulated to emphasize a point he was endeavouring to make.  He indicated a clear resentment of authority.  He was at times disrespectful of and disparaging towards Counsel at the bar table.  He at times left the Courtroom without warning indicating his upset at some parts of the evidence.

5. However, his conduct did not lead me to the conclusion that I could not rely upon his evidence in all circumstances.  Interestingly, once his Counsel had withdrawn from the proceedings and the father then represented himself, his behaviour was markedly different.  His previous conduct and alarming exhibitions effectively disappeared.  He seemed comfortable in the control of his own case.  He was intelligent, insightful and informed in his cross-examination of witnesses.  He was respectful to the bench and essentially respectful at most times to Counsel at the bar table.  It was a significant transformation and improved the atmosphere in which the trial was thereafter conducted.

M’s autism

1. Before embarking upon an analysis of the evidence pertinent to relevant sections of the legislation, it is important to detail and summarise the relevant aspects of M’s condition and health.  Supported by evidence from the parties themselves and the two siblings who gave evidence (W and X), the Court received significant assistance from M’s paediatrician, Dr B, and from the Assistant Principal at K Primary School (the school which M attends) namely Ms H.  Neither party challenged the qualifications of either of the witnesses to give expert evidence in these proceedings.

2. As a consequence of the father’s concern about aspects of M’s presentation in 2004 during one of the occasions that the mother had left the former matrimonial home and the children in the care of the father, Dr B assessed M as suffering autism at the moderately severe end of the scale.  It was Ms H’s view based on her experience with autistic children and with M particularly, that M’s autism was at the severe to profound end of the scale.  Whatever is the exact categorisation, M is clearly a young 9 year old boy suffering severe restrictions upon his health and development as a result of his autism.

3. Dr B did not see M again after 2004 until December 2008 when M was hospitalised with severe malnutrition.  He was also suffering from a deep seated ulcer and an accompanying infection.  Prior to the December 2008 admission there had been a number of other admissions to hospital over the previous five months relating to boils and abscesses and a bout of gastroenteritis.  Dr B indicated that none of the conditions with which M presented at the Royal Darwin Hospital, including his severe malnutrition in December 2008, could in any way be attributed to neglect.  M had again been in the care of the father alone for many months leading up to the December 2008 hospital admission.

1. Dr B indicated that M had in fact been at risk of malnutrition for a long time due to his refusal to eat.  Dr B described M as having been a “sitter” for malnutrition and that his underlying malnutrition had likely been there for a lengthy period.  He found confirmation in this opinion from the many months that it took for M’s parents and their consulting dietician to turn things around.  He said that all problems with M’s general health at that time had been resolved, particularly with respect to his diet.  He has seen M at regular intervals since his December 2008 hospital admission in order to monitor his progress and health.  He indicated that, prior to the events leading up to the admission of fresh evidence, M had no ongoing medical health issues.

2. Dr B was cross-examined by the wife’s Counsel at some length as to whether or not M’s several presentations at hospital and in particular his December 2008 admission, indicated neglect by the father.  Dr B was absolute in his opinion that there was no indication of neglect by the father and in fact, quite the contrary.  He said that the father’s actions in admitting M to hospital was the correct action for him to take and that he had observed an exemplary relationship between the father and M.  He said that from his observations, the relationship between the father and M was a caring one and that the father demonstrated a consistent approach in calming and settling M when necessary.  He indicated that in his times in consultation with the father and M and in observation of them, the father had “never lost it” with M.  He cited a particular example on the penultimate occasion that he saw M which was on 2 February 2010.  On that occasion M threw a few tantrums and tried to wrestle a particular book away from Dr B.  He said that he was not able to control the situation but the father was.  He said that the father managed to “save” his book in a calm, measured and understanding way.  He said that due to the father’s management of the situation, it ended with M giggling.

3. Further confirmation of the father’s capacity to appropriately manage M and his behaviour is seen from annexure 2 to his affidavit filed 12 April 2010, which was part of the fresh evidence allowed by me.  In that report from the Emergency Department of the Royal Darwin Hospital in relation to a visit on 2 March 2010, the Emergency Department Registrar, Dr Z observed:-

   “ … Aggitated [sic] child.  Repeatedly hitting his head and chest with his hand and biting his hands.  Screaming intermittently.  Able to be consoled by dad ….”

4. Dr B’s evidence about M autism and its implications and effects can be summarised as follows, that:-

   57.1.M’s autism was at the moderately severe end of the spectrum;

   57.2.early intervention was critical and that further development may be limited hereafter and in fact as he gets older there may be some regression with time;

   57.3.M’s moderately severe autism had not changed since he first saw him in 2004;

   57.4.it affects socialisation;

   57.5.M lives in a world of his own;

   57.6.M does not relate to strangers as other children would;

   57.7.M’s language is impaired;

   57.8.M’s communication generally is impaired;

   57.9.M engages in ritualistic behaviour;

   57.10.M has real difficulty with change of any sort but in particular with routine and environments.

   57.11.M’s reaction to change may well be exhibited by severe agitation, upset, distress, tantrums and self-mutilating behaviour;

   57.12.M would respond best to a well regimented regime;

   57.13.even if not accompanied by any suffering, even a change from a bad routine to a good routine would lead to distress;

   57.14.with co-operation change could occur but over time;

   57.15.without co-operation of all relevant adults and in particular parents, it would make it extremely difficult for M to adjust to change;

   57.16.the best way to manage change would be for it to be gradual and with co-operation;

   57.17.change is the worst possible situation for an autistic child who needs constancy;

   57.18.if M is faced with arguments and chaos, he would be attuned and become distressed;

   57.19.if M’s parents were stressed, M’s stress levels would rise;

   57.20.M’s routine is event based rather than adult based.  In other words, M’s attachment would be more to the event or to the routine than to the adults or other children in his life.  He agreed that the actual adults in M’s life are far less significant to him than the event or the routine itself.  He said that the situation and the routine come first followed by the development of any association with people involved in that routine.

   57.21.contact with siblings would be recommended in an ideal world but that otherwise it is the actual environment that is of the most importance to M’s ongoing quality of life in that a more structured routine and more structured scenario is going to keep him happier and in a less anxious state;

   57.22.it is important that M not be exposed to any angry outbursts and shouting.  He identified shouting as a particular concern in that autistic children struggle a great deal with noise and that noise particularly agitates them;

   57.23.despite Q and L’s adjustment to living with an autistic brother, a boisterous environment could only be managed by M in the event of there being good co-operation between the parents.  He said that M’s autism would impose particular difficulties upon Q and L as well as they too have to be part of the routine.  He again identified noise as being a particular stressor for M in a household with siblings;

   57.24.the most important thing is a caring, structured environment;

   57.25.the stress associated with the family conflict may well have left M delayed and regressed and that the best of him may well not come except through a conflict free, structured and caring environment;

   57.26.autistic children are typically taller and stronger than average children and physical management becomes a serious issue.  He gave one disturbing example of a 25 year old autistic male in the Northern Territory who requires three full time carers to manage him physically and his behaviours, at a cost of $750,000 per annum;

   57.27.a caring and supportive structured environment for M is the best way of preventing precipitation of such agitation that it becomes unmanageable;

   57.28.M should live in a primary care arrangement but there should be contact with the other parent and his siblings.

