Muling & Muling
[2007] FamCA 1238
•3 August 2007
FAMILY COURT OF AUSTRALIA
MULING & MULING [2007] FamCA 1238
FAMILY LAW – CHILDREN – Special needs child – Enmeshed relationship with mother – Separation anxiety – Improvement in mother/child relationship – Child able to live with both parents – Child’s best interests to live with mother but have increased time with father
Family Law Act 1975 (Cth) s 60CC
APPLICANT: Mrs Muling
RESPONDENT: Mr Muling
INDEPENDENT CHILDREN’S LAWYER: Mary-Ann Huth
FILE NUMBER: BRF 5348 of 2003
DATE DELIVERED: 3 August 2007
PLACE DELIVERED: Brisbane
JUDGMENT OF: O'Reilly J
HEARING DATE: 1, 2, 5 and 6 February, 21 March and 18 June 2007 REPRESENTATION
COUNSEL FOR THE APPLICANT: Mr Roser of Counsel in February 2007 and Mr McGregor of Counsel in June 2007
SOLICITORS FOR THE APPLICANT: Byrnes Lawyers
COUNSEL FOR THE RESPONDENT: Mr Slade Jones of Counsel
SOLICITORS FOR THE RESPONDENT: Rhonda Sheehy & Associates
INDEPENDENT CHILDREN’S
LAWYER’S COUNSEL:
Mr Jordan of Counsel on 1, 2, 5 and 6 February 2007
INDEPENDENT CHILDREN’S
LAWYER’S SOLICITOR:
Legal Aid Queensland Orders
Parental responsibility
1The parties have equal shared parental responsibility for the child … born on … April 2001 (the child).
Child spending time with the father
2The child spend time with the father:
(a)for all of the New South Wales gazetted school holidays except the Christmas school holidays;
(b)in the New South Wales gazetted Christmas school holidays the first half in the even years and the second half in the odd years;
(c)the fourth and seventh weekends in each of the child’s four school terms, from Friday at 8pm (or Thursday at 8pm if the Friday is a New South Wales public holiday) until Sunday at 2pm (or Monday at 2pm if the Monday is a New South Wales public holiday).
Child spending time with the mother
3The child spend all other time with the mother.
Changeovers
4Unless the parties otherwise agree in writing, all changeovers are to occur at …, B, New South Wales.
5In relation to any changeover agreed in writing to be by air travel, the party proposing the air travel is to pay for the child’s and his or her own air travel, and must accompany the child.
Telephone communication
6The child have telephone communication with the father:
(a)at about 7pm (New South Wales time) on each Wednesday when the child is spending time with the mother;
(b)at about 9am on the child’s birthday, the father’s birthday, Father’s Day, Christmas Day and Easter Sunday (in each case if the child is not already spending time with the father);
(c)at all other reasonable times should the child express the wish to have telephone communication with the father;
the calls on some occasions (as naturally may occur) to include the father’s partner Ms T, her children M and J and members of the father’s extended family if present.
7The child have telephone communication with the mother:
(a)at about 7pm (New South Wales time) on each Wednesday when the child is spending time with the father;
(b)at about 9am on the child’s birthday, the mother’s birthday, Mother’s Day, Christmas Day and Easter Sunday (in each case if the child is not already spending time with the mother);
(c)at all other reasonable times should the child express the wish to have telephone communication with the mother;
the calls on some occasions (as naturally may occur) to include members of the mother’s extended family if present.
8In relation to all telephone communication, the party with whom the child is spending time is to instigate the telephone calls on the child’s behalf.
Communication book
9The parties must use a communication book, to be established by the mother, to pass with the child in his travel bag, the communication book to be used by the parties only to communicate matters relating to the health and welfare of the child.
Non denigration
10The parties must not denigrate each other to or in the presence or hearing of the child.
Information
11The parties must keep each other informed as to:
(a)his and her residential address, landline and mobile telephone numbers;
(b)the name, address and telephone number of the child’s school; and
(c)the name, address and telephone number of any health or other practitioner or service provider treating or consulting with the child or advising in relation to the child.
Authorisation
12The parties must authorise any health or other practitioner or service provider treating or consulting with the child or advising in relation to the child to provide information and reports concerning the child to the other parent, at that parent’s request and expense, provided that this order is sufficient authorisation without further written authorisation by the mother or the father.
13The mother must authorise the child’s school to provide to the father information and reports concerning the child, school photographs, circulars, magazines and the like usually made available by the school to parents, at the father’s request and expense, provided that this order is sufficient authorisation without further written authorisation by the mother.
Medical emergency or serious accident
14The parties must notify each other immediately of any medical emergency or serious accident concerning the child and the name and address of any hospital to which the child may be admitted.
15Despite paragraphs 2 and 3 of these orders, either party may visit the child in the case of any such medical emergency, serious accident or hospitalisation.
Provision of material
16The mother must, within 14 days, provide to the child’s paediatrician a copy of the Reasons for Judgment, including these orders, and copies of the two reports by Dr W, psychiatrist, dated 20 June 2006 and 13 June 2007.
17If the mother should in the future make any notification to the Department of Community Services, or any other authority, she must, at the same time, provide to the Department or such other authority a copy of these Reasons for Judgment, including these orders, the name and address of the child’s paediatrician and copies of the two reports by Dr W, psychiatrist, dated 20 June 2006 and 13 June 2007.
Discharge of previous orders and undertakings
18All previous orders concerning the child are discharged, and all previous undertakings concerning the child are discharged.
Applications
19All other applications concerning the child are dismissed.
Independent children’s lawyer
20The independent children’s lawyer is discharged.
IT IS NOTED that publication of this judgment under the pseudonym Muling & Muling is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
FAMILY COURT OF AUSTRALIA AT FILE NUMBER: BRF 5348 of 2003
Mrs Muling Applicant
And
Mr Muling Respondent
REASONS FOR JUDGMENT
Overview
1These proceedings concern the parties’ child born in April 2001, now six years.
2The mother is 47 years. She lives in coastal New South Wales.
3The father is 37 years. He lives in a country town in south east Queensland.
4On 17 May 2004, final consent orders were made in the Federal Magistrates Court at Brisbane that the child reside with the mother and have contact with the father as may be agreed but failing agreement as specified in the order on a graduated basis (four Saturdays from 9am until 1pm followed by four Saturdays from 9am until 5pm) until the introduction of alternate weekend contact in July 2004 (Saturday at 9am until Sunday at 5pm for six occasions increasing in October 2004 to Friday at 5pm until Sunday at 5pm), Father’s Day from 9am until 5pm (if not a contact weekend) and on specified dates in the September/October 2004 and Christmas 2004 school holidays. The orders (par 12) contemplated the mother’s relocation to coastal New South Wales in January 2005, and specified that after the relocation there be contact with the father for all of the New South Wales gazetted school holidays except the Christmas holidays, which were to be shared equally (father first half in the even years and second half in the odd years), provided that pending the child commencing primary school in New South Wales the school holiday contact occur to coincide with the Queensland gazetted school holidays.
5The current proceedings were commenced by the mother by her application filed on 21 March 2005 (notably, only 10 months after the final consent orders made on 17 May 2004, and within two months of her relocation with the child to New South Wales), subsequently amended on 18 December 2006. In her application filed on 21 March 2005, the mother sought a final order that there be no contact between the child and the father, but that if the Court should determine there should be contact, it occur at H or M (apparently in New South Wales) for four hours on the first weekend of each month, to be supervised, with the supervision to be arranged by and paid for by the father, or otherwise as may be agreed by the parties in writing. In her amended application filed on 18 December 2006, the mother sought a final order that the child spend time with the father from 9am until 3pm on five consecutive days during the first week of the Easter, June/July and September/October New South Wales school holidays and five consecutive days during the third week of the Christmas New South Wales school holidays, to be supervised by a person from C Centre qualified to work with children with autism, the cost of the supervision to be paid by the father and several other specific orders (numbering 19 in all) including telephone communication between the child and the father (par 13).
6In response to the mother’s application, by his response filed on 13 April 2005, subsequently amended on 27 October 2006, the father sought a final order that the child live with him. In his response filed on 13 April 2005, the father originally sought that the child have supervised contact with the mother between 9am and 5pm on the last Sunday of each month at a northern New South Wales Children’s Contact Centre. In his amended response filed on 27 October 2006, the father sought that the child spend time with and communicate with the mother as may be agreed but failing agreement during the Queensland gazetted school holidays, in effect to mirror in reverse the orders made on 17 May 2004, and several other specific orders (numbering 12 in all) including telephone communication between the child and the mother (pars 4(b) and 5).
7On 15 December 2005, Dr F, consulting psychologist, diagnosed the child (then 4 years and 8 months) as having characteristics typical of those shown in children who qualify under the criteria of the Autistic Spectrum; that another childhood disorder, Fragile X Syndrome, contained behavioural symptoms that might also apply to the child; and that other genetic disorders, such as Smith-Magenis Syndrome, may be implicated. Dr F observed, from his clinical experience, that behaviour shown by the child under formal cognitive testing associated with intellectual deficits is frequently found in children who have suffered hypoxia prior to or following birth, and referred to research into autism which has implicated hyper-oxygenation as a cause of autistic behaviour, amongst other implications, including limbic damage and tuberous sclerosis.
8There is evidence (see, for example, the report dated 4 March 2005 by Dr S, clinical psychologist) that the child was “born with his umbilical cord wrapped around his neck” and that the child’s “early gross motor development was impaired”.
9Dr F concluded (p 2 of his report) the child “meets the criteria for Autistic Disorder” and that an “appropriate medical referee” would probably concur that the child “would fall within the Autistic Spectrum of Disorders”, offering that, as a result of his own investigation, using the Autistic Spectrum Screening Questionnaire, the indication was that the child’s described behaviours were “consistent with the Autistic Spectrum diagnosis”.
10More recently, Dr W, child adolescent and adult psychiatrist engaged by the independent children’s lawyer, prepared a report dated 20 June 2006 (interviews in December 2005 and January 2006) in which he diagnosed the child (p 12) as meeting DSM4’s diagnostic criteria for a Pervasive Developmental Disorder such as Autism or less likely Asperger’s Disorder; and as showing early signs and symptoms of the externalising disorders of childhood such as Attention Deficit Hyperactivity Disorder, Oppositional Defiant Disorder and Conduct Disorder. Dr W said (p 12):
… This is complicated by his comorbid Autistic Spectrum Disorder and his overly close, enmeshed relationship with his single mother. [The child] is excessively anxious and concerned about separating from his mother. He becomes distress[ed] when separation from his mother, his major attachment figure, occurs or is anticipated, is fearful of being alone at home to the point that he insists on showering and going to the toilet with his mother and apparently sleeps with her. As such he would also meet the DSM4 diagnostic criteria for Separation Disorder. [The child’s] prognosis is poor if he continues his current life trajectory.
