Narris and O’Dell

FEDERAL CIRCUIT COURT OF AUSTRALIA

NARRIS & O’DELL

[2018] FCCA 1344

Catchwords:
FAMILY LAW – Child aged 4 years and 10 months – parties had brief relationship and separated prior to child’s birth – child has lived in the predominant care of the mother since birth – child has special needs – consent order of November 2014 envisages parents sharing parental responsibility for the child – parties unable to agree which pre-school child should attend – best interests.

Legislation:

Family Law Act 1975, ss.60B, 60CC, 65DAC, 117(2)

Cases cited:
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28

Applicant:

MR NARRIS

Respondent:

MS O’DELL

File Number:

ADC 4402 of 2013

Judgment of:

Judge Brown

Hearing date:

17 May 2018

Date of Last Submission:

17 May 2018

Delivered at:

Adelaide

Delivered on:

25 May 2018

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondent:

Mr Charman

Solicitors for the Respondent:

Ian Charman & Associates

ORDERS

That the applicant father’s Initiating Application filed on 23 February 2018 is hereby dismissed.
That the parties do all things necessary to maintain the enrolment of the child [X] born on 2013 at the Suburb A Children's Centre.
That the said child shall attend the Suburb A Primary School as and from Term 1 2019 or such other school as advised by the Suburb A Children's Centre Director, the said school and therapists and that the parties do all things necessary to facilitate this order including the signing of all necessary documents.
That liberty is granted to the respondent mother to apply to relist on the issue of costs within twenty-one (21) days.
That the proceedings be otherwise dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4402 of 2013

MR NARRIS

Applicant

And

MS O’DELL

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Narris “the father” and Ms O'Dell “the mother” are the parents of [X] born 2013. On 28 March 2017, a team[1] comprised of a clinical psychologist; a speech pathologist; a physiotherapist; an occupational therapist; and a paediatrician; concluded that [X] has global development delay and meets the criteria for a diagnosis of autism spectrum disorder.
[1] Hereinafter referred to as the CAT Team or the Team
As a consequence of this diagnosis, the Team indicated that [X] would benefit from ongoing early intervention and support. In this context, [X]’s parents are unable to agree in respect of which preschool [X] should attend for at least the next 12 months or so.
The father favours the (omitted) which is based in Suburb C. It provides early intervention for children with autism, who are aged between two and six years of age. It is a private centre, which costs approximately $300.00 per fortnight.
The mother favours the preschool at which [X] is currently enrolled and which he attends. This is the Suburb A Children's Centre, which is located close to Ms O'Dell’s home in Suburb B. Suburb C is approximately 16 kilometres away and, on the mother’s evidence, takes approximately 30 minutes to drive to from Suburb B.
Suburb A Children's Centre is largely government funded. The fees for [X] to attend there, in 2018, amount to $240.00, which the mother has already paid. It is her position that she cannot afford the fees at (omitted) Centre and that Centre’s location is inconvenient to her home.
Mr Narris himself suffered from educational delays when he was young. He has apparently also recently disclosed to the mother that he has suffered from autism in the past. He has a close relationship with his parents, Mrs Narris and Mr Narris Senior. Both he and they believe a well-focussed early intervention, for [X], will be of immense value for [X], as it was for his father, when younger.
Mr Narris is not a wealthy person. He is employed as a (occupation omitted), which provides him with a taxable income of around $24,000.00 per annum. Ms O'Dell is in receipt of social security, as her main source of financial support. As a consequence of these matters, the father is assessed to pay child support to the mother in an amount of $1.58 per month.
Accordingly, neither party is in a position to pay the fees arising from [X] attending at (omitted) Centre. In these circumstances, Mr and Ms Narris Senior have offered to pay the fees concerned. Ms O'Dell is apprehensive about potentially being liable for the fees at (omitted) Centre if [X] does attend there. Implicit in her position is the fact that there is no great trust between the paternal and maternal aspects of [X]’s family.
It is the father’s position that [X] currently needs extensive assistance in toileting. He asserts that the child will not get the assistance he requires, particularly in respect of toileting, at the Suburb A Children's Centre but will at (omitted) Centre. He believes that the embarrassment potentially arising from this situation is likely to have very serious emotional ramifications for [X].
Ms O'Dell’s position is that she has made her own inquiries of (omitted) Centre and has reached the conclusion that there is nothing it can provide which will not be provided for [X] through the Department of Education & Children’s Development. She believes that Mr and Mrs Narris Senior are driving this issue rather than the father because her experience of him has been that he is inconsistent in his approach to spending time with [X].
In respect of the contentious toileting issue for [X], she has deposed as follows:
“… [X] has never shown any awareness of signs of being wet or dry or a need to use the toilet … in consultation with [X]’s occupational therapist Ms E, I put [X] in underwear (jocks) underneath his pull-up nappy and took him to the toilet at set times decided by a toilet time schedule that was completed for [X]. I informed the father about this schedule and gave him a copy of the occupational therapists notes. He advised he followed the schedule for one day before telling me that it did not work and he was not going to follow it. After two to three weeks of following the schedule [X] received a bad case of nappy rash and decided to take a break from toilet training for a couple of months. Suburb A Children's Centre has agreed to take [X] to the toilet at the set times at the beginning of term two when we have reintroduced wearing jocks under his nappy. We have revised the strategy and [X] has a new schedule which has been provided to the father.”[2]
[2] See mother’s affidavit filed 2 May 2018 at paragraph 38
In all these circumstances, it is the mother’s position that the toilet training issue is under control. She is particularly resentful that the father has asserted that she has been neglectful of the issue and is insensitive to its significance, so far as [X] is concerned. She is upset that the father and Mr and Mrs Narris Senior do not trust her judgment in respect of care arrangements for [X].