5. Ms H, the Assistant Principal of M’s school, was an impressive witness.  M’s lot and those of other autistic children are greatly enhanced by the dedication, knowledge, skill and experience of Ms H and those like her.  Ms H saw M’s disability in a slightly different light than did Dr B, obviously because of her prolonged exposure to M effectively on a daily basis.   It was her evidence that:-

   58.1.M’s autism was at the worst end of the scale, being severe to profound;

   58.2.she saw that as being the case due to the impact of his autism upon his cognitive ability and intellectual ability;

   58.3.in terms of his ability to communicate he suffered a severe expressive and receptive language delay;

   58.4.his communication was by behaviour;

   58.5.when M is happy it shows;

   58.6.when M is not happy his behaviours are disturbing;

   58.7.he uses pictographs (symbols) to make requests;

   58.8.he was at the very early stage of literacy and developing ways of getting what he wants other than by behaviour;

   58.9.his pictographs are limited to about 8 in number being those representing, for example, food, drink, toileting and preferred activities;

   58.10.he understands only a small amount of key words which are familiar to him and which need to be backed up with visual cues;

   58.11.this was a significant and “huge” move for M over the last 2 years as before he could only identify what he wanted by use of the real object;

   58.12.the Makaton sign language is used to assist in understanding as well as a means of expression;

   58.13.every sensory form is used to assist in communication and that part of it is that used by the deaf;

   58.14.the use of hands is encouraged as it assists in bedding information into the brain;

   58.15.as sign words are used, efforts are made then to assist in speaking the words;

   58.16.the participation of the parents is important in the development of the sign language and that the parents can learn from the children;

   58.17.M has probably 5 to 6 signs but is learning more;

   58.18.M takes a long time to bond with others or to bring others into his presence;

   58.19.M will be your best friend if you have what he wants;

   58.20.in 2009 M evidenced improvement;

   58.21.it is the father who brings M to school each day and settles him if he is making a fuss;

   58.22.M responds to his father’s instructions;

   58.23.the father is a lot better now at confronting M with instructions;

   58.24.M is now a lot better at responding to those instructions;

   58.25.routine is significantly important to M;

   58.26.any change in routine can lead to M becoming very annoyed and in that regard she related one incident with another child in the bus when M began stamping his feet, hitting his head and squealing.  In another incident where M was introduced to a new staff member, he became agitated and not able to concentrate.  He exhibited aggressive behaviour and was not receptive to any instruction;

   58.27.the inability to relate to the new teacher was an indication of M’s inability to adjust to a different person even though it was the same routine. (This is somewhat contradictory to the evidence given by Dr B who indicated that the routine was important, not the person);

   58.28.M experiences difficulty in transition to the next activity;

   58.29.if left to his own devices he would stay with the one activity all day;

   58.30.sensory materials are important to his development such as books, water, play dough, computers, The Wiggles and music but essentially those associated with television shows;

   58.31.he may be developing some embryonic recognition of people;

   58.32.M could not handle change or change in routine too frequently.  She gave an example of it being possible to change an activity at one location but if it was moved to a different location then it would be difficult for M;

   58.33.any change would require a person to be very well organised;

   58.34.change would need to be taught over time with everything else remaining the same;

   58.35.each school year some change is introduced but minimal change only;

   58.36.M will adapt but only with time;

   58.37.he adapted well in 2009 because he was able to keep the same teacher’s assistant and remain in the same class with the same students;

   58.38.the school Principal’s comments in M’s 2009 report (Annexure “LH2” to Ms H’s Affidavit filed on 28 September 2009) describing M’s “quick development” was contextual in that it was slow but good for him.  It was progress against his own bench marks;

   58.39.M’s learning and progress is a life long journey taken in very small steps;

   58.40.the school would help where it could to assist in any changes in M’s life even if they thought it was ill-advised;

   58.41.any progress which accommodated change was in a very narrow band and she had no confidence that there would be a favourable outcome if the changes were huge changes;

   58.42.the mother’s departure from the matrimonial home was a large change;

   58.43.the school was probably a constant in M’s life;

   58.44.the mother engaged in consistent communication with the school through a communication book between 2004 and December 2006;

   58.45.the father does not use the communication book because he speaks to the teacher when he attends in the mornings;

   58.46.the mother was reluctant in 2004 / 2005 to be involved in M’s pre-school;

   58.47.there is nothing to prohibit the mother attending at the school outside of school times provided the school is not used as an “access centre”;

   58.48.it was her understanding that in 2008 / 2009 M largely lived with his father alone;

   58.49.during that period she noticed M starting to recover and improve;

   58.50.subsequent to the Court ordered times that the mother was spending with M there had been some increase in his adverse behaviours on Mondays, including hitting and disruptive behaviour;

   58.51.M struggles with noise and finds a noisy classroom very difficult;

   58.52.he blocks his ears often when it is quite noisy;

   58.53.M is a strong boy and hurts when he hits;

   58.54.early in the first term of this year M quite badly hurt his teacher when he hit her across the arm which resulted in swelling and bruising;

   58.55.the capacity to manage him physically will become very difficult and will likely occur very shortly.  This is a particular concern in light of Dr B’s evidence that autistic children typically grow to be bigger and stronger than the norm;

   58.56.he needs a regimented routine but also needs to be challenged in a secure environment to learn to cope with change;

   58.57.behavioural management was important.

6. Ms H, in her original evidence, also spent some time describing M’s daily routine.  It is a quite structured and particularised routine which includes settling in for the day, group sessions, group activities, rest and meals including morning tea, recess and lunch.  M is in a class of 6 children of about the same age.  There are over 100 children at the school in almost twenty classes.  Ten of those classes are at the K Primary School campus and the rest are at other primary schools in a satellite arrangement.  Each class of 4, 5 or 6 students has a teacher and a teacher’s assistant.  Each child has an individual programme, even with only 6 children in the class.  It is a very intensive exercise.  She described M’s very particular diet which included an iron supplement provided by the father and prescribed by Dr B.

7. Overall Ms H spoke of the school’s relationship with the father in very positive terms.  They saw him as actively interested and engaged in M’s development, his parenting and good parenting practice.  They had seen him improve, particularly in the care of his father, over the 12 months of 2009.  She identified a nurturing attitude in the father towards M.

8. The fresh evidence of Dr B and Ms H painted a disturbingly different picture of M.  In his report dated 12 April 2010 (annexure 4 to the father’s affidavit filed on the same day) Dr B recorded:-

   “The examination today once again, [M] was fine in his father’s company, was affectionate for most of the time, but occasionally, became agitated and biting his father and self-mutilating.

   The marks from his hands from recent bites is worse than I have seen for some time and the problems with the finger and toenails was quite marked with errothema on virtually all beds.

   I hope this helps, I have one [sic] again asked to review [M] in the near future.  It seems to me that there will continue to be ongoing behavoiur [sic] difficulties early in the week, unless the structured environment that is present for most of the week is continied [sic] over the weekend.”

   At the conclusion of the trial proceedings I had continued the Orders that M spend time with the mother from 10.00 am to 5.00 pm each Saturday.  Ms H’s evidence of 17 May 2010 confirmed the disturbing changes in M and his presentation at school.  Specifics of his altered behaviours and regression are also recorded in M’s teachers’ notes (annexure 3 to the father’s said affidavit filed 12 April 2010).   Those detailed notes are prefaced by a letter which summarises:-

   “The teacher and the school leadership team have noted an increase in [M’s] aggressive behaviour.  This behaviour appears to be in response to

   ·   the teacher saying ‘no’ to something [M] wants to do,

   ·   requests to do a task that he does not want to do

   ·   being asked to stop an activity he is engaged in.

   There are other times when there appears to be no apparent reason.  The target of the behaviour is usually his class teacher, SESO and other class mates.”

9. Those notes spanned a period in February and March 2010.  Some extracts from those notes variously record:-

   62.1.12 February 2010. 

   “Morning

   – Assembly in our room = 30 kids – Crowd seemed to upset him

   –    Sent him to corner to relax+ read – keep calm.

   Middle Session

   -     very demanding.

   -     requested playdoh – was told he had to do ‘Good Work” to earn playdoh – started hitting, yelling.  Slapped [DI] hard.  Sent to T/O 5 min.  Came back in and did the same again – requested, told work 1^st, yelled + hit out.  Sent to office 10 min.  Came back.  Completed work (yelled throughout).  Earnt ‘Living Book’ story.  Listened calmly.”

   62.2.15 February 2010

   “Morning – Arrived calm.  Sat down with magazine and read.

   Literacy groups – 9.00   Became upset – hitting himself and yelling when asked to do work.  Took himself outside, calmed down, came back in.  Completed work (yelled some but finished work).

   Middle – Class story – Did not sit well with group.  Kept getting up + walking around classroom.  Asked for computer using pictograph.  When it wasn’t given he became very upset – yelling, pushing me to get to computer.  Was sent outside for T/O.

   Dot painting at desks – Was asked to do Go [sic] Work to earn computer time.  M kept pointing to the computer pictograph.  Yelled and hit out when asked to do work 1^st, computer 2^nd.”

   62.3.18 February 2010

   “Morning – yelling on arrival.

   – Calmed down but became upset when asked to drink his juice. Used ‘Working For’ chart.  Completed with some yelling + biting.  Was calm and independent ‘reading’. ….”

   62.4.19 February 2010

   “ …

   Middle –   Overall unsettled and pushy. 

   PaintingSpent much of the session wandering around

   Computerthe classroom.  When asked to sit he’d become

   Writingupset (hit, yell).  Twice he was sitting calmly then with no obvious trigger began yelling and hitting out.

   Spent a lot of the middle session in time out.

   ….”

   62.5.22 February 2010

   “ ….