[bold emphasis and underscoring added]
11It is necessary to observe, immediately, that the mother’s evidence was that the child does not sleep with her all of the time, but only when the child returns from spending time with the father “for a week or so, until he settles down”.
12In his conclusion, Dr W said (pp 14-15):
[The child] is a vulnerable boy. He requires firm consistent boundaries and limit setting to contain his behaviour. He needs to have a relationship with both of his parents. [The mother] has provided the vast majority of his care to the present day to the point that they have an over enmeshed pathological relationship. [The father] works long hours, lives with two step children who have special needs and has little understanding of his son’s problems blaming them on his ex-wife. [The child’s] interests will be best served by living with his mother and having frequent short periods of access with his father. This would only work if [the mother] sought professional help to deal with her anxieties and relationship with her son. If she were unable to do this or to actively support and encourage access between [the child] and his father then serious consideration would need to be given to the possibility of relocating [the child] to live with his father permanently.
[bold emphasis and underscoring added]
13However, as will be seen, in a further report dated 13 June 2007, Dr W reported significant improvement in the child.
Relevant background facts
14The father and the mother met in about October 1997 and married in October 1998. Final separation occurred in January 2003, when the child was not yet two years, being then about 20 months.
15Despite the parties’ marriage in October 1998, they did not live together until January 2001, a few months before the child’s birth. Their marriage, it seems, prior to that time, was conducted largely by weekend visits by one to the other’s premises, the father then living in C in country south-east Queensland and the mother on the Sunshine Coast.
16The mother was aged about 36 when the parties’ relationship commenced, and about 37 when the parties married. According to the father (affidavit, par 11) the mother said to him to the effect that her “biological clock” was ticking, and that she wanted children “straight away”. The mother, at that time, leased premises on the Sunshine Coast. However, when the lease expired, despite the circumstance that the parties were then married, the mother did not move in with the father, but stated her intention to live with an aunt until she fell pregnant. The mother moved into the father’s premises in C in about January 2001, a few months before the child’s birth. The father says that the mother conceived in July 2000 and that after the conception the mother “ceased all sexual relations with me” (father’s affidavit, pars 9-15).
17During the parties’ relationship and marriage, the father was the “breadwinner”, and the mother the child’s primary carer.
18The parties resided together until January 2003, when the child, as I have mentioned, was about 20 months. The mother terminated the parties’ relationship, for the reasons set out in her affidavit, namely a breakdown in the relationship which she attributes to the father giving priority to his business; his rendering little assistance to her in relation to the child; that he was often “moody, angry and bad-tempered” causing her to be fearful of him; her increased feelings of being “isolated and alone”; that the father “on several occasions” was “walking into” her and “pushing” her, making her feel “scared”; and an alleged infidelity (mother’s affidavit, pars 22-76).
19The proceedings which culminated in the final consent orders made on 17 May 2004 (referred to above) were instituted during 2003 by the father, and were the subject of several interim orders (20 October 2003, 8 December 2003, 9 January 2004 and 26 February 2004) before the final consent orders made on 17 May 2004.
20In the current proceedings, procedural and other orders were made on 16 May 2005, 16 August 2005, 27 September 2005, 21 August 2006, 15 September 2006 and 11 December 2006.
21The mother’s circumstances now are that she lives in coastal New South Wales with the child, who has always lived with her. At the commencement of the trial, the mother had not repartnered. However, by May 2007 she had started a new relationship. The mother’s extended family lives in the coastal region, where the mother was raised. She and the child have the support of her extended family in that region. The mother’s niece and the child’s cousin, H, resides with them about two nights in each week. At the commencement of the trial, the mother was in receipt of Centrelink benefits. Before the child was born, she enjoyed a career with a major company. By May 2007, she had resumed part time work with that company and also in her family’s business.
22The father has repartnered and lives in a committed and stable relationship with Ms T and her two children of a former relationship, M, 18 years and J, 11 years. At the commencement of the trial, M was about to commence tertiary studies in Brisbane and to move away from the family home. J attends school in C. J is epileptic and, as such, has special needs. M also has special needs. The father owns and operates a transport business in C. He has two trucks, which are operated by contract drivers, so that in order to be available for the child he is able to limit and be flexible as to his own “on call” work related to the business. The father also conducts a trade in C.
Procedural matters
23On the first day of the trial, I raised with Counsel, in the context of s 60CC(3)(d) of the Family Law Act 1975, that having regard to the child’s described behavioural difficulties, primary attachment to the mother and medical diagnosis of autism, there was no expert evidence as to the likely impact on the child of a change in his circumstances to allow me properly to consider the father’s application that the child should live with him (for example, likely impact on the child of separation from the mother, his primary carer and primary attachment figure; change from New South Wales to Queensland; change of the child’s health carers; change of school; and change to a new household with the father’s new partner and her children; so that, in short, there was a “gap” in the evidence making it impossible for me properly to consider the father’s case for a change of residence to his household. At that early stage (the first day of the trial) I also raised for Counsels’ consideration that it seemed that the mother may not have heeded Dr W’s call to her that the child’s best interests would be served by living with her, but that this would work only if she sought professional help to deal with her anxieties and her relationship with the child, as there seemed to be no evidence that she had done so; and further that, on the evidence, it seemed that the mother had not (pursuant to undertaking C prefacing the final consent orders made on 17 May 2004), attended an anger management course, which caused concern as to the mother’s ability to accept and follow professional advice, in the child’s best interests, and abide Court undertakings. In this context, I raised for Counsels’ consideration the question whether, without progressing the trial further, I should make an interim order to allow the mother the opportunity to heed Dr W’s advice and comply with her undertaking and for there to be a further expert report in about 9 months as to the likely effect on the child then of a change of residence.
24However, after argument, I was persuaded by Counsel for the independent children’s lawyer and the father that the child’s circumstances and needs should be determined without delay, on the basis that Dr W (who was scheduled to appear in the afternoon of the second day of the trial) would be asked to give oral evidence in relation to the likely effect on the child of a change to the father’s household, so that the “gap” in the evidence was capable of being met.
25Further, the mother subsequently adduced evidence from Dr F (by a further affidavit filed by leave on 5 February 2007, the third day of the trial) annexing a report dated 2 February 2007 upon which the mother relied to show that she had complied with Dr W’s advice to her.
26At the commencement of the second day of the trial, the mother, by her Counsel Mr Roser, applied for an adjournment on various bases, which I need not presently set out, but centrally based on the circumstance that Dr W, as the only expert witness, had not had interviews with the parties since December 2005/January 2006 (although his report subsequently did not issue until 20 June 2006); had not interviewed the mother with the child (whereas he had interviewed the father with the child); there was no evidence as to the child’s ability to express meaningful wishes or views, especially in the context of his diagnosed autism; and no expert evidence as to whether, in relation to various things which the child had disclosed to the mother and some of his carers (including physical abuse and sexual abuse, to which I will refer below) he had the ability to fabricate stories. Mr Roser submitted that the Court “could not comfortably or confidently assess the statutory criteria”, having regard to these deficiencies in the evidence, and that it would be “sensible” for Dr W to be given the opportunity “to revise his opinion in light of the situation now”. Mr Roser referred to yet a further diagnosis of the child by a psychologist named U, which, he said, it would be appropriate for Dr W to consider. After hearing preliminary submissions by Mr Roser, I ruled that the matter of the mother’s application for an adjournment of the trial should be stood down until the conclusion of Dr W’s evidence, in relation to which all of these matters could be canvassed, Dr W’s evidence being scheduled for 2.30 that afternoon (as an interposed witness, by the agreement of all Counsel).
27At the conclusion of Dr W’s evidence, I heard full submissions by all Counsel and determined against the mother’s application for an adjournment of the trial, for the reasons which I then gave (after a short adjournment to consider the submissions and formulate brief reasons).
28The second day of the trial was a Friday, which concluded after Court hours, late in the day.
29At the commencement of the third day of the trial (a Monday) I gave by way of addendum supplementary reasons for my refusal of the mother’s application for an adjournment; and, during Mr Roser’s final submissions on the afternoon of the fourth day of the trial, arising out of argument, I reiterated some of the reasons already stated, and reinforced those reasons with further observations.
30Thus, in effect, my Reasons for Judgment in relation to the refusal of the mother’s application for an adjournment of the trial comprised three parts: (1) the reasons given ex tempore on Friday afternoon 2 February 2007; (2) the addendum to the reasons given ex tempore on Monday morning 5 February 2007; and (3) the further reasons given ex tempore during argument on Tuesday afternoon 6 February 2007; all of which should be read together.
31It is relevant also to mention that, during argument, Mr Roser of Counsel, for the mother, raised that he may need to consider calling evidence in rebuttal to Dr W’s oral evidence, in particular in relation to the child’s ability to cope with any change of residence, but that ultimately Mr Roser made no application to adduce evidence in rebuttal at the trial. Mr Roser did however during his final submissions continue to urge that there should not be a decision until there be an opportunity for current assessment by Dr W and a further report, pointing in particular to the circumstance that the interviews in December 2005/January 2006 occurred six months before the release of Dr W’s report, and that there had been a “further delay” of more than six months between the release of the report and the trial.
32In the course of preparing my Reasons for Judgment I was persuaded, by a close examination of Dr W’s oral evidence, and the force of Mr Roser’s submission, that it would be inappropriate to proceed to determine the question of the child’s best interests and that indeed, on the state of the expert evidence, I was not able to determine that without the benefit of further interviews by Dr W and a further report especially as Dr W’s oral evidence, in important respects, was expressed with considerable reservation and qualification, for example (all references are to Transcript 2 February 2007):
·The circumstance that he had not seen the parties or the child for a year made it “very difficult” to abide his recommendations in his existing report (T 7/40-50)
·“Because it’s been a year – it is more difficult” (T 8/10; T 8/18-24)
·As to how the child would cope with a change of residence there was “no clear answer” (T 8/41) and “any comment I make is prefaced on the fact that I saw them all a year ago” (T 9/10-12)
·As to whether the child would “settle in” with the father, Dr W said that the initial phase would be difficult “but I’m sure he – well I’m not sure, but my clinical opinion from what I saw a year ago is he would settle in quite nicely … so long as dad was doing the appropriate things (T 9/24-27)
·To see the child again would “add weight because it’s been a year since I’ve seen him before” (T 14/32-33)
·As to Dr W’s view that the mother’s relationship with the child was an overly enmeshed relationship “it was happening a year ago” (T 16/15-25)
·As to the child’s separation anxiety if not with the mother “now that may not be happening any more” (T 16/45-47)
·It would be “easier” to express a confident opinion if Dr W had some current experience of assessing the individuals involved (T 19/20-30)
·Dr W’s concerns expressed in his existing report were not currently expressed concerns (T 19/40 – T 20/20) and he was unaware whether the mother’s anxiety currently was any different or worse (T 20/15-20)
·From Dr W’s perspective, as to whether it would be ideal for Dr W to “see what’s happened” since he last saw the parties and the child “it’d certainly add some evidence” (T 27/4-6).