Other background

This is not the first controversy arising between the parties. In late 2013, the father commenced proceedings in this court seeking a raft of orders, which were primarily directed to ensuring that he was able to spend regular time with [X] and was involved in decision making for him. At the time of this initial application, [X] was under six months of age and lived with his mother.
At this early stage, the mother was wary of Mr Narris spending time, with [X], away from her direct supervision for any extended periods of time. It was also clear that the parties had no shared experience of parenting [X] together. In these circumstances, a family report was commissioned which was prepared by a family consultant, Ms A. Ms A’s report was released to the parties in July of 2014.
The parties agree that they were in a brief relationship between 2012 and 2012, during which period [X] was conceived. Initially, there was doubt surrounding his paternity and scientific testing was required to resolve this issue.
This circumstance alone points to a likely lack of mutual confidence in the parties’ parenting relationship. At this early stage of proceedings, it is hardly surprising that controversy arose as to the appropriate time for [X] to spend overnight time with his father.
In interview with her, Ms A described Ms O'Dell as being child focussed and mature in respect of her ability to balance [X]’s needs with the desire of the father to have a meaningful relationship with him.
Ms A described the father as being fairly intense and as taking his paternal role with [X] very seriously. In these circumstances, Ms A concluded that Mr Narris was committed to playing a significant part in [X]’s life.
Ms A reported as follows, in respect of one aspect of Mr Narris:
“Mr Narris said he ‘wants equal rights’ with the mother, and he believes his ‘gender is discriminated’ against. When asked what he meant by this, he said that he believes too much weight is given to the mother and her role in parenting a child. Mr Narris made mention a few times to ‘my child’, and when it was pointed out that it was ‘their child’, he corrected himself.”[3]
[3] See family report of Ms A dated 24 October 214 at [47]
In addition, Ms A interviewed both the paternal and maternal grandmothers, both of whom impressed her with their capacity to focus on [X]’s best interests. However, necessarily each grandmother was aligned with their respective offspring in the complex emotional matrix, which the case has created.
In her evaluation of the family, Ms A reported as follows:
“The parties barely knew each other when they conceived this child. The mother often made mention of ‘not knowing each other’ and this, coupled with the doubts about the paternity of the child, meant that there had to be negotiations of this nature before the parties could begin adjusting to the life changes that a new baby creates.
…
There appears to be no doubt that both parties love this child very much. [X] also has the love of his extended family, and both ‘sides’ impressed with their focus on their own child and also on [X]. Both the maternal and paternal members of the family are keen for this child to grow and be nurtured by all members of their respective families. There appeared to be sufficient goodwill to hopefully have shared times with both families, especially around special occasions.”[4]
[4] Ibid at [73] & [75]
In this context, Ms A noted that Mr Narris and Ms O'Dell had had no opportunity to develop trust and confidence in one another, which would facilitate a good co-parenting relationship between them. Although she found the father to be gentle and loving in his interactions with [X], she was concerned at his potential to be rigid in his thinking.
In this context, Ms A opined as follows:
“…the father would benefit from learning more about child development and how to ‘play’ with a child to stimulate their imagination and engage more effectively. When suggestions were made, he did not appear to want to take them; he remained polite and thanked the report writer, but there was a sense that he would do it his way.”[5]