   Did not want to complete work in middle session.  Cutting + pasting photos of our excursion – slapped [DI], screwed up work.  Was sent to time out.

   …..”

   62.6.26 February 2010

   “…

   When asked to do work he is yelling, biting himself and hitting out. ….”  

   62.7.1 March 2010

   “ …

   - Became angry 2-3 times throughout the day with no obvious trigger. ….”  

   62.8.8 March 2010

   “-   Arrived upset.  Lay in corner bed reading and whining.

   -     Was irratable [sic] throughout the day.  Would settle for 10 minutes then become upset, yell at hit + bite himself.

   -     At the end of lunch play (Rm 1 movie) was given 2 min warning, movie was then turned off.  [M] became very upset, yelling, began hitting out + at others.

   -     Continued with unsettled behaviour in the afternoon.”

   62.9.15 March 2010

   “Arrived smiling but pushy.

   Was asked to pick up chair to bring it to table for cooking.  Became very angry – hitting, pinching and biting out at [DI].  Was sent to time out.

   -     At lunch deliberately kicked a classmate when he got in his way.  Was told to stop – continued doing it.  Was sent to another play area.

   -     Was calm in afternoon watching classical music DVD.  Became upset when asked to go to toilet.”  

   62.10.16 March 2010

   “-   Very pushy and determined all day.

   -     Hit, bit and kicked during swimming, morning session and part of afternoon session. ….”  

   62.11.18 March 2010

   “ ….

   When asked to come back to class after play charged at [DI] ready to hit out.  Was asked if he wanted to stay.  Calmed down and stayed sitting on bench for – 30 minutes more.  Came back to class calm with adult.

   Kept asking for movies.  When denied became agressieve [sic] (hitting out).  Was sent outside.  Came back in smiling and targeted others to hit out at.  Was sent outside.  Returned to class calm after – 20 minutes.

   - Is requiring extended periods of time alone / uninterupted [sic] to stay calm.  Is not handling being told ‘no’ calmly, instead hitting out.”

   62.12.22 March 2010

   “Arrived upset.  Was pushy and demanding.  Wanted movies / music and was not happy without.  Started hitting out at others.  Was sent to time out.  Lunged at and hit those who walked past.

   At playtime was taken to the office because he was going after others hitting and kicking.  Physical touch – hand drumming on hands and with feet helped to calm him.  …”

   62.13.23 March 2010

   “- Very agressive [sic] – hitting, kicking throughout the day.  I spent morning intensively working with [M].  He completed – 20 minute work (puzzle and beads).  Without obvious trigger [M] started hitting out (while smiling + yelling).  I said ‘What do you want?  Show me’.  I repeated this firmly until he signed toilet (used correct sign).  Went to toilet – calmed.  Became agressive [sic] again and remained so on and off throughout day.”

   62.14.25 March 2010

   “Very agressive [sic] throughout the whole day.  Is seeking negative interactions with staff and students.  If put in time out / isolation he attacks anyone walking past.  If no one is around he brings himself back into classroom and targets, usually a teacher first, then students.  Is often smiling / laughing when hitting out.

   [M] spent very little time with the class today.  He was too agressive [sic] and disruptive to be around the other students. …”

   62.15.26 March 2010

   “Has had moments of calm today if left alone in a quiet area (or with music).  When required to do anything becomes angry and agressive [sic] (work / toilet / walking / lunch…

   Is only calming if put in quiet isolation.  Takes – 10 – 15 minutes to calm completly [sic]”.

   62.16.29 March 2010

   “When given what he requested he was calm.  If denied a request or asked to do something he would hit out.

   He actively sought to hit out at adults.  If other students were around he went after them as well.

   Ate calmly today.”  

   62.17.30 March 2010

   “….

   Lunch –    became upset when asked to drink milk drink.

   -Scratched his arm on my nail when he came to hit at me.

   Continued to be upset and took himself outside.”

1. It was the father’s case that most of the examples of M’s regressed, angry and violent behaviour were on a Monday following the weekend time spent with the mother. Certainly 7 of the examples quoted above were on a Monday (being 15 February, 22 February, 1 March, 8 March, 15 March, 22 March and 29 March 2010) although the behaviours witnessed on 29 March 2010 followed a weekend when the mother did not see M.  In any event, it was Ms H’s evidence that M’s challenging behaviours were not confined to Mondays.

2. Ms H’s fresh evidence in summary was that:-

   64.1.M’s behaviour and presentation had seriously deteriorated and his progress had regressed.

   64.2.The triggers for his poor behaviour were change.

   64.3.His disturbing behaviours included a propensity to hit out at staff and other students.  As Ms H noted on the first occasion that she gave evidence, M is a growing boy, becoming increasingly physically strong and when he hits, he hurts.

   64.4.His outbursts were sporadic with no obvious link.

   64.5.When his routines are challenged he hits out.

   64.6.He has regressed badly to his previous rigid routines.

   64.7.His rigid routines need to be challenged in order that he can adapt to the challenges of life.

   64.8.Any change though needs to be in small steps.

   64.9.It will be necessary to see how M has been able to accommodate those small changes before making further change and that it will be a trial and error approach.

   64.10.Co-operation and support by all involved in his care was required and that such support would need to come from his parents and from the school.

   64.11.The school had convened a meeting with the parents and had developed some strategies for M involving a number of steps to be followed.

   64.12.A programme of positive behaviour support had been developed by the school and that M was the first student they were working with as he was the student with the greatest needs.

   64.13.The challenge was to develop a more even set of behaviours in M so that he would be fine across all situations.

   64.14.In 2009 at school M demonstrated that he could cope with change but that he was finding it very hard now.

   64.15.It was not possible to pin point the reasons for his deterioration but there were probably many.

   64.16.Rigid routines and rituals were needed by M but when they impact upon his wellbeing and his general access to the community, they need to bend and mould them.

   64.17.M needed to be prepared for change in a supportive environment, particularly as he got older and needed to accommodate such things as the death of his parents.

   64.18.The mother maintained contact with M’s teacher by email.

   64.19.They had observed a positive interaction at the school between the mother and M.

   64.20.She was unable to identify whether or not M had developed any attachment to the mother.

   64.21.The father continued to attend school every day and speak to the teachers.

   64.22.Weekly contact by M with his mother and siblings was likely to be more appropriate than fortnightly as it needs to be regular and predictable.  He could otherwise forget.

3. Evidence of M’s regression this year is also seen in Exhibits 32 and 33 which are again notes prepared by K School of M’s disturbing and regressive behaviours.

4. The aforementioned particular characteristics, features and routines of M’s autism are significant in the determination of these proceedings.  Many of the norms and accepted tenets in the determination of parenting proceedings, do not apply in this case, or are of limited application. 

The legislation

1. Any determination I make has to be dictated by the relevant provisions of the Family Law Act 1975 (as amended) and in that regard the most relevant is Section 60CA which is to the effect that the Court must make any determination on a parenting issue in terms of what represents the best interests of M. In doing that the Court is then obliged to consider the numerous sub-paragraphs of Section 60CC which is divided into “primary” and “additional” considerations.

(2) Primary considerations

(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 and being subjected to, or exposed to, abuse, neglect or family violence.

1. It was the view of the Independent Children’s Lawyer at the conclusion of the proceedings that these two provisions are the most significant and are effectively determinative of the result.  They are indeed significant.  As Parliament has identified, they are the “primary considerations”.  Factors relating to M’s autism are though significant also and provide contextual relevance across all of the considerations to which I am obliged to turn my mind pursuant to the legislation.  A review, as set out below, of some legislative history and of authorities and other first instance decisions of the Court provides some assistance in this regard.

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

1. The phrase “meaningful relationship” has not been explicitly defined in the Family Law Act 1975. However, numerous cases have considered its meaning since the 2006 amendments.

2. G & C[2006] FamCA 994 (Bennet J).

   67.The correct interpretation of s.60CC(2)(a) is not free from doubt.  One possible interpretation is that the court must take the benefit to the child of having a meaningful relationship with both of the child’s parents as a given – that is that there is a benefit to a child of having a significant relationship with both parents and the other factors have to be evaluated taking that matter into account. 

   68.The second possible interpretation is that the court must evaluate the nature and quality of the relationship to establish whether any “benefit” or meaningful relationship exists. 

   …….

   71.The arguments supporting the second possible interpretation include;

   a)      Section 60CC read in its entirety is a section which calls for the various factors therein outlined to be evaluated and weighed in coming to a view on what is in a child’s best interests;

   b)     The primary considerations are described in the explanatory memorandum (paragraph 4)as follows:-

   “The intention of separating these factors into two tiers is to elevate the importance of the primary factors and to better direct the court’s attention to the revised objects of Part VII of the Act which are set out in the new section 60B...”