33In these circumstances, on 20 March 2007 I caused the Associate to send an email to the legal representatives (ex 5) which resulted in a short procedural listing on 21 March 2007 and the making of procedural orders on that date to facilitate further interviews and a further report, with arrangements made for Dr W to interview the mother and the child on 10 May 2007 and the father and the child on 24 May 2007 after the child had spent two weeks with the father, with relisting for further hearing on 18 June 2007.
34Accordingly, Dr W’s second report dated 13 June 2007 was received, and the matter resumed on 18 June 2007.
Principles relevant to this application
Children’s best interests paramount
35Pursuant to s 60CA of the Family Law Act 1975, in determining whether and if so what parenting orders in relation to a child should be made, the Court must regard the best interests of the child as the paramount consideration.
Objects and principles underlying objects
36Section 60B of the Act provides that the objects of Part VII of the Act, which relates to children, are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children;
and that the principles underlying the objects are that, unless it would be contrary to a child’s interests:
·children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
·children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
·parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·parents should agree about the future parenting of their children; and
·children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Determining what is in a child’s best interests
37Section 60CC of the Act provides that the Court must consider the matters set out in s 60CC(2) and (3), described as the “primary considerations” and the “additional considerations”.
38The primary considerations are:
·the benefit to the child of having a meaningful relationship with both of the child’s parents; and
·the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
39The additional considerations are too numerous to set out. However, I will make specific reference to them below, to the extent that each may be relevant.
Parental responsibility
40Under s 61C of the Act, subject to any orders of the Court, each of the child’s parents has parental responsibility for that child.
41Under s 61DA of the Act, the Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility for the child unless there are reasonable grounds to believe that a parent of the child or a person who lives with that parent has engaged in abuse of the child or another child who, at the time, was a member of that parent’s family or that other person’s family, or family violence.
Equal time/substantial and significant time
42Under s 65DAA of the Act, if a parenting order provides or is to provide that a child’s parents are to have equal shared parental responsibility for the child:
·the Court must consider whether the child spending equal time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making an order to provide for the child to spend equal time with each of the parents; and
·if an equal time order is not made or to be made the Court must consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making such an order.
43Section 65DAA(3) and (4) of the Act provide that a child will be taken to spend substantial and significant time with a parent only if the time the child spends with the parent includes both:
·days that fall on weekends and holidays; and
·days that do not fall on weekends and holidays;
and:
·allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child; and
·allows the child to be involved in occasions and events that are of special significance to the parent,
although regard may be had to other matters.
44Section 65DAA(5) of the Act provides matters to which the Court must have regard in determining whether it is reasonably practicable for a child to spend equal time or substantial and significant time with each of the child’s parents including:
·how far apart the parents live from each other; and
·the parents’ current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each of the parents; and
·the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
·the impact that an arrangement of that kind would have on the child; and
·such other matters as the Court considers relevant.
Prior parenting plans
45Section 65DAB of the Act provides that the Court is to have regard to the terms of the most recent parenting plan (if any) that has been entered into between the child’s parents if doing so would be in the child’s best interests.
Other provisions
46The Act provides several other provisions which may apply in a particular case and to which reference will be made if applicable in this particular case.
Weight
47Matters affecting weight are primarily for the trial Judge to attribute in the exercise of his or her discretion, subject to any error of law in that exercise.
The evidence
Introduction
48The mother relied upon the following affidavit evidence: (1) her affidavit filed on 27 November 2006; (2) Dr F’s affidavit filed on 8 December 2006; (3) Dr S’s affidavit filed on 14 December 2006; (4) the affidavits of Ms G and Ms D filed on 13 and 14 December 2006 respectively; (5) the affidavit of Ms N filed on 29 December 2006; and (6) the further affidavit of Dr F filed by leave during the hearing on 5 February 2007.
49The father relied upon the following affidavit evidence: (1) his affidavit filed on 27 October 2006; (2) the affidavit of his partner Ms T filed on 15 November 2006; and (3) the family report by Ms A, social worker, annexure A to the mother’s affidavit, which report had been prepared in relation to the parties’ earlier proceedings in the Federal Magistrates Court.
50The independent children’s lawyer relied upon the report dated 20 June 2006 of Dr W, child, adolescent and adult psychiatrist, annexed to his affidavit filed on 27 June 2006, and his further report dated 13 June 2007 annexed to his affidavit filed on 18 June 2007.
51In addition, there were documentary exhibits, numbered ex 1-6.
52In the particular circumstances of this case, I do not find it necessary to refer in detail to the parties’ affidavit evidence, their oral evidence, cross examination, nor the documentary exhibits and will refer only to selected parts of the evidence. In particular, I do not propose to refer in detail to the extensive allegations by the mother of disclosures by the child of mistreatment of him in the father’s home, or while in the father’s care, which are numerous, but will refer to selected examples only. In the proper discharge of my function, however, I have read and taken into account all of the evidence, and in particular all of the reported disclosures by the child of mistreatment in the father’s home or while in his care.
53The mother’s evidence, both in her affidavit and under cross examination, showed genuine concern for the child’s welfare and best interests, despite attack in cross examination as to possible ill motive or lack of judgment on her part in the commencement of the current proceedings. Similarly, the father’s evidence, both in his affidavit and under cross examination, showed genuine concern for the child’s welfare and best interests, despite attack in cross examination as to the child’s disclosures, his own inexperience with the child and the child’s particular difficulties.
The mother’s case
54The mother’s affidavit referred to numerous disclosures made by the child to her that:
·The father, while the child had been on contact with him, had hit the child, including with a hammer, all over the child’s body
·The father had put the child in a rubbish bin
·The father had pushed the child out of a caravan
·The use of inappropriate language by the father to or in front of the child (for example, “fuck”, “shit” and “piss off”)
·The father had said to the child things like “Mummy’s fucked; Mummy’s dead”
·The father had said to the child that he would cut the mother around the neck with a knife
·The father’s partner had said she would “kill Mummy”
·The father had called the child a girl
·The father’s partner had touched the child’s penis
·“Daddy does wee in [the father’s partner’s] mouth”
·“Daddy hurts me”
·“[The father’s partner] does this to my penis, Mummy”, indicating the holding of his penis “on either side”
·“[The father’s partner] kisses my penis and Daddy kisses my penis”
·“Daddy puts his finger in my bottom”
·“[The father’s partner] does the same thing”.
55The evidence included that there had been some 28 notifications by the mother and the child’s carers to the authorities, including the Department of Community Services, New South Wales, in the 13 months between 21 February 2005 and 13 March 2006, of which the mother said she was responsible for “maybe 10 or 15” of the notifications. The other notifications, according to the mother, were made by the child’s preschool teacher, counsellor, speech therapist, the local Hospital and “maybe friends who had witnessed things”. The mother said that she had not asked any of these people or organisations to make notifications.
56The report of Dr F in relation to the child dated 15 December 2005 (to which I have referred above) was requested by the Department of Community Services, New South Wales, to provide a formal diagnosis “of the condition that afflicts” the child. I have referred already to the salient parts of Dr F’s report. Dr F’s opinion (p 2 of his report) included that the child “has special needs that will not be met within the standard classrooms and playground environments” and that it is “imperative that he has special arrangements made for his support and care in those environments”.
57Prior to Dr F’s report, Dr S had provided a report concerning the child dated 4 March 2005 (to which I have also referred above).
58Ms G, clinical psychologist, and Ms D, psychologist, provided a joint report dated 31 March 2006 in relation to the child, both being attached to an autism diagnostic service in New South Wales, after referral by the mother. Ms G and Ms D, in their joint report, referred to Dr F’s report (referred to above) and the child’s history. Their assessment (after extensive testing of the child as set out in the report) concluded (p 9) that the child’s presentation is “best encapsulated by a diagnosis of Pervasive Developmental Disorder – Not Otherwise Specified or Atypical Autistic Disorder (299.8 DSM-IV-TR)”; and made recommendations for the child’s management.
59Ms N, a Lifeline counsellor engaged by the mother, was a most impressive witness, with an extensive curriculum vitae in child care. Ms N met and commenced work with the child in February 2005, continuing until early 2006. Ms N is to be credited (her affidavit, pars 25 and 26) with first raising the question of the child’s “possible autism”, which resulted in the mother, to her credit, taking the child to a Dr L, paediatrician (who did not provide an affidavit or report) and subsequently to Dr F and Mss G and D.
60According to the mother’s witnesses, whom I have mentioned, namely Ms N, Dr F, Dr S and Mss G and D, the child’s specific difficulties (leaving aside, for the moment, his diagnosis) include the following:
· Retarded early gross motor development
· Poor coordination
· Limited empathic feelings
· Speech delays
· Unusual behaviours
· Aggression
· Anger
· Anxiety
· Poor social skills
· Delayed milestones
· Lack of cooperative play with other children, preferring to “go off on his own”
· Compulsive ritualistic behaviour and traits
· Rigid and inflexible patterns of behaviour
· Disinterest in completing activities
· Unusual sensory interests
· Obsession and fixation with things
· Inappropriate laughter
· Limited imaginative play
·Preoccupation with objects, including smelling objects, lining up objects and wrapping up objects
·Hypersensitivity
·Speech and language difficulties
·Inability to process instructions effectively
·Inappropriate urination and soiling
·Uncontrollable screaming
·Inconsolable crying
·Regressive behaviour
·Slow cognitive and other development.
61Dr K, general practitioner, did not provide an affidavit, however a brief report by him is annexed to the mother’s affidavit. Dr K was consulted by the mother in relation to the child in July 2005, concerning some injuries with which the child had returned from contact with the father during the June/July 2005 school holidays. At that stage, the father had included in the communication book (part of the consent orders made on 17 May 2004) that the child had fallen backwards off a chair. Dr K concluded, upon examination of the child’s injuries (minor bruising), that the injuries were unlikely to have been so caused.
62Ms A, social worker, had prepared a family report dated 22 March 2004 in relation to the then current proceedings in the Federal Magistrates Court which had resulted in the consent orders made on 17 May 2004. The mother did not provide an affidavit by Ms A but rather annexed Ms A’s report to her own affidavit. (Ms A, as at 22 March 2004, had recommended that the child live with the mother and have contact with the father largely as represented in the consent orders made on 17 May 2004).