[5] Ibid at [76]
At the time of Ms A’s report, prepared at a time when [X] was approximately one year of age, controversy centred on issues to do with overnight time. In this context, it appears to be the case that Mr Narris contested Ms A’s professional view that overnight time was contrarily indicated in the circumstances then prevailing. Mr Narris also indicated to Ms A his view that it was likely he had been the subject of gender discrimination, in the context of his pursuit of his application to spend overnight time with [X].
Ms A remained firm in her view that overnights were contra-indicated for children generally aged 0-4 because of the developmental need for a primary attachment figure. She also strongly recommended that Mr Narris attend a longer-term parenting course, particularly given her concern that Mr Narris displayed a potential to become “quite fixed in his beliefs and attitude.”
As a consequence of these matters, Ms A recommended as follows:
·The parties have shared parental responsibility for [X];
·The mother have primary care, and, until [X] was three years of age, he spend twice weekly periods of time, in his father’s care;
·Once [X] turned three, overnight time be gradually introduced.
As a consequence of this report, to the parties’ great credit, a trial which was scheduled for February of 2015 was avoided because they were able to reach a consensual agreement regarding parenting arrangements for [X]. On 18 November 2014, the following orders were made:
“2.    The parties have equal shared parental responsibility for the child [X] born 2013.
3.     The said child shall live with the mother.
4.     The said child shall spend time with the father as follows:
a. Up to the commencement of May 2015:
i.   each alternate weekend for six (6) hours on each of the Saturday and the Sunday at times to be negotiated between the parties commencing 22^nd November 2014; and
ii. each intervening week for six (6) hours on each of the Monday and Tuesday commencing Monday 1^st December 2014 at times to be negotiated between the parties;
b. From the commencement of May 2015 until the commencement of January 2016:
i.   each alternate weekend on each of the Saturday and the Sunday from 9.00 am to 5.00 pm on each day; and
ii. each intervening week on each of the Monday and the Tuesday from 9.00 am to 5.00 pm on each day;
c. From the commencement of January 2016 until the 2016 ([X]’s third birthday):
i.   each alternate weekend from 9.00.am Saturday to 5.00 pm Sunday; and
ii. each intervening week on each of the Monday and the Tuesday from 9.00 am to 5.00 pm on each day
d. from 9.00 am to 5.00 pm on Father’s Day if Father’s Day does not otherwise fall upon a day that the said child is in the father’s care PROVIDED HOWEVER if Mother’s Day falls on a day that the child is in the father’s care then he shall return the said child to the mother at 9.00 am on Mother’s Day;
e. for three hours on the said child’s birthday;
f.   for such time during each Easter as may be agreed between the parties;
g. from 4.00 pm to 7.00 pm on Christmas Eve 2014 and for such time as agreed on either Christmas Day or Christmas Eve in each subsequent year; and
h. for such other times as may be agreed between the parties.
5. Handover, unless specified herein shall occur at the mother’s home or such other place as may be negotiated between the parties.
6. That in the event that the father is going to be delayed in attending handover the father shall be at liberty to have either of the paternal grandparents collect then said child on his behalf.
7. The parties agree that prior to the said child attaining the age of four (4) years they will organise and participate in community based mediation to review these orders.
8. The parties shall each complete the Kids Are First program and provide proof of completion of same to the other party.”