   The explanatory memorandum does not contemplate that the factor is to be accepted rather than evaluated. It simply explains that the legislature intended to elevate it to a more prominent role;

   c)     The whole of s.60CC calls for an evaluation of various factors by the court.

   d)     Had the legislature intended to build in a presumption that there is a benefit to every child in every circumstance the legislature would have made such a presumption clear.  I note in other parts of the amended legislation the legislature has clearly described presumptions which it intended the court to apply;

   e)     The terms of s.60B (1) (a) (one of the objects of Part VII) discuss the need to ensure that children have the benefit of both parents having a meaningful relationship to the maximum extent consistent with the best interests of the child.  The section calls for an evaluation of the best interests of the child in order to achieve appropriate compliance with the object.  It would be illogical to then require the court in establishing what is in a child’s best interest under s.60CC to accept as a presumption the very issue which will have an effect (in either a positive or negative way) on the attainment of the object. 

   72.My preference is to adopt the second possible interpretation and I do so.  It is a prospective enquiry.  I am therefore required to evaluate the extent to which a meaningful or significant relationship with both of his parents is going to be beneficial and of advantage to B into the future. 

3. Mazorski v Albright [2007] FamCA 520 (Brown J).

   3.The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).

   ……..

   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.

4. Blair & Blair [2007] FamCA 253 (Le Poer Trench J quoting with approval M & K [2007] FMCA Fam 26 Altobelli FM at [43ff].

   125.….His Honour correctly links the concept of “meaningful” to s 65DAA, and points out both the quantitative and qualitative aspects of it. I will add my own observations about the concept of meaningful involvement or meaningful relationship. It is a multi-faceted concept, spanning more than one dimension. For example, as Brown FM correctly points out, it is both quantitative and qualitative in nature. The concept is not a “one size fits all” concept. What is “meaningful” to a baby, toddler, school-age child and teenager may, indeed probably will, be different in each case. The concept needs to not only take into account the capacity, developmentally and otherwise, of a child to receive the benefits of meaningful relationships and involvement, but the capacity of a parent to actually provide the same as well. Accordingly, the concept also takes into account the history and quality of the relationship between parent and child, and the quality of parenting. The past and present are often the only reliable indicators of the future.

5. McCall & Clark[2009] FamCAFC 92 (Bryant CJ, Faulks DCJ, Boland J).

   116.Kay J sitting in the appellate jurisdiction of the Court as a single judge in Godfrey & Sanders (2007) FamCA 102 (an appeal involving an application by a mother to relocate) agreed with Dessau J’s exposition in M & S (formerly E) (2007) FLC 93-313 of the effect of the amending Act and said at paragraph 33:

   The Act sets out in s 60CC several matters for the Court to consider in determining what is in the child’s best interests but does not seek to mandate that any one or other matter becomes determinative in any particular case.  For the purposes of this case the legislation requires that there be a primary consideration given to the benefit of the child of having a meaningful relationship with both of the child’s parents but it does not purport to prescribe how that meaningful relationship is best promoted in the circumstances of any one case.

   and later at paragraph 36 said:

   It seems to me that the final conclusion reached by the Federal Magistrate that the proposed relocation would jeopardise the relationship between the children and their father to an unacceptable extent was not at all consistent with the evidence that was before the Federal Magistrate.  Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.

   117.Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child.

   118.It appears to us that there are three possible interpretations of s 60CC(2)(a):

   (a)one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);

   (b)a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (“the presumption approach”); and

   (c)the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).

   119.We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant.  We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents.  If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial. 

   120.We reject the interpretation in sub-paragraph (b).  In our view if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption it would have said so in clear and unambiguous language.

   121.In coming to our conclusions we accept as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazsorski.  Consistently with our conclusions we also agree with the reasoning of Bennett J in G & C.

   122.In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship.  No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.   

6. This, the first of the primary considerations, provides the first example of the differences which M’s autism present in defining and crafting orders which will meet M’s needs and best interests.  Due to his autism, meaningful relationships for M, are beyond the norm.  As Le Poer Trench J observed in Blair & Blair (supra):-

   “ …. The concept needs to not only take into account the capacity, developmentally and otherwise, of a child to receive the benefits of meaningful relationships and involvement, but the capacity of a parent to actually provide the same as well. …”

7. It was Dr B’s evidence that M should be in the primary care of one of his parents but also have contact with the other parent and his siblings “in the ideal world” provided that his quality of life was maintained by structured routine.  It was also his evidence that the event and the routine was more important than the adults or indeed the siblings.  As he said, M lives in his own world to a large extent and M’s autism provides a very different meaning to, and interpretation of, “meaningful relationships”.

8. It is beyond question on the evidence that M has a meaningful relationship with his father within the context of the routine, structure, consistency and constancy provided by the father. 

9. Dr B had no issue with the mother in a general sense but has had very little to do with her.  In the 6 years that he has been M’s treating paediatrician he met the mother only during M’s hospitalisation in December 2008.  He said that although there was nothing to prevent her from doing so, the mother had never been to see him to discuss M’s autism or general health.  It was the mother’s evidence that she had tried to make an appointment through Dr B’s secretary on one occasion but had not succeeded.  Dr B indicated that he was not aware of any attempt by the mother to see him.

10. Dr B spoke in flattering terms of Q and L.  He met them also during M’s 2008 hospitalisation and was impressed with them.  He said that siblings of autistic children need to make a number of adjustments and sacrifices as they too must accommodate M’s routines.  However, he also said that a noisy and boisterous household with his siblings might not be the best environment for M.  M is particularly noise averse.  That fact was confirmed by Ms H. Further, Dr B said that M’s security and wellbeing was more assured by routine, structure and event based activities rather than around the adults or other people involved.  Relationships that offered those features were and are the most meaningful for M.

11. Ms H though gave evidence of a very challenging and difficult additional dimension to M’s autism when she described an occasion when M found himself with a new staff member but still pursuing the same routine.  He was not able to accept that same routine being supervised by a different person and became agitated and aggressive.

12. Family Reports and oral evidence provided by Family Consultants Mr V and Mr R offer further relevant evidence on this issue of meaningful relationships.  Mr V prepared 3 reports dated 28 August 2009 (“first report”), 25 September 2009 (“second report”) and 4 February 2010 (“third report”).  Mr R’s single report is dated 2 November 2009.

13. One of the principal issues addressed in Mr V’s first report and in Mr R’s report was as to the appropriate parenting arrangements for Q and L.  As I said, the parenting issues in relation to those two children were subsequently resolved by consent between the parties.

14. In his observations prior to the preparation of his first report, Mr V spent some time with the father and M but had no opportunity to observe M in the mother’s presence or care.  He had a number of observations about the relationship between the father and M and the father’s care of M, all of which were flattering.  At paragraph 48 he had this to say:-

    “The interview was conducted on Lameroo Beach and later up the steps and along pathways in the Esplanade Park as we followed the movements of [M].  [The father’s] tone was affable, passionate and confident. …”

    Further, at paragraph 49 he said:-

    “I commented to him on how healthy [M] looked,  …..”

    At paragraph 67, Mr V observed:-

    “[M] presented as one would expect a severely autistic child to present, no obvious communication or eye contact and barely a flicker acknowledging one’s presence.  He looked fit and healthy.  His father displayed a caring capacity, keeping a close eye on him and clearly understanding the cues [M] was giving about what he wanted to do.  He made sure [M] rested in the shade, rather than stand in the full afternoon sun.”

15. At that early stage of the process, Mr V felt unable to make positive recommendations one way or the other with any confidence.

16. Consequent upon Orders I made, Mr V subsequently had the opportunity to observe the mother interacting with M at his school.  Although the mother was clearly favoured by the circumstances of being observed with M whilst he was secure in his routine at school, Mr V was nonetheless impressed with what he observed as to the relationship between the mother and M.  In his second report he records:-

    “6.It was clearly apparent that [M] was pleased to see his mother.  He demonstrated this pleasure by embracing her.  He engaged with her quickly and very positively.  [M] did not display any semblance of distress or upset around his mother.  He displayed a high degree of relaxed confidence with her.  He remained engaged with her throughout the observation period.

    7.Their engagement was marked by a great deal of tactility:  embraces, kisses, holding hands, leading each other by the hand and comfortable physical closeness.  The latter was exercised when [M] was looking through the photograph album and listening to and watching the recorded messages on [the mother’s] mobile telephone.