63In cross examination, the mother explained her genuine concern in relation to the child’s disclosures to her, all of which she appeared to believe. She resisted cross examination directed to questioning whether some of the disclosures, to a discerning parent, ought to have appeared fanciful. For example, it was put that the child’s disclosure that he had been hit with a hammer “all over his body” may have been an unlikely occurrence as the child did not present with bruises or injuries to reflect such an incident; and that if the father and his partner had digitally penetrated the child’s anus (“puts his finger in my bottom” and that the father’s partner “does the same thing”), there may have been some indicia of injury to the child’s anus. I do not find it necessary to refer to the extensive cross examination of the mother as to such matters. It is sufficient to observe that Dr W concluded (first report, p 14), that (at least at the date of that report) the mother “holds the belief structure” that the child had been abused by the father.
64The mother was asked, in cross examination, whether she had ever thought that she was “overly close” or “too close” to the child, to which she responded firmly “No!”
65The mother was asked, in cross examination, what she proposed in relation to the child spending time with her, if I should order in the child’s best interests that he live with the father. The mother initially was unable to answer, being plainly overwhelmed by that prospect, which she appeared not to have considered as a possible outcome of the proceedings which she had commenced. In re-examination however, the mother said that if the child were to live with the father “I would be very upset” adding “[the child] would too”.
66The mother’s evidence, generally, was that at all times she has acted promptly in relation to the child’s difficulties and had sought expert assistance, put in train initially upon Ms N’s advice, and subsequently followed all advice given to her by the persons she consulted.
67Although her application and amended application sought that there be no contact or alternatively only limited and supervised day contact with the father (see par 5 above) in her oral evidence the mother said that in her view the time the child spends with the father should be supervised initially until the father “has an understanding of autism” and until the child and the father could “establish a relationship”.
68The mother was challenged that she had not followed Dr W’s call (see the extract set out above at par 12) to the effect that whilst it would be in the child’s best interests to live with the mother, this would work only if she “sought professional help to deal with her anxieties and relationship with her son”. On the first day of the trial, the mother said to the effect that she had not sought such professional help. However, when her cross examination resumed on the morning of the second day of the trial, she said she had sought such professional help by consulting Dr F some four or five times in relation to her anxiety and her parenting skills, and that Dr F had written a report but she did not have a copy. The mother said that Dr F had said to her that she “no longer was required to see him”. On the third day of the trial Mr Roser of Counsel, for the mother, was given leave to read and file a further affidavit of Dr F, which annexed a report dated 2 February 2007 to the effect that “last year” (that is, during 2006) while he was counselling the mother “concerning her son, [the child]” he was aware that “there may have been some attempt to describe her as an inadequate, or possibly disordered, mother, and that her disorder may have been responsible for [the child’s] behaviour”, so he suggested to the mother that it would be sensible to have an objective assessment of her personality adjustment “should her temperament ever be raised as the reason for [the child’s] disturbing behaviour” and that the mother had agreed to such assessment. Dr F’s report otherwise described the process of the assessment and concluded with the following opinion:
[The mother] has convinced me, both from her conversation and her results in this assessment, that she is a concerned and very caring mother who is coping remarkably well with the trauma of family disruption, with the obligations and challenges associated with a disturbed son, with very little support from a family, and with allegations from [the child’s] father that she is the cause of their son’s disturbing behaviour. I could find no evidence, from clinical observation or from objective assessment, that her natural concern and understanding for [the child] was either abnormal, or harmful to [the child].
[bold emphasis added]
69The mother said that her consultation with Dr F, and the assessment which he undertook, occurred in about September 2006, and that she had told Dr F about Dr W’s advice but had not given Dr F a copy of Dr W’s report dated 20 June 2006. Initially the mother said she had not told Dr F about Dr W’s report and advice, but subsequently said that she had told Dr F that Dr W had recommended that she have “assistance concerning her high anxiety levels”, and that Dr W had recommended that she seek professional help to deal with her anxieties and her relationship with the child.
70In cross examination, when asked why the mother had not said on the previous day, when given the opportunity, that she had followed Dr W’s advice, the mother said that she had been “nervous” in the witness box on the previous day and “I am today too”, adding “it’s all like a blur”, then “not like a blur”.
71Unfortunately, for the mother, there are some adverse observations which need to be made in relation to her credibility. I will refer to only four examples.
72First, I have referred already to the circumstance that the mother, pursuant to undertaking C prefacing the final consent orders made on 17 May 2004, had not attended an anger management course. Initially, when challenged as to why she had not complied with the undertaking, the mother said that she “did not know” about any undertakings. However, when challenged with the mother’s signed undertaking dated on the same date, 17 May 2004 (ex 1), the mother changed her evidence, acknowledging that she did know about the undertaking, but said “I didn’t find anywhere to attend”.
73Secondly, the mother was asked about an allegation (her affidavit, par 152) that the child had been “crying and hysterical for over two hours” (about a missing toy horse which he had left with the father after contact). When it was put to her that if she had appropriate parenting skills she may have been able to distract the child so that he was not “crying and hysterical for over two hours”, the mother changed her evidence and said that, in a shorter time than two hours she had “calmed him down”.
74Thirdly, in relation to the mother’s allegations in her affidavit of past violence to her by the father (see her affidavit, par 66), and her description of the father on several occasions “walking into” and “pushing” her making her feel “scared” while the parties were still together, the mother was referred, in cross examination, to par 7.3 of Ms A’s report dated 22 March 2004, which there is no reason to doubt:
[The mother] said that there was no violence in the relationship and [the father] was not aggressive to her, although she alleged that he could become aggressive to his customers. …
75Fourthly, when challenged as to her ability as a parent to encourage and foster a relationship between the child and the father, the mother was asked how she felt about the child spending time with the father, to which she responded to the effect “whatever time the father can and would like to spend with him”, which, plainly enough, is inconsistent with her application and amended application that there be no contact or alternatively that the time be limited to day time and be supervised; and inconsistent also with her oral evidence at the trial that in her view the supervision should continue until the father “has an understanding of autism” and that the child and the father “can establish a relationship”.
76In other parts, the mother’s evidence was confusing. For example, as to her motive in commencing the fresh proceedings only 10 months after the final consent orders made on 17 May 2004 the mother said (affidavit, par 103), that after the conclusion of the first period of overnight contact pursuant to the orders the child had said that the father had hit him and that the father’s partner had also hit him and that in the days that followed the child had pushed, hit and yelled at the mother. However, when the mother was asked in cross examination whether it is “her case” that the child’s behavioural problems are caused by the father, she responded that this is not so. When asked, as a consequence, why she sought an order that the child’s time spent with the father be limited to the day time and be supervised, the mother was unable to respond (other than, as I have said, in a different part of her evidence to the effect that the supervision should continue until the father has an understanding of autism and the father and the child can establish a relationship). When asked if it is her view that the father affects the child’s behaviour, the mother said to the effect “I don’t know, I’m not there”.
77As to the current arrangements for the child, the mother said that the child had just commenced the kindergarten year at a local school in coastal New South Wales (which the mother explained is the first year of primary school in New South Wales), which school has the benefit of special education facilities, and relied on the circumstance that all of the child’s current carers are in New South Wales (apparently a general practitioner, a paediatrician, a speech therapist, an occupational therapist, a Lifeline counsellor and several others).
78The mother expressed concern that, if the child should live with the father, he would not be able to care adequately for the child’s special needs largely through lack of experience with the child’s special needs and lack of insight into those needs and would not be able to care for the child personally because of work commitments.
The father’s case
79The father’s affidavit referred to the circumstance that, after the final separation in January 2003, when the mother left the former matrimonial home with the child, he did not see the child until November 2003, some 10 months later, pursuant to the proceedings which he had instituted in the Federal Magistrates Court, initially returnable in October 2003.
80The father said that, despite par 7 of the consent orders made on 17 May 2004, the mother had not (by the means of a communication book), notified him of the names, addresses and contact telephone numbers of all of the medical/specialist practitioners, educational service providers and child care workers involved with the child from time to time, so that they may liaise directly with him at his request and expense. The consequence, the father said, was that he was unaware of the child’s involvement with Ms N, Dr F, Dr K, Dr S, Dr L or Mss G and D until about April 2006 (father’s affidavit, par 88, entry for 3 April 2006). As I recall the father’s evidence, he was unaware of the report by Mss G and D until late 2006, perhaps September 2006, which was after the receipt of Dr W’s report in about June 2006. He said in his oral evidence “if the mother was aware of a diagnosis of autism before June 2006, she did not tell me”.
81The father’s evidence included reference to various activities in which he has engaged the child while on holiday contact pursuant to the consent orders made on 17 May 2004, including water skiing, camping, cooking marshmallows on a camp fire, four wheel driving, cricket, playing ball, flying kites, bushwalking, map reading (while on a camping trip) being with lots of animals (“he loves animals”), casting fishing rods and catching soldier crabs (father’s affidavit, pars 90(e), (f), (g), (i)). He said that the child plays a lot with his partner’s child J, with whom the child has become “the best of buddies” (father’s affidavit, par 90(o)).
82He said that when the child would arrive for the holidays he would be “physically lethargic”, but by the end of the holidays “active and running around” and that he finds the child to be “extremely healthy” (pars 90(e), (f)).
83The father’s affidavit explained in detail incidents relating to the child’s particular difficulties and needs, and his handling of them (see, generally, the whole of par 90).
84The father said that he accepts Dr W’s diagnosis of the child’s autism. He said however that although the child may have “the diagnosis” of autism, in his view it is the child’s “specific and discrete difficulties” in the spectrum which need to be met on the daily basis, rather than his “labelised” diagnosis. He said he had undertaken internet research on autism, purchased a book “Parenting Children with Autism” and become aware of Autism Australia which he said will be able to offer assistance to him.
85The father said in relation to the child’s needs, having regard to his age, that in his opinion par 4(e)(viii) of the existing consent orders, relating to telephone communication, requiring the child to answer the telephone, is inappropriate for the child as “anyone” could coincidentally be a caller at the appointed telephone communication time, so that in his view it is more appropriate that the parent with whom the child is at any arranged time for telephone communication should instigate the call on the child’s behalf.
86The father referred to the extensive number of notifications made by the mother and the child’s carers to the Department of Community Services, New South Wales, and other authorities and said that the child had disclosed to him such things as (father’s affidavit, par 88):
·“Mummy says I don’t have to see you anymore”
·The child, having previously expressed sincere enthusiasm to the father in relation to the 2005 Christmas school holidays and undertaking water skiing and boat riding, said emphatically to the father, when telephoned in November 2005 “I have my boat and I am not going to see you”
·When the father said to the child (September/October school holidays 2006) “It is okay to talk to Daddy on the phone when you ring”, the child’s response was of crying and saying to the father “I can’t. Mummy gets angry”
·“My mum said I hate going on holidays with you but I think she is playing tricks with me”.