The current application

The father commenced the current round of proceedings on 23 February 2018. He has acted on his own behalf in them and prepared his own documents. He seeks an order that [X] be enrolled “full time as soon as possible to (omitted) Children's Learning Centre”.
The mother responded to this application on 2 May 2018. She has had the same solicitor since November of 2013. She seeks the following orders:
·Mr Narris’ application be dismissed;
·The parties do all things necessary to maintain [X]’s enrolment at the Suburb A Children's Centre;
·[X] attend Suburb A Primary School from term one 2019 onwards or such other school as advised by the Suburb A Children's Centre Director;
·The father pay the mother’s costs of the application.
As previously indicated, [X] is already enrolled at the Suburb A Children's Centre and has been so enrolled since term three of 2017. In these circumstances, from the father’s perspective, there was a significant degree of urgency about his application. It is his position that it is essential that the change be made for [X] as a matter of urgency.
In these circumstances, it was not possible for the issue to be adjudicated in the context of a full hearing involving extensive evidence, including cross-examination. In addition, it was not possible for a further family report to be commissioned.
Accordingly, the case proceeded on the basis of submissions from each of the parties concerned and a consideration of their respective affidavits, which had attached to them a number of reports regarding [X]’s situation.
In addition, Mr Narris Senior made an impassioned speech to the court about the desirability of [X] attending (omitted) Centre as soon as possible. I accepted this evidence over the objection of Mr Charman, counsel for the mother, who properly pointed out the absence of an affidavit from the gentleman concerned.
I elected to allow the paternal grandfather to speak because of his obvious interest in the matter and given the powerful emotions which the issue of [X]’s preschool, given his significant special needs, has precipitated for all concerned. In this context, I accept unreservedly, that everyone wants the best for [X].
I also pointed out, tactfully I hope, the regret I felt at having to determine the issue in such a context given that it was apparent to me all concerned were united in their love for [X]. As such, it seems sad to me that no common ground could be found and it fell to me to make the necessary decision at short notice.

The legal principles applicable

Part VII of the Family Law Act 1975 is the part of the Act which deals with arrangements for the care and parenting of children. Pursuant to section 60CA the court is directed to regard the best interests of the child concerned as the paramount consideration in making any order regarding that child.
At the commencement of Part VII is a list of aims and principles, which the court is directed to consider to ensure that a child’s best interests are met through any parenting order it makes.
In the context of the current matter, relevant objects or aims of the legislation, as set out in section 60B(1) include the following:
“(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and”
It is the father’s apparent position that paragraph (c) above is a particularly pressing objective, so far as [X]’s welfare is concerned. In his submission, [X] is currently at something of a cross-roads so far as his early learning is concerned. If he does not attend (omitted) Centre, he fears that [X]’s toilet challenges and other issues will become more entrenched, as he will not receive the support he requires at the Suburb A Children's Centre.
The principles or code of ideas, which underpin the objects set out in section 60B(1) are set out in section 60B(2). Germaine to the current controversy arising between Mr Narris and Ms O'Dell are the following principles:
“(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children.”
Clearly, Mr Narris and Ms O'Dell cannot agree about a very significant parenting issue to do with [X]. Given their past history together, I am not surprised at this impasse. In my view, it is clear that both parents love [X] dearly and, as a consequence, each wants the best for him.
However, as a consequence of their lack of shared history of parenting [X] together and their different personalities and backgrounds, they now have quite different perspectives on what is likely to be best for [X]. This is not surprising given the very short time they were in a relationship together.