    8.It was also evidenced during a short telephone exchange between [M] and his sister [X].  [M] did not speak, but listened to [X] and made some gleeful sounds at a couple of points during the exchange.

    9.[The mother] played with [M] on the trampoline.  He demonstrated no discomfort at being close to her during this play.  He interacted with her on the trampoline with pleasure expressed on his face.  He smiled at her a few times.  Indeed, throughout their engagement, [M’s] facial expressions and other gestures were ones of seeking to focus on [the mother] and to be close to her.”

1. In summary, he records:-

   “10.From my observation, [the mother] exhibited highly appropriate ways of communicating with and managing [M].  Her warm and confident manner indicated she had considerable experience of looking after [M] and understanding how to interact productively with him.  Most of her communication was tactile.  She also spoke to him in straightforward and uncomplicated words.  She held his attention while she spoke.

   11.Overall, given the limitations of the observation period and its location, there was a strongly positive engagement between mother and child.  In my view, such a constructive engagement could only have been possible if [M] had experienced a long term, warm and nurturing relationship with his mother.”

2. Mr V’s second report was followed by observations and a report ordered by me from Mr R.  Whilst much of the purpose of Mr R’s report was directed to the issues then before the Court in respect of Q and L, he too observed a period of interaction between M, the mother, Q and L on 1 November 2009.  At paragraph 13 of his report, he records:-

   “The observation of [M] with his mother was quite uneventful.  [M] spent most of his time watching videos on a mobile phone, watching a music DVD, looking at photos, and swimming in an above ground pool under the mother’s supervision.  [The mother] also prepared snacks for him and ensured that he was comfortable and settled in what he was doing.  [The mother] was attentive and affectionate towards him and at times [M] responded to her affections.”

   In summary he said:-

   “Generally, I observed nothing in my observation of [M] in the care of [the mother] that gave me cause to be concerned about her ability to manage [M].  She appeared competent and caring in her interaction with [M] and managed his care in an effective and familiar manner.”

   The only cautionary observation to be made here is that, as Mr R noted, the mother occupied most of M’s time with things and activities M loved.  As Ms H observed, M will be your best friend if you have what he wants (paragraph 58.19 supra).

3. The fourth and final report (Mr V’s third report) is dated 4 February 2010 and followed a period of observed interaction between the father and M at the father’s premises, described by all in the proceedings as “the [home at A]”.  After M’s return to the home at A after disembarking the school bus, Mr V observed (paragraph 17):-

   “I had hoped to be present for [M’s] bubble bath, as it seemed to be a key component of his post school routine as described by the father.  However, when he returned, his father sat him down on his sofa and gave him his chips and cordial.  [M] looked at the newspaper and flipped studiously through a folder of pictures his father has prepared for him.  He appeared to be very content and at ease.”

   He concluded (at paragraphs 19 and 20):-

   “It was extremely clear that the father had a well developed and effective pattern of communication with [M], consisting of gestures and physical touch.  [M] and his father interacted well in my brief observation of them, much as they had during my previous observation.

   In conclusion, my observation confirmed that [M] is very much at ease in his father’s care.  While the [home at A] is clearly rough and ready and might not meet many people’s standards for a home, it appears to have the basics and [M] was very much at home there.  The father mentioned a child safety audit had been completed, but he had been given no feedback about it.”

4. In short, the summary of the observations by the two Family Consultants of M’s interaction with both of his parents was that M appeared to them to enjoy well settled and comfortable relationships with both parents, within the confines of his ability to express and demonstrate same due to his autism.  Those observations were necessarily constrained in their value by dint of their brevity, providing in reality only snapshots of a very complex family dynamic, further confused by M’s severe autism.

5. NTFACS have had a long involvement with the family.  In July 2009 NTFACS had a particular concern in relation to Q and L and took action to ensure that they were placed in the care of the mother.  Initially they had similar concerns about M but they abated during a visit to the father’s home at A on 14 July 2009.  At paragraphs 8 and 9 of his affidavit sworn 28 September 2009, Mr ES said as follows:-

   “8.During the visit it was observed that the father responded to [M’s] needs and that his interaction with [M[ appeared to be positive and genuine.

   9.It was observed that when [M] became distressed or bored he would turn to his father for comfort, and that his father returned appropriate responses.”

   And at paragraph 14:-

   “[M] was observed to be a healthy, solid young boy.  He appeared content and showed no distress such as biting his arm or screaming at the commencement of the visit, although when [M] wanted to go-cart riding he started biting his hands and screaming.”

6. I admitted into evidence DVD’s recorded by the mother (Exhibit 30) of some of her times spent with M pursuant to Orders made by me.  Each of the parties contended that the interactions and behaviours observed in the DVD’s supported their respective positions.  The mother was of the view that the DVD’s showed M as being comfortable and relaxed in her company and in the company of Q and L and that he clearly enjoyed his times with her.  I accept that could be one interpretation.

7. It was the father’s case that it was plain that M’s enjoyment at times was related to the regular activities he enjoyed as part of his routine, particularly water play, but that at other times M’s distress was obvious.  He pointed to a couple of occasions when M could be seen placing his fingers in his ears, a sign he said (supported by the evidence of Ms H) that M was distressed by the noise levels around him.  I accept that the father’s explanation also provides a possible accurate interpretation of events observed in the DVD’s.  Also, of course, both could be true at different times.

8. However, in most respects I am unable to draw any definite conclusion from viewing the DVD’s.  I am unable to make any finding that the DVD’s absolutely support the case of either of the parties or indeed both of the parties.  I invited the parties and the Independent Children’s Lawyer to ask that the DVD’s be shown to Dr B whilst he was giving his evidence in order that I could be assisted by his expert assessment of what he saw in those DVD’s.  However, neither of the parties nor the Independent Children’s Lawyer accepted that opportunity thereby leaving me without the benefit of any contribution that Dr B might have been able to make.

9. The DVD’s do provide me with some assistance though in two respects.  The first is that M is clearly noise averse.  The second, explored later in these reasons, is as to the mother’s ability to physically manage M’s physical strength.  In the DVD’s she is seen at one point struggling to prevent M from filling her mouth with sand whilst he is laying on top of her.  He is presently only 9 years of age.  As he grows, as is seen from the evidence of Dr B and Ms H, the ability to control him physically becomes a particularly relevant factor.  The fresh evidence permitted by me from M’s school provides stark evidence of his capacity for physical violence and the difficulty encountered at times in restraining him.

10. The relationship between M and his siblings Q and L was the subject of a limited observation by Mr R on 1 November 2009.  At paragraph 14 of his report he had this to say:-

    “[M] was also observed interacting with [L] and [Q] at times.  [L] was provocative at times by playing music loudly on his phone when [M] was obviously enjoying the music DVD and dancing along to it.  However, [M] did not respond to this and [the mother] intervened and asked that [L] turn off his music.  [Q] was highly supportive of her mother in managing [M] and interacted with [M] in a helpful and playful manner.”

11. Mr R’s observation that Q was supportive of the mother in the management of M accords with the father’s evidence in these proceedings.  Whilst bitterly disappointed at what he saw as Q’s rejection of him, the father gave detailed evidence of the wonderful attention and support that Q provided to M and the family generally during M’s hospitalisation in December 2008.  …. 

12. Interestingly too, Mr R makes an observation as to L’s provocative and competitive conduct in playing music loudly in interference with the music that M was enjoying.  It was the evidence of the parties’ eldest son W that all of the children are loud but that the youngest siblings are the loudest.  This provides an example of the concern Dr B expressed about whether or not it would be beneficial for M to reside with his siblings in a noisy environment (M being noise averse) as against the more peaceful one on one structured and controlled environment that could potentially be offered by the father.  It is an occasion in emphasis of the point earlier canvassed to the effect of whether the conventional wisdom of siblings being together in the one household is appropriate for M given his autism.

13. Mr V, in his first report, reported that it was Q and L’s perspective that it was the mother who had the most significant relationship with M and was the one who had attended to his care when the family was together in the home at A (paragraphs 59, 65 and 66).

14. Q and L’s views in that regard were countered by the parties’ eldest child W who, as I said earlier, was a most impressive witness.  At paragraph 55 of his first report, Mr V records W as having the following opinion:-

    “His view was that [the mother] did not have the capability to handle [M].  Only the father could, having proved it over the past few years.”

    W reiterated that view in the affidavit filed by him on 22 September 2009 where he said, at paragraphs 11 to 17 inclusive:-

    “11.[M] is my youngest brother.  I was about 17 when he was born.