87The father said further that:
·During the Christmas 2005 school holidays, while the child was with the father, and exercising telephone communication with the mother, the child started to cry and the mother subsequently lodged a complaint with “Crisis Care” resulting in a police officer telephoning the father
·Contrary to par 4(e)(viii) of the final consent orders made on 17 May 2004 that for telephone communication between him and the child the child be available to answer the call at the time specified “9 times out of 10” telephone communication “just did not occur” and when it did occur “the phone call was terminated”
·On one occasion of telephone communication when the father said to the child “When we are finished speaking, we will say goodbye and then you can hang up” the child responded “I can’t do that cause my Mum has a special saucepan and when I hang you up, I have to put the phone down”
·On other occasions contrary to the Court orders the mother would answer the telephone with the father hearing the child in the background saying “Is that Dad? Can I speak to Dad?”, there then being quiet, with the child then speaking to the father on the telephone “in a very aggressive manner” and saying things to the father such as “You are shit”, “Fuck off”, “You’re fired” and “Shut up”, each such call lasting no more than about 30 seconds.
88As to the child’s disclosures to the mother that the father and the father’s partner have hit the child, the father said that he has “smacked the child on the bottom when he is naughty” (affidavit, par 88) but, in his oral evidence, explained that he has only smacked the child in extreme circumstances, for example, on one occasion when the child was about to run onto a road with oncoming traffic, there being no other resort to grab the child’s attention to prevent him from imminent danger. The father said, candidly, that he has smacked the child on the bottom on about “one or two occasions” in each holiday visit, but only when other means of dealing with the child’s behaviour have been exhausted. He said that he has never smacked the child on his “bare bottom”, but “through his clothes”, describing the smacks as “more a flick of the wrist”, “not a golf swing”, and never so as to inflict pain. The father said that “often the warning of a smack is enough”.
89The father denied, categorically, that he has sexually abused the child. He explained (affidavit, par 90(c)) that as a male child, he has taught the child how to urinate in a toilet bowl by the “peek-a-boo” method, rather than the child “sitting down on the toilet as a female child” to urinate. The father said that he demonstrated urination to the child using “a bush toilet”, “standing up and urinating as men do”, and that he taught the child the song “Shake, shake, shake your bootie” so that the child could shake his penis when he had finished urinating and that the child had “followed my prompts all along”. The father denied that he had called the child a “girl” but rather had explained to the child that females sit down to urinate, but that men stand up to urinate, adding that the child has “identified himself to me and other household members” as “I’m a girl”.
90The father acknowledged that he does not have experience in relation to the child’s special needs, but said in his oral evidence that if the child should live with him he would seek professional advice from experts, including a paediatrician based at the local Hospita), a Dr O. The father said he would ask Dr O for a plan to look after the child and for advice on how to deal with the child’s specific difficulties.
91The father proposed that if the child should live with him, his partner and her child J (his partner’s elder child M, as I have said, was about to relocate to Brisbane), the child would initially attend the C State Primary School (see ex 2), which does not have a special education unit, but that if he is advised that the child requires the services of a school with a special education unit he would arrange for the child to attend the W State Primary School which has a special education unit. Geographically (see ex 4) W is located a short distance (about 20 kilometres) from C. The father said that a family member presently is the driver of a taxi service which transports autistic children from C to the W State Primary School, so that the child’s transport would be by a family member. The father also said in his oral evidence that he would engage all specialist providers and carers for the child that he may be advised to engage, within the local region, emphasising that although C is a small country town it is proximate to a larger centre which has all manner of specialist medical services.
92The father said that as M (the father’s partner’s elder child) was shortly to relocate to Brisbane, the child would have his own bedroom in their home at C (par 91) and “will certainly have his mind stimulated as much as is practically possible with activities and the like”, and referred to the circumstance that the child is “very familiar” with the paternal grandmother who is “always involved” in the child’s visits.
93The father referred to the child’s minor bruising suffered during the June/July 2005 school holidays (the subject of Dr K’s evidence) as having been caused by the child falling off a chair when he got his foot caught (affidavit, par 89) and that the child had not been distressed; and said that during the September/October 2006 school holidays the child had slipped on lino in a caravan and “toppled out of the front door”, sustaining bruising on and around his right knee and right hip (affidavit, par 97), adding that the child “brushed himself down and continued in his energetic way”.
94The father said that as at September 2006 (his affidavit was filed in October 2006), he was in credit in relation to child support payments for the child.
95The father said the child “loves animals”, and sleeps with his toy dogs (about 5 or 6 of them). He said the child talks a lot about his dog (at the mother’s house) who is a two year old border collie, stating that if the child were to come to live with the father he did not oppose the dog coming too.
96He said that in his business he “does very little truck work now”, as he employs two drivers so he is able to be flexible as to his own “on call” work and can arrange to take time off to take the child to appointments and to ensure that the child would settle into his household.
97The father acknowledged, in cross examination, that the child may have said to the mother that he (the father) had hit the child, may have reported to the mother that the father said that girls sit down to urinate, and have been “deeply upset” at being hit and being told “how to go to the toilet” but said that he believes that the mother “escalates” things the child may have told her.
98The father’s partner, Ms T, said in her affidavit that the child is “an excitable child” and “happy and outgoing” in her observation. She referred to various activities in which she and the father have involved the child while on holiday contact “as a family unit”, describing boating trips, camping holidays, gardening activities, bushwalking, water skiing, kite flying, fishing and many other activities all of which the child enjoys “thoroughly” and “becomes involved with great enthusiasm”. The father’s partner said that “from time to time” the child is “naughty”, “smacks” her daughters and is “rough with his toys”. She acknowledged that both she and the father “smack the child” either on the hand or the bottom when he is “naughty” but that it is “only a light smack”, “not a hard physical hit of any description”, adding that the child is also given “time out” if he is naughty.
99The father’s partner said that she has been “present at most visits” by the child, and that the child has “never been sexually abused”.
100In relation to the father’s business, and her involvement with it, the father’s partner said that she works in the father’s business from about 9am to 3pm on business days and would be happy to transport the child to and from school, as that is consistent with her working hours.
101In her oral evidence, the father’s partner said that she fully supported the father’s application that the child should live with him and said, with candour, that she acknowledged there “would be difficulties” not only in any transition period but generally. She said however that she and the father are “committed to the child’s needs”.
102In relation to the incident of the child falling out the caravan door during the September/October 2006 school holidays, she said that this occurred while the father, she and the child were on a caravanning/camping trip in northern New South Wales. The father’s partner said in her affidavit (par 9) that the child was “giggling and laughing and fell out of the door of the caravan, half a metre to the ground”. However, because the father’s partner and the father considered that, upon the child’s return to the mother, there may well be a complaint to the Department of Community Services, she prepared and signed a statutory declaration (ex 3) dated 7 October 2006. Apparently, the child’s paternal grandparents were also on this particular holiday and, according to the father’s evidence, also signed statutory declarations (not in evidence) to similar effect, because of a fear that the mother would allege that the child had been physically mistreated.
103The father’s partner referred to the circumstance that J and the child get on “very well” playing cards, discussing things amongst themselves and planning and playing their games. She acknowledged that there is a six year difference between J and the child but said to the effect that she did not have rose coloured glasses as to “hiccups” and difficulties which might occur in the integration process if the child should come to live in their household.
The independent children’s lawyer’s case
Dr W – first report 20 June 2006
104Dr W, child adolescent and adult psychiatrist, provided a report dated 20 June 2006.
105On 23 December 2005, he had interviewed the mother and then separately the child, noting that the child had spent the last three months with the mother, had little telephone contact with the father and had been brought to his rooms by the mother.
106On 30 December 2005 he interviewed the father, then the child with the father, noting that again the mother had brought the child to the interview, having been in her care for the previous three months and not having seen the father in that time, but about to embark upon “three weeks with his father shortly after the interview”.
107Dr W said (p 5) that “due to the possibility that [the child] may have been unduly influenced by his mother, he was re-interviewed on 05/01/06 after having spent a week with his father”. On 5 January 2006, Dr W further interviewed the child and the father “together” (p 6) and apparently also separately on that date (see the reference to Dr W’s clinical notes, p 1).
108Thus, Dr W saw the child on three occasions, 23 December 2005, 30 December 2005 and 5 January 2006.
109I have referred already to the circumstance that Dr W did not interview the mother “with the child” (the reason for this was explained by Dr W on 2 February 2007 at T 20/25-45).
110As to mental state examination of the mother (p 4) Dr W said:
… The content of her thinking was centred on her belief that [the child] was being abused and that contact was detrimental to him. … Her insight and judgment was impaired by her belief system.
[bold emphasis added]
111As to mental state examination of the father (p 9) Dr W said:
… His insight and judgment was reasonable.
[bold emphasis added]
112Dr W, in his lengthy report, referred in detail to information given to him by the mother, the father and the child. It is not necessary to reproduce or endeavour to paraphrase these parts of Dr W’s report.
113Dr W referred to collateral information as described in his report (pp 9-12), and at pp12-15 set out his opinion, part of which I have set out above, but which bears repetition in the present context (p 12):
[The child] has a number of developmental delays in his social interactions, communication (both verbal and non-verbal), gross and fine motor skills and ability to contain his motor overactivity. He is reported to have restricted, repetitive and stereotyped patterns of behaviour, interests and behaviour and be unable to play with other children at a developmentally appropriate level. As such he appears to meet DSM4’s diagnostic criteria for a Pervasive Developmental Disorder such as Autism or less likely Asperger’s Disorder. He is also noted to be aggressive to others, particularly his mother, cruel to animals, interested in fire lighting, motor restless, distractible, egocentric and unable or unwilling to follow instructions. As such he shows early signs and symptoms of the externalising disorders of childhood such as Attention Deficit Hyperactivity Disorder, Oppositional Defiant Disorder and Conduct Disorder. This is complicated by his comorbid Autistic Spectrum Disorder and his overly close, enmeshed relationship with his single mother. [The child] is excessively anxious and concerned about separating from his mother. He becomes distress[ed] when separation from his mother, his major attachment figure, occurs or is anticipated, is fearful of being alone at home to the point that he insists on showering and going to the toilet with his mother and apparently sleeps with her. As such he would also meet the DSM4 diagnostic criteria for Separation Disorder. [The child’s] prognosis is poor if he continues his current life trajectory.
[bold emphasis and underscoring added]
114I have referred already (par 11 above) to the mother’s evidence that the child does not sleep with her all of the time, but only when he returns from spending time with the father “for a week or so, until he settles down”.
115Dr W referred (p 13) to some of the mother’s notifications to the Department of Community Services and the Police, counselling at SCOPE and the engagement of a private psychologist and a general practitioner as the mother “looking for evidence to support her concerns and stop access”.