In my assessment, both parties have valid and readily understandable reasons for preferring (omitted), in Mr Narris’ case and the Suburb A Children's Centre, in Ms O'Dell’s case. Neither can be described as being illogical and capricious in their respective preferences. Accordingly, in my assessment, this is a difficult and finely balanced matter.
As indicated above, one of the orders on which the parties agreed in November of 2014, was that they would have “equal shared parental responsibility” for [X]. Pursuant to section 65DAC, if parents share parental responsibility for their child, this entails joint decision making in respect of major long-term issues arising in respect of that child.
Major long-term issues, in respect of a child, include issues related to that child’s long term care, welfare and development and specifically includes issues to do with the child’s:
·Education (both current and future);
·The child’s religious and cultural upbringing;
·Issues pertaining to the child’s health;
·The child’s name; and
·Changes to the child’s living arrangements which are likely to make it significantly more difficult for the child to spend time with a parent [section 4].
Clearly, the issue of which preschool and subsequently which primary school [X] should attend is such a major long-term issue. Pursuant to section 65DAC(3), if parents share parental responsibility for their child, they are required to consult with one another in respect of any major long-term decisions to be made and make a genuine effort to come to a joint decision about that issue.
In this particular case, I am satisfied that Mr Narris and Ms O'Dell have done the best they can to reach a consensus about this issue of [X]’s education. However, given their history together, I also accept it is not possible for them to reach such a consensus. This is because, apart from their biological relationship, as [X]’s parents, they rarely have little else in common, apart from their love for him.
The question of which preschool [X] is to attend, like all issues pertaining to children, is to be determined by reference to [X]’s best interests. In determining where those best interests lie, the court must specifically have regard to the matters set out in section 60CC of the Act.
Section 60CC creates two classes of considerations, which apply to the determination of a child’s best interests – primary considerations and additional considerations.
There are two primary considerations, which are set out in section 60CC(2)(a) & (b) namely:
“(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”
Thankfully, although the parties have a far from easy relationship, this is not a case centred on issues to do with family violence, neglect or abuse. The evidence available to me indicates [X] is a much loved child, who is not subject to any neglect.
It is Ms O'Dell’s position that the orders of 18 November 2014 to which Mr Narris agreed, provided a pathway to ensure that [X] had the prospect of having a meaningful level of relationship with his father, which was developmentally appropriate, given the incremental increases built into it.
It is also her evidence that between February 2016 and March 2018, the father has cancelled his time with [X], on numerous occasions.[6] In these circumstances, it is her position that Mr Narris has not been availing himself of opportunities to interact with [X] and extend his relationship with the child in a meaningful way as much as he could have done.
[6] See mother’s affidavit (ibid) at paragraph [34]
The additional considerations are more numerous, being fourteen in number. They are set out in section 60CC(3) and are categorised as being additional considerations. Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice, for the child affected, in every case.[7]
[7] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755
In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[8] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[9]
[8] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[9] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.
Given the nature of the dispute between the parties, in this case, the following additional considerations, arising from section 60CC(3) appear to be of particular significance:
“(b)   the nature of the relationship of the child with:
(i)     each of the child's parents; and
(ii)     other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)     to participate in making decisions about major long-term issues in relation to the child; and
(ii)     to spend time with the child; and
(iii)    to communicate with the child;
(ca)   the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)     the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)     either of his or her parents; or
(ii)     any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
…
(f)     the capacity of:
(i)     each of the child's parents; and
(ii)     any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
…
(i)     the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;”