    12.For the first couple of years we did not know that there was anything wrong with [M].  I think that [M] was about two or three when he was diagnosed with autism.  [M] is now nine years old and acts as if he is about four.

    13.When [M] was a baby Mum and Dad both looked after him but as he grew older and became more difficult to handle Dad has been the one that has cared for [M] most of the time.  He seems to understand him when no one else can.

    14.Dad seemed to know what [M] wanted.  Dad spent a lot of time finding out about autism.  He questioned teachers, went to Autism Australia, and got as much information as he could.

    15.Dad would often ask me to download information for him.  He also started learning the universal sign language that is used with autistic children.

    16.Since [M] started school Dad has learnt more and more about his condition.  I have noticed that Dad as [sic] modified his own behaviour a lot since he has been looking after [M] on his own.

    17.I believe that [M] should stay primarily in Dad’s care because he is the only one who really seems to understand [M] and he copes really well with him.  I am concerned that Mum will not be able to cope when [M] gets upset and distressed.  She does ot [sic] have the same ability to communicate with [M] and doesn’t appear to understand his needs.”

15. At paragraph 4 of his said affidavit and in his oral evidence, W said that the mother had left the various premises at which the parties resided over the years on a number of occasions.  At those times, which were periods of varying length including at times for months, the father cared for all of the children by himself and cared for them well.  When the parents resided together, they both cared for the children.  He remarked that when the mother was not there things were better.  He said that the father was less aggressive and drank less (a significant factor when dealing later with the issue of the father’s alcohol abuse).  It was further his evidence that M interacts with the mother “to a degree” but that the moment M gets upset the mother becomes aggravated.  He said that M can be difficult to handle and requires lots of patience, lots of time and needs to be spoken to firmly.  His father is able to do that.  His mother is not.

16. During W’s evidence I asked him why he had “taken his father’s side”.  He was adamant that he was not taking sides and that he simply wanted what was best for M.  He said that could only be achieved if his father was the one to care for M.  He also said that he needed to balance X’s views as expressed in her affidavit filed 25 September 2009.  He was particularly blunt in his assessment of X.  He said that he did not like X because of many years of experience of her lying “about everything”.  He said that the reason why his parents were obliged to endure proceedings in the Family Matters Court in 1999 was because X had told the authorities that their parents had done things to her which had never happened.  The reasons delivered by the learned Chief Magistrate Bradley on 20 September 1999 (Exhibit 22) bear out W’s version of events to a degree.  At paragraph 22 of the learned Chief Magistrate’s reasons, he said:-

    “ …. The approach I have decided to take in relation to [X’s] statements is a cautious one.  I acknowledge the statements are likely to be based on truth but, having regard to her age, her acknowledged state of conflict with her father and her decision to go to and remain with the mother, they are probably exaggerated.  The allegations by [the father] of the verbal and physical abuse of the children by the mother are supported by [X].  Were the events described by [X] as frequent and serious as she asserts, then I would have expected some outside evidence to have been available.  …”

    And at paragraph 44:-

    “ … I suspect that in taking the side of the mother, [X] has exaggerated the allegations against the father specifically.  This view is supported by the Trauma Symptom Checklist for Children administered by Mr […] (page 10 of his report).”

17. I note that the learned Chief Magistrate made the same assessment of W as did I during his evidence given in these proceedings.  At paragraph 34 of his reasons, the learned Chief Magistrate said:-

    “[W] gave evidence in the father’s case.  He was a most impressive young man with very considerable verbal intelligence.  ….”

18. W too gave helpful evidence on the topic of the necessity for familiarity, structure and routine in M’s life.  He said that M “gets very clingy” and frustrated if he is taken to new places.  He said that difficulty arose even if he was babysitting M but at his own place and not the home at A.

19. The evidence of the parties’ daughter X in her affidavits filed 29 May 2009 and 25 September 2009 and in her oral evidence, was in most respects in direct contrast to that of her brother W.  As I said earlier, whilst respecting X’s bravery in standing up to her father in the witness box, I feel considerable discomfort about the veracity of a good deal of her evidence.  There are though aspects of her evidence which do ring true and which are corroborated by other materials, and in that regard I speak of the father’s use of alcohol and marijuana and his violence.  I deal with those issues later.

20. However, despite taking her mother’s position absolutely and aligning herself with her mother’s position totally, in the end result under cross-examination by the Independent Children’s Lawyer she acknowledged that both her mother and her father love M and she admitted that both her mother and her father can look after M.

21. There is evidence too that M enjoys a positive relationship with his older brother Y (who is aligned with the father’s position).  At paragraph 13 of his affidavit sworn 28 September 2009, Mr ES of NT FACS observed:-

    “Interactions were observed between [Y], the older sibling, and [M].  These were positive interactions.  [Y] was observed to have playful banter with [M] and [M] gave [Y] a hug when [Y] was leaving.”

22. Each of the parties called evidence from a friend to support their individual positions.  The mother called evidence from Ms D and the father from Ms S.  Ms D, in her affidavit filed on 21 September 2009 and in her oral evidence, painted a very rosy picture of the mother and a very black picture of the father.  Her observations as to the father’s poor care of M, if they have ever had some legitimacy, are now largely historical and do not accord with the current observations and opinions of Dr B, Ms H and Mr V.  She acknowledged under cross-examination by the father that she had had no contact with M since 2008. 

23. Late in the piece the father called evidence from Ms S who filed an affidavit on 15 February 2010.  As was Ms D with the mother, Ms S was totally supportive of the father.  She said that she had known both the mother and the father for some 19 years.  She said that she knew that the mother had “disappeared” on numerous occasions and that from her observation it was mainly the father who cared for M.  She visited the family regularly in the past and visits the father and M regularly still.  She said that the father’s relationship with M is a close one and that M is a happy boy.

24. It was a particular emphasis of the mother’s case that the father had deliberately inhibited, and even prevented, the development by her of a more meaningful relationship with M by a refusal to permit her to spend time with M and at other times obstructing and impeding the times that she did get to spend with M.  I deal with that issue later in these reasons.

25. The issue though as explicitly defined by the first of the said primary considerations, is as to “the benefit to the child” of such relationships.  It is to this particular issue and explicit requirement of the legislation that M’s autism becomes particularly pertinent.  A summary of the expert evidence of Dr B and Ms H is to the effect that M lives in his own world and that a structured and nurturing routine is more significant than his relationships with adults and others around him.  Loving, caring and nurturing relationships are essential to M in providing the structure and routine he needs and in that sense such relationships are clearly meaningful.  The benefit to M though of those relationships cannot be seen in the usual light of the emotional support that such relationships generally provide.  It is very much more the physical support which then has the incidental consequence of providing the emotional support.

26. In this highly complex matter though, the father’s relationship with M must also be viewed within the context of violence alleged to have been committed by him as against the mother, M and, at times, M.   Also significant too, is the father’s purported abuse of alcohol and marijuana and the impact such has had, and would have, upon his relationship with M. I deal with those issues in detail now in my consideration of the second of the primary considerations.

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

1. A good deal of evidence was led by the mother about the father’s violence towards her, and to a lesser extent, L and M, over many years.  It was an issue addressed by the learned Chief Magistrate Bradley in his reasons delivered 20 September 1999 (Exhibit 22).  In relation to those historical allegations prior to that date in 1999, he made these findings:-

   Paragraph 7

   “Following such removal of the children, they were interviewed and the report goes on to frankly admit:

   ‘ … the children were interviewed by Protective Services workers and Police and made no disclosures in relation to maltreatment by their parents.  They did not provide any information in relation to the extreme levels of violence known to take place between [the mother] and [the father]’.”

   Paragraph 20

   “The early relationship between [the father] and the Department was quite positive despite the fact that the initial contact was made as a result of an allegation of maltreatment of the children by [the father].  It seems that the allegations of abuse were unable to be substantiated, the children were healthy and apparently happy.  The Department established a regime of assistance and encouraged [the father] to undergo training to improve his parenting.  In the mid 1990’s further contact was made when [the father] was involved in the criminal system, but once again, notwithstanding an unusual lifestyle, the children did not appear to be in need of care.  These matters are made clear in exhibits 14-19 being Departmental reports of the outcome of various investigations, etc.  Apart from one substantiated act of abuse involving a cigarette, the Department was generally was [sic] of the view that despite an alternative lifestyle, [the father] loved and cared for his children and was making a considerable effort to better himself and his family.”