[bold emphasis added]
116Dr W said (p 13):
[The child] arrived for his interview with his mother. He later stated that his mother instructed him to tell me that his father hit him. When I introduced myself to him in the waiting room his first words were “my dad hits me I don’t want to go with him”. He repeated this phrase in my office in a forced almost pressured fashion and was insistent that I write it down. He stated that his father hit him all over his body with a hammer although there has never been any physical evidence of abuse. He stated that his mother was going to kill his father or lock him in a cage. He appears to have been aware of the purpose of the interviews and been included in adult issues. After one interview he went outside and reported to his mother what he had told me in a fashion that seemed to be seeking attention and approval.
[bold emphasis added]
117He then said (pp 13-14):
Over the course of his observed interactions with his father [the child’s] manner and behaviour changed dramatically. He was initially quite angry and demeaning towards his father wanting no contact with him and making a number of allegations. After spending a week with him, and despite the phone call from his mother the previous evening [the child] was much warmer and more interactive with his father and father’s family. He was still making the allegations but in a seemingly bored learnt fashion while playing with his father, jumping into his arms and cuddling him. His manner and behaviour with his father was totally incongruous to the content of what he was saying about his father.
[bold emphasis added]
118Then, significantly, Dr W said (p 14):
On the evidence available, given the content, context and form of [the child’s] disclosures I do not believe that he has been abused in any way by his father or his father’s family. [The child] has been emotionally abused by being taken to all manner of counsellors and authorities with allegations that his father has abused him. He has been alienated from his father by these actions and is now to the point that he parrots the allegations himself even though he does not appear to believe them. This treatment of [the child] is severely abusive.
[bold emphasis and underscoring added]
119Dr W then (p 14) described the child as a “precious only child of an elderly first time mother who had a traumatic birth and a son noted to have developmental delays”; and the mother as having developed an enmeshed relationship with the child and who “became anxious about his safety”. He said that, in her anxiety, the mother was hypervigilant for any signs of change in the child on his return from access and “took what steps she thought were appropriate to protect her child”. Dr W said that the father “has not helped the situation” by blaming the mother’s overprotectiveness for the child’s developmental delays and “not familiarising himself with [the child’s] special needs”, adding that he had showed “poor judgment” “peek-a-boo” game with his son’s penis “during their first lengthy unsupervised access of an acrimonious Family Court dispute”.
[bold emphasis added]
120Dr W then said (p 14):
[The father] would perhaps argue that his ex-wife has deliberately set out to alienate him from his son by making false allegations that he abused him, to the point that [the child], a suggestible young man, now makes these allegations himself. This explanation that [the mother] has consciously alienated [the child] from his father is the most serious. This can occur from either psychopathic or psychotic reasons. [The mother] certainly holds the belief structure that [the child] has been abused by her ex-husband fairly firmly but these beliefs do not appear to be delusional as if she had a psychotic illness.
121In conclusion, Dr W said (pp 14-15), as I have set out above but again which bears repetition in the present context:
[The child] is a vulnerable boy. He requires firm consistent boundaries and limit setting to contain his behaviour. He needs to have a relationship with both of his parents. [The mother] has provided the vast majority of his care to the present day to the point that they have an overenmeshed pathological relationship. [The father] works long hours, lives with two step children who have special needs and has little understanding of his son’s problems blaming them on his ex-wife. [The child’s] interests would be best served by living with his mother and having frequent short periods of access with his father. This would only work if [the mother] sought professional help to deal with her anxieties and relationship with her son. If she was unable to do this or to actively support and encourage access between [the child] and his father then serious consideration would need to be given to the possibility of relocating [the child] to live with his father permanently.
[bold emphasis and underscoring added]
Dr W – oral evidence 2 February 2007
122In his oral evidence, Dr W said that “enmeshment” is a term used to describe a relationship “where it is too close”, describing it as an “unhealthy relationship” in that “it doesn’t allow the child to individuate, to go out and do things to make it feel better about itself”. (T 2 February 2007, 2/40-50).
[bold emphasis added]
123Dr W said that his concerns about the relationship between the child and the mother were that “the mother appeared to live most of her life around the son” adding “there was nothing else in her life”. (T 2 February 2007, 3/20-24).
[bold emphasis added]
124Dr W described “separation anxiety” as “normal” in that “all children have separation anxiety” giving the example of mothers and children each crying on the first day of a child’s school life, describing that as separation anxiety which he regarded as normal. He said however than when it “becomes so protracted that they are unable to separate in any way, shape or form” it can become problematic, adding that he has seen “worse cases” than the mother and the child in this case in that, at least for the purpose of interview, the child was able to separate from the mother in the waiting room to come into him. Dr W said in his oral evidence that he thought that the child “showed signs of, if not the full diagnostic criteria of, separation anxiety disorder” (T 2 February 2007, 3/12-20). He then said (T 2 February 2007, 4/3-10) that left untreated:
… 20, 30 years down the track – what you tend to find is these children tend to [leave] home later, that’s even later than they do these days, but they tend to [leave] home later. They tend to have a higher rate of anxiety themselves. They tend not to get married. The – you know, and their children tend to have anxiety disorders. That’s just the separation anxiety as it is. So to treat that you need not only the child, but really need the mother. And most of the works (sic) is with the parent, rather than the kid.
[bold emphasis added]
125As to the professional help which Dr W said in his report (p 15) the mother needed, Dr W said (T 2 February 2007, 4/40 – 5/2):
… [C]ertainly I’d be suggesting that she should see somebody, either an experienced psychologist in this field or a psychiatrist who works in the Family Court reporting, in the family field. Take this report with them to explain what the difficulties are. Let them have a look at that, and have some explanation for the way the children’s behaviour changes when going from one family to another family, and that’s without any of the – his other difficulties. All children have difficulties associated with going from one family situation to another. But to give her some support and to help her at least feel more comfortable with sending [the child] off to the father. So you’d be looking at some supportive psycho-therapy, some cognitive behavioural therapy just for her anxieties. And if all that didn’t work, you’d even, perhaps, think about some medication.
[bold emphasis added]
126Dr W was asked as to the effect on the child if I should order that he live with the father, which would require a change of State from New South Wales to Queensland; a change of school; a change of service providers including psychologist, occupational therapist, counsellor at school, general practitioner, speech therapist and paediatrician. Dr W referred to the circumstance that “because it’s been a year” since he had seen the parties and the child (indeed about 14 months) “it is more difficult” but that if he had been asked that question “last year after I saw all the parties” (T 2 February 2007, 8/10 – 10/20):
MR ROSER: So ideally, I suppose from your perspective, if [skil it] would be good to see what’s happened since you last saw [the child], his father and his mother? ----It’d – it’d certainly add some evidence.
[bold emphasis added]
139Mr Slade Jones of Counsel, for the father, described to Dr W some of the child’s disclosures to the mother of events the child reported after Dr W’s report (June 2006). Dr W observed that the allegations were “fairly serious” but said that it would be hypothesising to assess the allegations on the basis that, at “one end of the spectrum” the child has said those things and the mother has reacted as a normal mother; that at “the other end of the spectrum” the child has not said those things and “this is just mum’s imagination or mum saying this to try to build her case”; with the “most extreme” circumstance that the things disclosed by the child actually happened and were reported accurately by the child; adding that “in the middle” is the circumstance that the mother is a very anxious woman; the child is closely associated with her; he “picks up on her anxieties” and she “picks up on his anxiety” so “it just gets worse and worse” in the sense of the child saying things which he thinks will help the mother or that he will “get rewarded for” in some way.
Dr W – second report 13 June 2007
140In his report dated 13 June 2007, Dr W said, after interviews with the child and the mother on 10 May 2007 and with the child and the father on 24 May 2007 that the mother said she no longer had concerns for the child’s safety while with the father but “Whether this is a reflection of her genuine belief structure or thought to be the right thing to say for the court is difficult to say” (p 3).
[bold emphasis added]
141Significantly, he referred (p 3) to the circumstance that the mother had recommenced part time work with her previous employer and also in her family’s business, had attended support groups for parents with children with Autistic Spectrum Disorder and parenting courses, was attending a TAFE course to get back into the workforce, had developed an interest in walking and playing tennis and had started a new relationship.
142He said (p 4) of the child’s presentation:
[The child] presented in an unusual fashion standing upright and formally introducing himself in a stilted voice. He did not remember me from 18 months earlier. It was hard to get rapport with him and he had trouble making eye contact. His speech was spontaneous with increased rate and normal volume. The form of speech was stilted and accented. He talked at me in a monotonal voice about his interests to the point of being exceedingly hard to interrupt. He smiled and laughed more appropriately on this occasion than 18 months ago and he did try to interact with me. …
143He said (pp 4-5) that the child said things that were “clearly imaginary”:
·Dad hits me with the suitcase into the air like a rocket and goes all the way to the air and falls down again, isn’t that funny?
·Dad kicks my butt into the bookcase when I’m on the phone to Mum
·Mum swings me into the roof, she tips water into me and I scream, she puts my feet into the toilet and puts soap on it, sometimes she puts me into the washing machine and turns it on but she doesn’t close the lid,
adding that he suspected that these stories are more closely related to television viewing than reality.
144He referred to the father’s work and availability much as I have referred to this already and to the father’s expressed view (p 6) “I don’t believe much has changed”.
145He said (p 6) that the father said that if the child should continue to live with the mother in coastal New South Wales he would like to see the child for long weekends during school terms “to break up that lengthy period”, the time to be spent at a place “half way” between the father’s residence in C in Queensland and the mother’s residence in New South Wales.
146As to his opinion (pp 7-8) Dr W referred again to the child’s diagnosed conditions but, somewhat importantly, said that the child’s presentation and behaviour had improved significantly over the period of eighteen months since Dr W had seen him. He said:
… There were no reported problems with separation anxiety and the relationship between [the child] and his mother appeared far less enmeshed. [The child] was able to describe a healthy relationship with both of his parents to the point that he expressed a desire to see each of them on a daily basis. There were no serious allegations of abuse from [the child] about either parent. In summary [the child] has improved significantly in the last eighteen months while he has been in the care of his mother. He will require ongoing intensive academic, developmental and behavioural support for many years to come. He would also probably benefit from a trial of stimulant medication to get the maximum gain from this assistance.
[bold emphasis added]
147Dr W said that the father “appears to have reconciled the fact that [the child] has developmental problems and has actively pursued further information on [the child’s] problems and appropriate carers for him should he relocate to the North Coast”, and that (p 7):
… Now that [the child] has a reasonable relationship with both parents and is able to move from one to the other without significant difficulties or anxiety on his part in my opinion [the child] would be able to relocate to the North Coast to live with his father without significant difficulty.