The evidence

The father’s affidavit[10] is not an easy document to follow. However, it appears to be his evidence that [X] was using the toilet with confidence from late 2016 to December 2017. In this context, he asserts that the mother has been negligent in respect of the use of pull ups during the day and a nappy at night.
[10] See affidavit of the father filed 23 February 2018
He concedes that the Suburb A Children's Centre is very convenient to Ms O'Dell’s home, as it is on the same street as her residence. However, in his assessment the Centre’s “facilities and services are not adequate for my child.”[11]
[11] Ibid at [8]
On 28 November last year, [X] apparently attended an orientation day at (omitted) Centre, which in the father’s assessment he enjoyed. In this context on 4 December 2017, Mr Narris requested Ms Y, who is the program manager at (omitted) Centre to determine if [X] would be suitable for (omitted) Centre’s intensive program. As a consequence of this assessment, she provided a report dated 4 December 2017.[12]
[12] Ibid at annexure D
Ms Y reported that [X] could understand instructions but often refused to comply with them. She also noted some deficits in [X]’s social interaction with other children and some signs of emotional dysregulation, particularly throwing toys and climbing on furniture.
In respect of toileting, Ms Y noted that [X] was not toilet trained and wore a nappy. In this context, she observed that [X] had an urination accident doing the assessment, but did not show signs of being wet. He is not able to change his clothes. As a consequence of these matters, Ms Y reported as follows:
“Based on the information gathered through the paternal interview, and observations of [X], it is recommended that [X] receipt supports from (omitted) Centre for 12 months. [X] has reduced functional capacity in a large number of areas such as communication, emotional regulation, play, social skills and self-help skills. It is imperative that [X] is given intensive supports to support the development of these skills in order to increase his functional capacity in these areas.”
It is Ms O'Dell’s evidence, which I accept, that she was instrumental in securing [X]’s assessment by the CAT Team at the Medical Centre as it was she who secured a referral there by a paediatric registrar. As a consequence of this referral, she obtained the report of 28 March 2017, which identified [X]’s special needs. It is her case that this state of affairs demonstrates eloquently her level of proactivity in making sure [X]’s special needs are met.
In the CAT report, [X] is found to meet all the applicable criteria in respect of the diagnosis of autism spectrum disorder in that he has deficits in social communication and interaction; displays restricted and repetitive patterns of behaviour and interests; and these symptoms are significant, requiring very substantial support. In addition, these symptoms were noted to be accompanied by some level of intellectual and language impairment.
In a formal sense, the CAT Team concluded as follows:
“During today’s assessment, [X] presented as a socially aloof boy, who displayed significantly stereotyped language. He struggled to maintain shared attention with clinicians and was difficult to engage with directed activities. [X] used very limited non-verbal communication, and was not generally aware of the non-verbal communication of others. He was mostly happy during the assessment, and showed moments of engagement.
Formal assessment of [X]’s language, fine motor and gross motor skills was not possible. Based on observations today, [X] is presenting with significantly delayed language and fine motor skills.
On assessment today, [X] was found to meet criteria for a diagnosis of Autism Spectrum Disorder, in addition to Global Development Delay. He will benefit from ongoing early intervention and support.”
In this context, the Team recommended that [X] be referred to a speech pathologist to assist with communication and social skills and to an occupational therapist to assist with his fine motor, play skills and sensory issues. [X] is eligible for paediatric follow-up at the Medical Centre. In addition, he has also been deemed eligible for therapy and other services through the NDIS.
It is Ms O'Dell’s evidence that she has found it very difficult to communicate with Mr Narris about her investigations of [X]’s special needs, undertaken initially through her family doctor, who referred her on to a speech pathologist and ultimately the Medical Centre. It is her evidence that she has found the father to be rude and dismissive of her efforts.
Given the tenor of Ms A’s family report of 2014, I am not in a position to dismiss easily Ms O'Dell’s evidence in respect of the nature of the parties’ relationship with one another, particularly given Ms A’s view that Mr Narris has a propensity to adopt fixed views and be dismissive of the positions of others, whom he perceives to be in conflict with his own.
In the current matter, the parties appear to have received very different professional advice as to how [X]’s special needs are to be best approached, particularly in the context of the preschool environment. Ms O'Dell has been advised that [X] is echolalic. In general terms, this refers to the characteristic of children to repeat words or phrases which they overhear. It is particularly marked in autistic children.