   Paragraph 21

   “Apart from the cigarette incident, the only other allegation of physical mistreatment of the children which was substantiated by the Department, was in fact physical mistreatment of [X] by [the mother].”

   Paragraph 23

   “The only time in which the Department is able to give specific evidence of events occurring in the family is in relation to the events of 14 July 1999.  On that day it seems that the family was in conflict and that the Department was called in to assist after an alleged violent episode between [the father] and [the mother].  Notwithstanding [the father’s] denial of the use of any violence and the support given to him by his son [W], I am of the view that it is more likely than not that the conflict did result in physical violence between the two parents and that the bruising and cuts sustained to [the mother] was a result of that violence which may or may not have been a two-way thing.  In the event however it is clear that [the mother] decided only to remain away for a few days.  It seems that the only child wanting to remain away from the family home was [X].  She is not available to the Court to explain her actions or her wishes.”

   Paragraph 24

   “Meaningfully so far as the requirements of the definition of ‘maltreatment’ is concerned, there is little and in relation to some children no evidence of severe psychological or social malfunctioning; there is no evidence of current antisocial (let alone criminal) behaviour on the part of the children other than [X], no expulsion from schools, no adverse school reports and except for [X], no apparent problem with personal safety.  In the absence of evidence I must assume those aspects of their lives to be at least reasonable.”

1. It was the father’s evidence, supported by the evidence of W who assisted him, that he had researched autism on the internet and through Autism NT.  It was Dr B’s evidence that, whilst M’s development henceforth is expected to be particularly limited, if M was his son he would be doing just what the father has been doing in terms of seeking to inform himself as fully as possible about autism and about developments to improve an understanding of autism, through those very sources.

2. An area in which the father has fallen short in terms of providing for M’s emotional needs, was on the occasions when he struck M.  I accept the evidence of the mother and, indirectly through the Family Reports, Q and L in that regard.

3. Another area of concern as to the father’s capacity to attend to M’s needs is in relation to his use of marijuana and alcohol.  I have explored that issue in detail above.

4. The mother gave considerable evidence both in her affidavits and orally, that the father had restricted and obstructed her ability to be involved in M’s care and schooling.  I accept her evidence in that regard.  All involved in the trial of these proceedings have been subject to the father’s loud, threatening and intimidating behaviour, all of which would have made it extremely difficult for the mother to engage as she wanted to in M’s life, activities and schooling.

5. That said though, the picture does not alter.  The father has remained the one constant in M’s life.  During the many earlier periods of separation and since the final separation between the parties, M has been cared for by the father solely.  Until M’s regression and disturbed behaviour seen in 2010, coinciding with the orders made by me that the mother spend regular Saturday time with M, M was making encouraging progress and demonstrating satisfying development in the sole care of the father.  The two most important experts in M’s life, Dr B and Ms H, were united in their agreement in that regard.

(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

1. This is not a relevant matter for my attention.

(h)if the child is an Aboriginal child or a Torres Strait Islander child:

(i)     the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)    the likely impact any proposed parenting order under this Part will have on that right;

1. Whilst the father identified himself as part Aboriginal, the issue of indigenous culture was not raised by either of the parties as a relevant issue and is hence not a matter requiring my consideration.

(j)any family violence involving the child or a member of the child’s family;

and

(k)any family violence order that applies to the child or a member of the child’s family if:

(i)     the order is a final order; or

(ii)    the making of the order was contested by a person;

1. I have explored the relevant aspects of family violence when dealing with the primary considerations above.

(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. I am satisfied that this is not a relevant consideration simply because it is an impossible ask.  The parties have been engaged for many years in litigation in the Northern Territory Courts, the Federal Magistrates Court and this Court.  Given the history of their conflict and the intensity of their toxic relationship, I fear that no matter what Orders I make, this will not be the end of the litigation between the parties.

2. My concern in that regard was confirmed by my need to allow some fresh evidence subsequent to the conclusion of the main body of the trial and to alter the orders I had made pending delivery of my final reasons for judgment.

(m)any other fact or circumstance that the court thinks is relevant;

1. I believe that no additional matters arise under this sub-section that require my consideration.

2. Without limiting paragraphs (c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:

   (a)    has taken, or failed to take, the opportunity:

   (i)to participate in making decisions about major long-term issues in relation to the child; and

   (ii)to spend time with the child; and

   (iii)to communicate with the child; and

   (b)    has facilitated, or failed to facilitate, the other parent:

   (i)participating in making decisions about major long-term issues in relation to the child; and

   (ii)spending time with the child; and

   (iii)communicating with the child; and

   (c)     has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.

3. The first two sub-paragraphs of this sub-section are particularly relevant.  Sub-paragraph (c) has no relevance.

4. I am satisfied that in respect of the matters requiring the Court’s consideration pursuant to sub-paragraph (a), the mother has failed in a number of significant respects.  As I have iterated above, prior to the mother’s apparent appreciation of its relevance in these proceedings, the mother has failed in latter years to indicate appropriate interest in M’s educational progress and schooling and no interest in pursuing detail from Dr B about M’s condition or ways of assisting in the management of that condition.  The mother was also absent from the former matrimonial home premises at various times, leaving the care of M to the father.

5. I am though satisfied that at times she had no choice but to abandon the premises due to the father’s violence and intimidatory behaviour.  I am satisfied too that on some occasions but not all, she was not physically able to take M or any of the other children with her when she did leave due to the father’s refusal to allow her to do so.

6. That said, she did not ever initiate any application to any Court of relevant jurisdiction for Orders that M live with her.  She responded to an application made by the father.  On 6 July 1998 the mother instituted proceedings but that was prior to M’s birth.  In the end result, even in those proceedings on 18 February 1999, the mother consented to the father having orders for the care of Y, Q and L.  X resided with her.  In 2004 she responded to an application filed by the father in which he sought to vary the consent orders of 18 February 1999 to require that the mother’s time with Q and L be supervised.  The mother filed a Response on 3 November 2004 seeking orders that Q, L and M reside with her but shortly thereafter, on 27 January 2005, she discontinued her proceedings.

7. In respect of the matters raised for the Court’s consideration pursuant to sub-paragraph (b) above, I am satisfied that the father is clearly at fault.  I have canvassed above occasions when he has not allowed the mother to spend time with M, or impeded the mother in spending time with M.  The capacity to communicate with M, due to his autism, is very much restricted to the occasions that one can actually spend physical time with him.

8. In her most recent evidence, Ms H emphasized M’s need to spend some time with the mother and his siblings on a regular basis.  She took the view that the mother spending time with M on a weekly basis was preferable to her spending time with M on a fortnightly basis despite the regression seen recently in M’s behaviour and development.  It was her evidence that M needed to be challenged, despite the difficulties emerging in his conduct, in order to enable him to develop and be better equipped for community engagement.  M needs to be able to spend time with his mother and siblings so that necessary communication levels can develop.

Section 61DA

1. When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

2. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)    abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)    family violence.

3. When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

4. The presumption may be rebutted by evidence that satisfied the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

5. A continuation of equal shared parental responsibility for M, is not indicated in this case.  The parties have a terrible relationship and have exhibited an inability to communicate.  M’s best interests would not be advanced by the parties sharing parental responsibility.  M’s many problems will require a number of immediate decisions to be made which cannot abide the necessity for detailed, and probably toxic, communication.  There is no semblance of a civil relationship between the parties.  It is necessary for M, and clearly in his best interests, that the father have sole parental responsibility.  The Independent Children’s Lawyer supported sole parental responsibility to the mother but that was within the context of her recommendation that M live with the mother.

6. It is thus not necessary for me to consider the provisions of Section 65DAA although the orders that I propose making for the mother to spend time with M, constitute substantial and significant time within the context of M’s autism.

Summary and conclusions

1. In this highly complex and long running toxic dispute between these parties over many, many years, the end result may, at least superficially, appear obvious, namely that M live with the mother.  Indeed, if the test in parenting cases was to reward the less blameworthy parent and punish the more blameworthy, then that would be the result here.  But for so long as the paramount consideration is the best interests of the child, results which seem unfair to one parent, will regularly emerge.  If it were not for M’s autism, nearly all relevant factors favour the mother’s application:-

   177.1.the mother loves M;

   177.2.the mother, in observation by many experts and other witnesses, has demonstrated a loving and attentive relationship with M who has responded positively to her attention;

   177.3.the mother has been subjected to significant intimidation, threats, verbal abuse and violence from the father and been forced to observe violence by him directed to L in particular and, to a far more limited extent, M.  (I am satisfied though that the father’s violence to M was particularly isolated and in the nature of a brief and temporary over-reaction to very challenging behaviours by M);

   177.4.the father has abused alcohol in the past.  He has used and still occasionally uses marijuana recreationally.  (I am satisfied by the evidence of the son W though that the father’s use of alcohol is significantly less when the parties are not residing together and are free of the enormous stresses, tensions and toxicity of their relationship);

   177.5.the mother has been provided with entirely suitable and appropriately secure and safe premises in which to reside;

   177.6.M would be joining his siblings Q and L in the mother’s care;

   177.7.the father has obstructed and at times prevented the mother spending time with M;

   177.8.the mother is an emotionally strong woman who has survived the worst of the father’s behaviour and is providing well for the siblings presently in her care.