[bold emphasis added]
148He said that while the mother “remains somewhat anxious” about the child this appears to be “more in line with what would be expected in this situation with a developmentally vulnerable child”. He then said of the mother (p 8):
… She has denied any concerns about [the child] seeing his father and appears to have been supporting this relationship. Whether this is due to a genuine change in her belief structures or one brought about by the Court process is impossible to tell. As long as her support of this relationship and the access arrangements continue, this question will remain an academic one. …
[bold emphasis added]
149In summary, Dr W said (p 8):
In summary [the child] and his mother have improved significantly since their last assessment. There is however still room for improvement in this situation. While I am sure that [the father] would be able to provide a safe nurturing alternative placement for [the child] I do not believe that the benefits of living with [the father] outweigh the potential problems of moving [the child] from his primary attachment figure, school and professional supports. As long as [the mother] continues to support the relationship between [the father] and [the child] and work on her issues of parenting and anxiety it would be reasonable to continue [the child’s] residency with his mother. I would suggest however that [the father] be afforded more frequent contact with [the child] to continue the improvement in their relationship. As well as the holiday contact [the father] could see [the child] for one or two weekends every term at a place half way between the two residences. Should there be any further breech (sic) of orders regarding contact or further reports of abuse made by [the mother] a change of residency should be strongly considered.
[bold emphasis and underscoring added]
Consideration of the statutory matters
Parental responsibility
150Dr W’s opinion (first report, p 14) states his belief that the child has not been abused in any way by the father, but has been emotionally abused “by being taken to all manner of counsellors and authorities with allegations that his father has abused him”, which treatment of the child Dr W described as “severely abusive”.
151Thus, I am constrained by s 61DA(2)(a) of the Act to not apply the presumption that an order for equal shared parental responsibility would be in the child’s best interests.
152I have considered whether, in any event, an order for equal shared parental responsibility in relation to the child would be in his best interests and thus should be made.
153I am conscious that, even if no order is made, s 61C of the Act would operate so that each of the child’s parents would have parental responsibility for the child.
154However, in the particular circumstances of this case, in my view the child’s best interests would be served by a specific order that the parents have equal shared parental responsibility for the child. In particular, when considering the meaning of parental responsibility in s 61B of the Act, that is, all of the duties, powers, responsibilities and authorities which by law parents have in relation to children, if there not be an order for equal shared parental responsibility the child may not have the benefit of the parents having equal input into the decisions concerning his development and special needs. In the past, it appears that the mother, for whatever reason, has denied inclusion of the father in the child’s life in relation to the child’s diagnosis of and treatment for autism, and in other ways has sought to exclude the father from the child’s life and the exercise by him of his parenting role in the child’s life.
155Thus, regardless of any order in relation to the child’s living arrangements, I am left in no doubt that s 61C would be inadequate in this particular case to ensure that the child have the benefit of equal input by the parents into the major long-term issue decisions which will affect his welfare, so that an order for equal shared parental responsibility would be in the child’s best interests.
156The effect of the order, having regard to s65DAC of the Act, will be that the parties will be required to consult each other in relation to major long-term issues concerning the child and make a genuine effort to come to joint decisions about such issues, defined in s 4 of the Act (relevantly) to include such matters as the child’s education (current and future), health and changes to the child’s living arrangements which would make it significantly more difficult for the child to spend time with a parent, as well as matters such as the child’s religious and cultural upbringing, and his name (should such matters become relevant in the future).
157They will not, however, be required to consult on inconsequential matters, such as clothing and food for the child, while with each of them, unless some significant issue as to such matters is raised: see s 65DAE.
158I am conscious that there is acrimony between the parties. However, as parents, by the order I will make, they will have the obligation to find an amicable and convenient way to consult each other in relation to the major long-term issues, for example by email or formal correspondence.
Equal time or substantial and significant time
159The provisions of s 65DAA(1) and (2) require not only a conclusion that the child spending equal time, or if not, substantial and significant time, with each of the parents, would be in the child’s best interests, but also, in either case, that such be reasonably practicable.
160In this particular case, as the mother lives in coastal New South Wales and the father in C in south-east Queensland it would not be reasonably practicable for the child to spend equal time or substantial and significant time (as defined in s 65DAA(3)) with each of the parents, particularly as the child’s schooling and thus necessarily his school days will need to be in the one place.
The child’s best interests
The primary considerations
Benefit of meaningful relationships with both parents
161Dr W concluded that the child needs to have a relationship with both parents (first report, p 14); and that he was able to describe a healthy relationship with both parents (second report, p 7) “to the point that he expressed a desire to see each of them on a daily basis”.
162Plainly, on the evidence, there is benefit to the child of having a meaningful relationship with both parents.
Need to protect the child
163I have set out in detail Dr W’s evidence concerning the mother’s enmeshed relationship with the child; his evidence (oral evidence, 2 February 2007) as to psychological harm to the child resulting from the “over enmeshment” (T 2 February 2007, 16/15-18/31); and his opinion that the mother taking the child to “all manner of counsellors and authorities” was “severely abusive” treatment of the child by her (first report, p 14).
164However, I must take into account also that in Dr W’s second report he was able to conclude that the relationship between the child and the mother “appeared far less enmeshed”, with the child having “improved significantly in the last eighteen months while he has been in the care of his mother”.
165Thus, on the current state of the evidence, it does not appear that there is a present need to protect the child from ongoing emotional abuse by the mother.
166I am satisfied, on all of the evidence, that the child was not physically or sexually abused in the father’s household, and that apart from the minor aspects of physical discipline which the father and the father’s partner described, which in all of the circumstances do not appear to me to have been inappropriate, it is likely that the more colourful disclosures by the child may have been as “clearly imaginary” as those the child described to Dr W (second report, pp 4-5) which Dr W readily concluded should be so described.
The additional considerations
Child’s views
167I accept Dr W’s opinion (oral evidence, T 2 February 2007 10/30-40 and 14/40-15/8) that I ought not give significant weight to the child’s views particularly because of “the difficulties that he’s got”.
Child’s relationships
168I have referred in detail to the child’s relationship with the mother.
169The child has an appropriate relationship with the father and, according to much of the evidence, enjoys the father’s company and the activities engaged in while with him. Dr W observed (first report, pp13-14) that after spending a week with the father (not having seen him for several months before that) the child was “much warmer and more interactive” with the father, “jumping into his arms and cuddling him”.
170The child, it appears, has appropriate relationships with the father’s partner and her two children, particularly J, with whom he plays and gets on well, and the paternal grandparents, who have been involved in the time the child has spent with the father.
171The child, it appears, also has appropriate relationships with the mother’s extended family.
Willingness and ability to facilitate and encourage a close and continuing relationship between the child and other parent
172It seems to me that at the commencement of these proceedings in March 2005, continuing through until and during the trial in February 2007, the mother wholly lacked the ability to facilitate and encourage a close and continuing relationship between the child and the father, perhaps best evidenced by the mother’s commencement of these proceedings to stop all contact between the child and the father.
173There is also the circumstance of the father’s evidence, which I accept, that the mother so interfered even with telephone communication between the child and the father that it was unsuccessful and difficult for the child.
174In Dr W’s view, the mother’s conduct served to “alienate” the child from the father (first report, p 14).
175However, in his second report (p 8), Dr W said that the mother has “denied any concerns about [the child] seeing his father”, and “appears to have been supporting this relationship”. Dr W said however that whether this is “due to a genuine change in her belief structures”, or “one brought about by the Court process” is impossible to tell.
176On any view, the mother’s support for the child’s relationship with the father is novel, and yet to be tested in the long term.
177There is no reason to think, on the evidence, that the father does not have the willingness and ability to facilitate and encourage a close and continuing relationship between the child and the mother.
The likely effect of change
178As was canvassed with Dr W, a change for the child to living with the father would mean a change from the parent who has been his primary carer, with whom he has lived for all of his life, and in more practical terms a change from New South Wales to Queensland, a change of school and changes in the identity of the child’s service providers including his paediatrician, general practitioner, speech therapist, occupational therapist and others.
179However, Dr W said in his oral evidence that the child is robust, and although there would be initial difficulties in such a move, in his opinion the child would cope with such a change (T 2 February 2007, 15/29-44); and in his second report (p 7) said that the child would be “able to relocate to the North Coast to live with the father without significant difficulty”.
Practical difficulty and expense
180The geographical distance between the parents’ homes has the practical effect that the child’s ability to spend time with and communicate with the parent with whom he is not living will be restricted.
Capacity to provide for the child’s needs
181Initially, the father was reluctant to accept the child’s diagnosis of autism. However, he is not to blame for this, having been excluded by the mother from the diagnostic and advice process.
182I am satisfied, on all of the evidence, that the father now accepts the diagnosis, and has the capacity not only to support the child emotionally but also to make all arrangements necessary for his emotional, intellectual and special needs.
183Until recently, the mother was wholly unable to recognise the child’s emotional need to have a relationship with and spend time with the father. Moreover, as I have explained, Dr W described her treatment of the child “by being taken to all manner of counsellors and authorities” as “severely abusive”.
184However, Dr W has said (second report, p 7) that the mother’s relationship with the child now appears “far less enmeshed” and that the child has “improved significantly” in the last eighteen months in the mother’s care.
185Dr W also observed (second report, p 7) that the child is “able to move from one to the other without significant difficulties or anxiety on his part”, indicating that the mother’s capacity to provide for the child’s needs also may have improved.
Child’s maturity, sex, lifestyle and background
186The child is six years.
187His diagnosis with autism and his other difficulties, amounting to special needs, are as described in Dr W’s first report and the evidence of the service providers who supplied affidavits in the mother’s case.
188Dr W said (second report, p 8) that the child will require:
… ongoing intensive academic, developmental and behavioural support for many years to come,
and
… would also probably benefit from a trial of stimulant medication to get the maximum gain from this assistance.
189The child currently is in the preparatory New South Wales school year.
190His lifestyle with the mother, according to Dr W’s recent assessment, is not as enmeshed as it was at the commencement of the trial.
191However, with the father, it appears that the child is exposed to and has the ability to explore and enjoy many more lifestyle physical and outdoor pursuits than are provided by the mother.
Attitudes to the responsibilities of parenthood
192The mother, until recently, appears to have ignored or denied the child’s right to a relationship with the father and ignored her responsibility to ensure that the child’s right in this regard is fostered.
193However, as I have observed earlier, the mother said she had genuine concern as to the child’s disclosures to her, and in her view acted promptly and appropriately to protect the child.
194I have referred already to Dr W’s observation as to the mother’s recent support for a relationship between the child and the father that whether this is “due to a genuine change in her belief structures”, or “one brought about by the Court process” is impossible to tell.
195The father has demonstrated, by his application that the child live with him and his new partner, full acceptance of his responsibility as a parent of the child, and his willingness as a parent to take all steps necessary to ensure that the child’s special needs are met.