In this context Ms O'Dell has deposed as follows:
“Upon receipt of the Autism Spectrum Assessment Team I made enquiries of the Child Assessment Team his speech therapist and his Kindy Director as to the best course of action for him. I have been advised that because he is “echolalic” being around severely Autistic children will not be of assistance to him. He copies the language of other people around him and therefore it would be better if he is copying children with more advanced language.”[13]
[13] See mother’s affidavit at [16]
As a consequence, Ms O'Dell proposed to Mr Narris, following the release of the CAT report in late March of 2017, that [X] attend the Suburb A Children's Centre for kindergarten and progress to the Suburb A Primary School. She obtained the necessary enrolment form, which both parties executed on 13 June 2017. On the form, all of [X]’s grandparents are noted as emergency contacts, if his parents are unavailable. In addition, [X]’s special needs have been entered, as well as the fact that he is not toilet trained.
In addition, in a text message, Ms O'Dell informed Mr Narris of the advice, which she had received regarding [X]’s echolalia, that it would not help him being around severely autistic children. In this context, Ms O'Dell advised as follows of the Suburb A Children's Centre:
“This school has some autistic kids and has a lot of help. He is getting help at kindy, at home and with a speech therapist n OT.”
To this Mr Narris initially responded as follows:
“That’s terrific, Ms O’Dell! that’s the sort of stuff I want to hear.
I always kind of like that as well, but I was going on what my parents said.”[14]
[14] See annexure O2 to the mother’s affidavit filed 2 May 2018
In this context, it is the mother’s position that, to all intents and purposes, Mr Narris has acquiesced in the decision required to send [X] to Suburb A Children's Centre and she personally has discharged her obligation to consult with Mr Narris and keep him informed of relevant matters. In my assessment, the evidence available to me bears out this submission.
In the context of [X]’s echolalia, Ms O'Dell has obtained a report from his speech pathologist, Ms J and his occupational therapist, Ms M, both of whom are attached to (omitted) Centre. [X] has been attending weekly sessions, at (omitted) Centre, since August 2017.
Ms J has noted some progress in [X]’s speech in that his attention span has increased and he is displaying an ability to increase the number of words and longer phrases, which he will copy. She also notes that he is using words more spontaneously. In this context, Ms J opines as follows:
“[X] would benefit from continuing to increase opportunities to interact with his peers in the mainstream setting; increasing the time he spends at the Children’s Centre and his family to continue to arrange play dates with other children. [X] likes to copy and learns from interactions ad exposure to learning opportunities with others.”[15]
[15] See affidavit of Ms B filed 2 May 2015 at BP1
Ms M confirms that [X] is not as yet showing signs of toileting readiness. In this context, she hopes that the completion of a toileting diary will provide some assistance for him. In this context, she opined as follows:
“Once completed, we can then hope to encourage specific toileting times throughout the day where [X] is able to sit on the toilet, in the hope of catching one of these movements. This process is a way of introducing the toileting experience and routine in a non-threatening way, helping [X] to feel in control and assume positive interactions with this environment. Children have reported they are also happy to follow these toileting times, and can also encourage other peers at the same time to provide familiarity and comfort.”[16]
[16] Ibid
It is Ms O'Dell’s position that the views of Ms J and Ms M confirm that she is, in effect, on the right track, so far as [X]’s education is concerned and her choice of the educational mainstream has thus far been borne out. It is also her position that her experience, through the latter part of 2017 and the early part of 2018, have also indicated her preference of preschool for [X] is the right one for him.
In this context, Ms O'Dell has obtained a letter, regarding [X], dated 30 March 2018, from Ms L, who is the director of the Suburb A Children's Centre.[17] It is Ms L’s view the Centre has expertise in working with children with special needs and [X] has made a positive transition to its preschool program. She also notes that [X] has regular support from his therapists at (omitted) Centre, who have implemented his NDIS plan that commenced from mid-2017 onwards.
[17] Ibid at annexure O4
Ms T is [X]’s occupational therapist at the Suburb A Children's Centre. She describes [X] as a happy young boy. In addition, she says as follows in respect of him:
“[X] has demonstrated receptiveness to staff and therapy input, and picks up many things from the world around him; [X] would benefit from continuing to attend a mainstream kindy as there he can receive positive modelling from his peers and develop his daily living skills. The staff at his current kindy have demonstrated a good level of understanding of [X]’s needs and have the skills to support and teach him, they are also receptive to therapists’ recommendations and proactive about the implementation of these.”[18]
[18] Ibid at annexure O3