2. Many similar factors are evident in the relationship between the father and M:-

   178.1.the father clearly loves M;

   178.2.the father has been observed by experts as enjoying and offering M a patient, loving, supportive and attentive relationship;

   178.3.M has been noted as often turning to his father for comfort and support which is willingly and caringly provided;

   178.4.the father has at times been subjected to violence (although on a far lesser scale) and verbal abuse by the mother.

3. However, as I indicated earlier, it is M’s autism which throws an entirely different complexion upon the relevant issues in this case.  Most of the usual relevant factors and appropriate tenets and principles to be applied in parenting matters, simply do not apply in this case because of M’s autism.  In particular:-

   179.1.M attaches very much more to his routine and an events based life than he does to adults and siblings;

   179.2.M is dependant upon a carefully structured and constant routine which is adhered to by his carer.  Without reiterating all of the relevant evidence on this topic but without diminishing the significance of the balance of same, I refer again to Dr B’s evidence contained in paragraphs 57.9, 57.10, 57.11, 57.12, 57.13, 57.15, 57.16, 57.17.  I further refer again to the evidence of Ms H as contained in paragraphs 58.26, 58.27, 58.28, 58.32, 58.34, 58.41, 58.50;

   179.3.M should be in the primary care of one parent but with some contact with the other parent and his siblings;

   179.4.M’s very slow progress at school is tenuous (as has been seen of late) and requires careful management and the introduction of gradual change only;

   179.5.the father has shown commendable, and at times exemplary, attention to M’s needs and routines;

   179.6.the father was the one, concerned with M’s presentation, who arranged for M’s attendance upon Dr B and secured the diagnosis of autism;

   179.7.the father is the only one who has consistently across many years actively sought out and acquainted himself with all relevant information and detail about autism and its application to M;

   179.8.the father is the only one who has taken M to see Dr B and followed Dr B’s direction;

   179.9.according to Dr B’s evidence, the father has always acted appropriately in attending to M’s medical and general health needs as well as his autism;

   179.10.in the fresh evidence admitted by me, Dr B urged a return to M’s previous stable routine in which he was progressing satisfactorily;

   179.11.M is noise averse and his best interests may well not be served by being in the same household as noisy siblings, siblings who were identified by the oldest child W as the noisiest of them all, (and in this regard I again refer to the DVD’s tendered by the mother (Exhibit 30) and the limited snapshot secured by Mr R in observing L’s competitive and challenging behaviour in M’s presence);

   179.12.Mr V’s recommended “cohesive and carefully structured programme of adjustment and transition” has not been spelled out to the Court and no indication has been provided that it is available or, if so, whether it is at all achievable.  The recently admitted fresh evidence makes it plain that such an ambition is nigh on impossible.  This issue becomes particularly relevant too in light of Dr B’s evidence (paragraph 57.15) that it would be extremely difficult for M to adjust to change in the absence of cooperation from all relevant adults and in particular the parents;

   179.13.the mother’s proposal that M immediately live with her during the school week and with the father on weekends, being from the Friday to the Monday, indicates a significantly limited understanding of M’s needs imposed by his autism and his inability to accommodate sudden and significant change.

   179.14.the mother’s proposal further abrogates most of M’s care during the critical and very testing waking hours, to the father and M’s school;

   179.15.it was Dr B’s evidence that significant physical strength may well be needed to manage M’s behaviour and accommodate his needs as he grows older.  He said that autistic children regularly grow to be bigger and stronger than other children.  The father is a big strong man.  The issue of the capacity to physically control M is already becoming an issue with the reported violent behaviours and consequent injury perpetrated by M, both self inflicted and inflicted upon others including fit, healthy adult teachers, at his school.  As can be seen from the DVD’s which constitute Exhibit 3, the mother is already struggling at times to manage M’s strength;

   179.16.the father’s premises (as was the mother’s) were the subject of an occupational therapy home safety assessment.  Both premises were found to have required some minor modifications but were otherwise satisfactory;

   179.17.the father’s premises and surrounds are an integral part of M’s routine and wellbeing.

4. I am satisfied that it is entirely contrary to M’s best interests and in fact potentially dangerous to his health, development and wellbeing that in the foreseeable future he be moved from his father to live with his mother.  It is not a change supported by the evidence of Dr B or Ms H.  The level of change and the potential consequences are so significant and potentially severe for M that I consider it to be dangerous to do so.  It is inappropriate in the face of the evidence received in the trial of these proceedings, to experiment with M’s welfare by significantly affecting the environment, routine and structure which has been in place for so long.  This is especially so given the progress that was so recently demonstrated by M in 2009.  I am satisfied that it is simply not possible presently to replicate in the mother’s care, all of the features of constancy, routine and care provided by the father no matter how devoted to M’s care the mother may be.

Orders

1. I am satisfied, for the reasons outlined above, that M’s best interests will be served by him continuing to live with his father who should bear sole parental responsibility for him.  However, all of the other evidence, but particularly the evidence of Dr B and Ms H, is to the effect that M should continue to have a relationship which is as meaningful as possible given M’s autism, with his mother and with his siblings Q and L.  It was Ms H’s most recent evidence that M needs to be challenged but in a gradual, structured and supported way.  The gradual changes which would assist M in his adjustment and general development would include weekly time spent with his mother and two siblings.  A delay of a fortnight would not represent M’s best interests and would not assist him in recalling the events, activities and structures of the previous occasion.  Such times with his mother and siblings should not be too distant from each other.

2. Enormous difficulties exist though in predicting, and hence structuring, future alterations to M’s time to be spent with the mother and his siblings.  It is not possible, for instance, to order a gradually increasing regime of time with the mother or even predict what school holiday time might be best.  As the expert evidence indicates, change for M must be gradual and the effects of introduced change must be monitored and assessed before moving to the next stage.  That process of change has been commenced by the school.  The parents have been involved and invited to participate.  That is the best way and the only safe way for gradually increased change to be introduced and monitored.  It will necessarily be something for the parents and the school to agree upon and implement.  It is to be sincerely hoped that with the stresses and focus of litigation behind them, the parents can now move towards a cooperative, child focussed approach to M’s needs.

3. In previous orders, after hearing submissions, I imposed an injunction upon the parties from bringing M into contact with any of his siblings apart from Q and L.  However, he has a demonstrated good relationship with W and Y.  Given M’s need to accommodate constant but very gradual changes, I am satisfied that it would not represent his best interests to be shielded from his sister X and broader extended family members.  His best prospects of accommodating change will be within the bosom of extended family members.

1. Handovers have been a particular problem and are infected with the toxicity of the parties’ relationship.  Ms H, in her later evidence, indicated that the school bus could possibly be diverted to effect the handover between the parents.  However, in the absence of any evidence to the contrary, I assume that the school bus is not available for such a purpose on Saturdays.  Any such altered arrangements will have to be as part and parcel of the cooperative plans and management being brokered by M’s school and as part of any gradual change deemed appropriate for M’s development by the school.  I will make orders designed to promote such an approach.  Catholic Care (formerly Centacare) because of their past experiences may well not want anything to do with the family but if they do, handovers at their facility is a preferred option.

2. In my view, M’s best interests would also be served if the individuals and organisations who and which have had so much to do with the family and the plight of M and the other children, receive a copy of these Reasons in order that they may be made aware of all relevant material and the reasons behind this decision.  It may help them in future to structure appropriate programmes for M and avert further emotionally taxing litigation which has direct and indirect detrimental consequences for M.  In that way M may have his best chance of slow but steady progress with a broader engagement with all his family members and the community at large.  The father’s and the mother’s obvious love for M will be tested and measured against their capacity to communicate and cooperate civilly in maximising M’s interests and potential.

I certify that the preceding one hundred and eighty five (185) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Burr.

Associate: 

Date:  3 June 2010