Family violence and family violence orders
196There are no family violence orders.
197The mother gave evidence as to physical violence by the father towards her during the parties’ relationship. However, this evidence was vague, contradictory and not persuasive. It conflicts with the mother’s earlier report to Ms A that there had been no violence in the relationship with the father.
Order least likely to lead to other proceedings
198The recent changes described by Dr W in his second report; the uncertainty as observed by Dr W as to whether the changes in the mother are genuine; and the circumstance that an order that the child live with the father would be a significant change for the child; all have the effect that in my view there is no order which may be less likely than another to lead to the institution of further proceedings concerning the child.
The submissions
The independent children’s lawyer
199Initially, in February 2007, the independent children’s lawyer urged that the child’s best interests would be served by an order that the child live with the father.
200On 18 June 2007, the independent children’s lawyer made careful observations as to the matters in Dr W’s second report, including that Dr W has not given “unqualified acceptance” of the changes in the mother since the trial; and urged that in considering the child’s best interests, careful consideration needs to be given to the question whether the mother can “maintain her current position”.
201The independent children’s lawyer submitted also that there remain concerns as to the mother’s capacity to parent the child appropriately and to encourage a relationship between the child and the father, but that in her view it would be appropriate to follow Dr W’s opinion that the benefits to the child of living with the father would not outweigh the potential problems of moving the child from his primary attachment figure, school and professional supports, so that as long as the mother continues to support the relationship between the child and the father and continues to “work on her issues of parenting and anxiety” it would be reasonable for the child to continue to live with the mother.
Mr McGregor of Counsel for the mother
202On 18 June 2007, Mr McGregor of Counsel, for the mother, supported the position of the independent children’s lawyer, urging that the mother’s position concerning her prior enmeshment with the child genuinely has changed because she is now working, and has a new relationship and new interests, whereas earlier her only interest had been the child.
203Mr McGregor urged that the child not live with the father because of the significant changes for the child that would entail moving away from the mother, his primary attachment figure, and his school and professional supporters with whom the child has existing professional relationships.
Mr Slade Jones of Counsel for the father
204Mr Slade Jones of Counsel, for the father, urged in both February 2007 and on 18 June 2007 that the child’s best interests would be served by an order that the child live with the father.
205In relation to Dr W’s second report, Mr Slade Jones submitted on 18 June 2007 that the third sentence of Dr W’s conclusion (p 8) cannot be read in isolation from the fourth sentence, so that his opinion is qualified by two factors, as to which there is little evidentiary basis to consider the mother will abide, namely the mother continuing to support a relationship between the child and the father, and the mother continuing to work on her issues of parenting and anxiety.
206Mr Slade Jones submitted that the mother’s support for a proper relationship now between the child and the father is novel, and that “only 5 months ago” her support was wholly lacking, so that Dr W “questioned” whether her support now is genuine.
207He emphasised that Dr W reiterated (second report, p 7) that which he had said in his oral evidence, namely that the child would be able successfully to relocate to the father’s household and to live with the father without significant difficulties and submitted that to not order that now would go against “the totality of the evidence at the trial not to support the status quo”.
208He urged that to not order that the child now live with the father would carry the risk of “ongoing litigation” concerning the child, in particular having regard to the last sentence of Dr W’s second report, and the history of the matter, so that I “ought not have as much confidence as Dr [W]” that if the child should continue to live with the mother she would or may not continue to breach orders concerning the child, or make further reports of abuse, so that inevitably proceedings then would start again, predicated necessarily upon Dr W’s opinion that in either of those circumstances “a change of residence should be strongly considered”.
209As I understood his submissions, Mr Slade Jones urged to the effect that unless there be a change of residence now, it is more likely than not that further proceedings will be necessary to effect that very thing because of the unlikelihood of the mother abiding the two matters referred to comprising qualifications to Dr W’s opinion.
Determination as to the child’s best interests
210The factors which appear to me to be significant are that, until recently, the mother seemed incapable of supporting a relationship between the child and the father, caused perhaps by her own enmeshed relationship with the child, or perhaps by the child’s disclosures to her, or perhaps both; and that Dr W has expressed the view not only that the father would be able to provide a safe and nurturing “placement” for the child but that the child is robust and would be able to relocate to live with the father without any significant difficulties.
211It is significant also however that in his very recent report, 13 June 2007, Dr W has expressed the view that the mother’s relationship with the child is “far less enmeshed”; recorded that the mother has told Dr W that she no longer has concerns for the child’s safety while with the father; expressed the view that the child has “improved significantly in the last eighteen months while he has been in the care of his mother”; and that the mother “appears to be supporting” the relationship between the child and the father; although this observation was qualified by Dr W’s statement that whether this is a reflection of her genuine belief structure or thought to be the right thing to say for the Court is “difficult to say”.
212It is significant also that Dr W, in the final paragraph of his second report, expressed the opinion that although he is “sure” that the father would be able to provide a safe nurturing placement for the child, he did not believe that the benefits of living with the father would outweigh the potential problems of moving the child from his primary attachment figure, school and professional supports, and that as long as the mother continues to support the relationship between the child and the father and to work on her issues of parenting and anxiety it would be reasonable for the child to continue to live with the mother.
213On balance, having regard to all of the evidence, the objects of the Act, the principles underlying the objects and the statutory considerations, and having carefully considered also all of the submissions, in my view the child’s best interests would be served by accepting Dr W’s opinion, with the result that there should be an order that, apart from specified holiday time and other specified time which the child should spend with the father, otherwise he spend time with the mother.
214As to the time the child should spend with the father, in my view his interests would best be served by continuing the current arrangement that he spend all of the New South Wales gazetted school holidays with the father, except for the Christmas school holidays, half of which should be spent with the father and, as sought by the father, if the child should not live with him, the child spend time with him also on two weekends during each school term, with changeover at a place about halfway between the parties’ residences. In final submissions, Counsel for the father and the mother agreed that these school term weekends should be the fourth and seventh weekends in each of the child’s four school terms, with changeover at B, the school term weekend time spent with the father to be from Friday at 8pm (or Thursday 8pm if the Friday is a public holiday) until early/mid afternoon on Sunday (or Monday if the Monday is a public holiday). As expressed during argument (T 18 June 2007, 33/5-10), the mother should take the child directly from school on those afternoons (save maybe for a change of clothes), to be at the B destination by 8pm. Counsel were unable to agree whether the Sunday afternoon changeover time should be 2pm, as sought by the mother, or 3pm, as sought by the father. In my view, having regard to the child’s age, and that B (I am told by Mr McGreggor from the Bar table) is about 4½ hours drive from each of the party’s residences, it would be appropriate for the Sunday changeover time to be 2pm, to ensure that the child is back at the mother’s residence by about 6.30pm, although, as was put in argument, with one driver refresher stop after two hours, the time in any event would be more likely to be 7pm.
215As the changeovers for the fourth and seventh weekends in each school term will be at B, it seems appropriate that the same obtain for holiday changeovers, unless the parties agree in writing other changeover arrangements, and that in relation to any agreed changeover by air travel, the party proposing the air travel pay the child’s and his or her own air travel and accompany the child.
216As to telephone communication, in my view the child’s best interests would be served by orders that the child have weekly telephone communication with the father on the same basis as provided in the orders previously agreed on 17 May 2004, that is, at about 7pm on Wednesday (New South Wales time), and at about 9am on the child’s birthday, the father’s birthday, Father’s Day, Christmas Day and Easter Sunday (if the child is not then spending time with the father) and at all other reasonable times if the child should express to the mother the wish to have telephone communication with the father; that the child should have reciprocal telephone communication with the mother while he is spending time with the father; that the telephone communication, as naturally may occur, include, of the father’s partner, her children M and J and members of the father’s extended family, if present, and similarly, as naturally may occur, members of the mother’s extended family, if present.
217I accept also the father’s view that it would be appropriate for the child that the parent with whom the child is spending time at any ordered or other time for telephone communication should instigate the call on the child’s behalf, and I will so order.
218Otherwise, in my view, the child’s best interests would be served by the keeping of a communication book; but to be used only concerning the child’s health and welfare; a non denigration order; an information order; an authorisation order; an “emergency or serious accident” order; an order relating to the provision of material by the mother to the authorities; the discharge of previous orders and undertakings; and an order that the independent children’s lawyer be discharged.
219I would add, although perhaps it is unnecessary, that in my view if further proceedings concerning the child should be instituted, in particular any further proceedings in which the father may seek a final order that the child live with him, either of the circumstances mentioned by Dr W appropriately may be regarded as a significant change in circumstances, namely: (1) if the mother should not continue to support the relationship between the child and the father; or (2) if the mother should not continue to “work on” her issues of parenting and anxiety; and that a significant change in circumstances might also be shown if in the future the mother should, without reasonable excuse, breach the orders which I propose to make; or make any further (baseless) notifications of abuse; and that in relation to any such further proceedings which may be instituted by the father for a final order that the child live with him, based on these threshold matters, Dr W’s conclusions in his first report and his second report probably should be determinative, namely:
·The child’s prognosis is poor if he continues his current life trajectory (first report)
·if the mother is unable to seek professional help to deal with her anxieties and relationship with her son, or unable actively to support and encourage access between the child and his father, then serious consideration would need to be given to the possibility of relocating the child to live with his father permanently (first report) and
·if the mother should breach orders regarding contact, or make further reports of abuse, a change of residence for the child to live with the father be “strongly considered” (second report).
220I would go so far as to say that, as at February 2007, I was minded to order that the child’s residence be changed so that he live with the father. However, as is plain by the matters which I have canvassed, I was then uncomfortable about that circumstance, because there was no current evidence as to many relevant matters, and thus unable to decide the child’s best interests without an updating report by Dr W.
221On any view, Dr W’s second report is recent, in comparison with the bulk of the evidence adduced at the trial in February 2007, but nonetheless it contains persuasive evidence in favour of the determination which I have made.
222If, as may be the case, Dr W’s opinion expressed in his second report, and thus my judgment, upon which second opinion largely it is based, should prove to be wrong, so that the mother continues in the future to demonstrate an enmeshed relationship with the child, or conduct demonstrating an inability to facilitate and encourage the child’s relationship with the father, it would seem to me to be inevitable, upon any future application by the father, that there must be an order that the child live with the father.
223Having said that, I do not wish in any way to seek to fetter the discretion of a trial judge who in the future may be met with fresh proceedings, but rather to indicate that, if it had not been for Dr W’s opinion expressed in his second and very recent report, I have no doubt that in the child’s best interests I would have had no hesitation to order that the child live with the father.
I certify that the preceding two hundred and twenty three (223) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly
Associate:
Date: 3 August 2007
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Family Law
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