Conclusions

I acknowledge the sensitivity of the issue of which preschool [X] should attend, given his very significant special needs, for all concerned in the case. However, in my assessment, the evidence available to me indicates that it would be contrary to [X]’s best interests for there to be any abrupt and necessarily dramatic change in his schooling arrangements at this stage of his development.
In my view, the evidence clearly indicates that he is well settled at Suburb A Children's Centre and it would therefore be potentially fraught with difficulty for him to start at another institution. In reaching this conclusion, I have not passed any specific judgment on whether (omitted) Centre is superior to Suburb A Children's Centre or vice versa.
Rather, the fact remains, that in mid-2017, Suburb A Children's Centre was satisfactory to Mr Narris, and, in my view, the evidence clearly indicates that Ms O'Dell had researched the Centre carefully and reached the conclusion that it would be suitable for [X], which conclusion the father initially supported. As such, in my view, there would need to be a very compelling reason to change [X]’s school at this stage.
In addition, the evidence indicates that Ms O'Dell has discharged the larger proportion of the parenting responsibilities for [X], up to this stage. In these circumstances, it behoves the court to give significant weight to her preferences. In my view, the evidence clearly indicates that Ms O'Dell is the most significant person in [X]’s life, both in emotional and physical terms, at this stage.
Given Ms O'Dell’s role as [X]’s principal provider of care, issues to do with her convenience cannot be easily overlooked by the court. In these circumstances, the distance between her home and (omitted) Centre is a significant factor militating against any change in [X]’s schooling. In my view, it would place an unfair burden on Ms O'Dell, if she was required to transport [X] to and from (omitted) Centre at her own expense.
I appreciate that Mr Narris is not in a strong financial position. However, on any view, the current level of child support, which he is providing will go little way, if any way at all, to provide for [X]’s physical needs.
In these circumstances, I can appreciate why she considers it both patronising and interfering that Mr and Mrs Narris Senior would want to intervene in her life, so far as providing [X]’s education is concerned, whilst leaving financial responsibility for him to her.

The evidence available to me indicates that Ms O'Dell has got an appropriate level of capacity to provide for [X]’s intellectual needs. It was she who obtained the CAT assessment for [X], which lead to his therapeutic involvement with (omitted) Centre, through the NDIS. As such, she cannot be described as a neglectful parent.
It is inevitable that individuals, including professionally qualified ones, will differ in their opinions about the merits of privately funded services for children, in an educational context, with those provided by the state. As I say, I am not in a position to discount Ms Y’s opinion, which I accept was genuinely proffered. However, in my view, there are other considerations, particularly those of continuity and practicality, which counter her recommendations.
In all these circumstances, I propose to make the orders as sought by the mother. The major reasons being that she is [X]’s primary carer; [X] has been attending at the Suburb A Children's Centre for the past few months; and the professional advice provided to Ms O'Dell indicates that the child would not necessarily benefit from being removed from a mainstream institution.
Ms O'Dell is not a wealthy person. She has funded the involvement of her lawyer in these proceedings. Mr Narris has prepared his own documents. He too is not financially well off. Ms O'Dell seeks her costs.
The normal rule in family law proceedings is that each party bears their own costs. The relevant provision of the Family Law Act, relating to costs, is section 117. Section 117(1), abolishes, for the purposes of Family Law Act proceedings the general rule that in civil proceedings costs follow the event.
Section 117(2) then provides the court with a general discretion to make costs orders if it is of the opinion that there are circumstances that justify it in so doing. The court may make such order for costs as it “considers just”.
Section 117(2)(A) sets out the matters that the court shall have regard to in exercising this discretion. They include the following: the financial circumstances of the parties concerned; the receipt of legal aid by the parties; the conduct of the parties to the proceedings; whether the proceedings were necessitated by the failure of a party to comply with previous court orders; whether one of the parties to the proceedings have been wholly unsuccessful in them; any offers to settle the proceedings; and any other relevant matter.
I have not been advised of the likely quantum of Ms O'Dell’s costs or the specific amount she seeks and the manner in which any such sum is to be calculated. In addition, I do not know, with any great precision, what are the intricacies of Mr Narris’ financial situation.
In these circumstances, I will defer the issue of costs, at this stage. If Ms O'Dell chooses to agitate the issue, I will direct that she seeks the re-listing of the matter within the next twenty one days, so that Mr Narris has time to formulate his response to the application.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding ninety seven (97) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date: 25 May 2018

[2018] FCCA 1344

25 May 2018

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Costs

Jurisdiction

Procedural Fairness

Remedies