Parkinson and Lofts
[2009] FMCAfam 155
•6 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PARKINSON & LOFTS | [2009] FMCAfam 155 |
| FAMILY LAW – Children – autistic child – where parties have very different approaches to medical and management issues associated with child's autism – where mother has more "traditional" approach and father has more "alternative" approach – where parties have been unable to communicate effectively – where there has been serious and entrenched parental conflict – where mother granted sole parental responsibility for child's health and all medical and dental issues, including management of child's autism – where both parties granted equal shared parental responsibility for all other major long term issues – where child is to live with mother and spend time with father. |
| Family Law Act 1975 (Cth), Part VII ss.4(1), 60B, 60B(1), 60B(2), 60B(3), 60CA, 60CC, 60CC(2), 60CC(3), 60CC(4), 60CC(4)(c), 60CC(4A), 60CC(5), 61DA, 61DA(2), 61DA(3), 61DA(4), 64B, 64B(3), 65A(1), 65DAA(1), 65DAA(2), 65DAA(3), 65DAA(5), 65DAC, 65DAE |
| A v A: Relocation Approach (2000) 26 FamLR 382 Mosby's Dictionary of Medicine, Nursing and Health Professions (Elsevier Australia – 1st Australian and New Zealand edition, 2006) |
| Applicant: | MR PARKINSON |
| Respondent: | MS LOFTS |
| File Number: | MLM 2539 of 2005 |
| Judgment of: | Walters FM |
| Hearing dates: | 12, 13, 14 & 29 June 2007, 2, 3, 4 & 5 June 2008 |
| Date of Last Submission: | 11 July 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 6 March 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Cranenburgh |
| Solicitors for the Applicant: | Legal Help Lawyers, [E] |
| Counsel for the Respondent: | Mr Hebblewhite |
| Solicitors for the Respondent: | Taylor Whelan & Whelan |
| Counsel for the Independent Children’s Lawyer: | Mr James |
| Solicitors for the Independent Children’s Lawyer: | O’Farrell Robertson McMahon |
ORDERS
In these orders:
(a)"the child" means [X] born in 2002;
(b)"Medical Professional" means any medical practitioner or medical or allied health professional;
(c)"Medical Intervention" means any form of medication or medical or allied health treatment, therapy or testing whatsoever;
(d)"the Listed Therapies" means the following:
(i)heavy metal detoxification or chelation therapy (however described);
(ii)organic colloidal minerals; and
(iii)Epsom salt baths;
(e)"the Expert" means Prof Bruce Tong, Psychiatrist of Woodend, or such other psychiatrist, psychologist or counsellor with experience in autism disorder as shall be nominated by the Independent Children's Lawyer;
(f)"the Consultation Program" means advice, assistance and guidance to be obtained by and provided to the father with respect to issues associated with the management of the child's autism;
(g)"[F]" means [F] Contact Centre in Bendigo;
(h)“Term Holidays” means the “short” school holidays at the end of first, second and third term in each school year;
(i)“Summer Holidays” means the “long” Summer school holidays, between the end of one school year and the beginning of the next; and
(j)all school holidays, whether Term Holidays or Summer Holidays, shall be deemed to:
(i)commence at the completion of school on the last day of the school term; and
(ii)conclude at the commencement of school on the first day of the next school term.
Save for paragraphs 8 and 9 of the orders made in this Court on
20 October 2006(which orders relate to the removal of the child from the jurisdiction), all previous parenting orders relating to the child be discharged.
The child live with the mother.
Subject to paragraph 5 below, the mother and the father have equal shared parental responsibility for the child.
The mother have sole parental responsibility for the child in relation to the child's health and health care, and all medical and dental issues (including management of the child's autism).
The father, his servants and agents, be restrained by injunction from taking the child to or having the child seen by any Medical Professional without the written consent of the mother having first been obtained, save for the purposes of medical attention which is required on an urgent basis, in which case the father must immediately notify the mother of the following details:
(a)the name and contact details of the Medical Professional;
(b)the medical complaint for which the child was taken to the Medical Professional;
(c)any treatment and/or medication prescribed for or provided to the child; and
(d)the reasons for the prescription for or provision of such medication and/or treatment.
Subject to paragraph 8 below, the father, his servants and agents, be restrained by injunction from administering, giving or providing the child with any form of Medical Intervention, including, but not limited to, the Listed Therapies, without the written consent of the mother having first been obtained.
The injunction contained in paragraph 7 above does not apply to Medical Intervention administered, given or provided to the child on an urgent basis by or upon the direct advice of a Medical Professional– provided that such Medical Intervention does not include or involve the Listed Therapies or any of them (in relation to which the injunction contained in paragraph 7 continues to adhere).
Subject to paragraphs 10, 11 and 12 below, the father spend time with the child as follows:
(a)from the date of the within orders until 17 April 2009: from 10 a.m. to 5 p.m. each Saturday;
(b)thereafter, and until 16 October 2009:
(i)each alternate weekend from 10 a.m. on Saturday to 5 p.m. on Sunday; and
(ii)each other week from after school (or 4 p.m. in the event of a non school day) on Thursday to the commencement of school (or 9 a.m. in the event of a non school day) on Friday;
(c)thereafter:
(i)subject to paragraphs 24 and 25 below, each alternate weekend from after school (or 4 p.m. in the event of a non school day) on Friday to 5 p.m. on Sunday; and
(ii)subject to paragraphs 24 and 25 below, each other week from after school (or 4 p.m. in the event of a non school day) on Thursday to the commencement of school (or 9 a.m. in the event of a non school day) on Friday;
(iii)for four consecutive days during all Term Holidays –
(A) commencing at 5 p.m. on the second Sunday after the completion of the preceding school term (and concluding at 5 p.m. on the following Thursday) in 2010 and each alternate year thereafter; and
(B) commencing at 5 p.m. on the first Sunday after the completion of the preceding school term (and concluding at 5 p.m. on the following Thursday) in 2011 and each alternate year thereafter;
(iv)
for four days during the Summer Holidays in 2010/11 and 2011/12, commencing at 5 p.m. on the first Sunday after
31 December and concluding at 5 p.m. on the following Thursday; and
(v)for five days during the 2012/13 Summer Holidays, and in all Summer Holidays thereafter, commencing at 5 p.m. on the first Sunday after 31 December (and concluding at 5 p.m. on the following Friday).
(d)notwithstanding all other provisions of the within orders:
(i)on the child's birthday in each alternate year commencing 2010, provided that:
(A) if the child's birthday falls on a school day, then contact pursuant to this provision shall be from after-school on the child's birthday until the commencement of school on the following morning (or 9 a.m. in the event of a non school day); and
(B) if the child's birthday falls on a non school day, then contact pursuant to this provision shall be from 10 a.m. on the child's birthday until the commencement of school on the following morning (or 9 a.m. in the event of a non school day).
(ii)
from 5 p.m. on the day before Father's Day until 5 p.m. on Father's Day each year (so that the child spends the said
24-hour period with the father);
(iii)the father's time with the child be suspended from 5 p.m. on the day before Mother's Day until 5 p.m. on Mother's Day in each year (so that the child spends the said 24-hour period with the mother);
(iv)from 4 p.m. on Christmas Eve to 4 p.m. on Christmas Day in 2009, and in each alternate year thereafter (so that the child spends the said 24-hour period with the father);
(v)the father's time with the child be suspended from 4 p.m. on Christmas Eve to 4 p.m. on Christmas Day in 2010, and in each alternate year thereafter (so that the child spends the said 24-hour period with the mother);
(vi)from 4 p.m. on Christmas Day to 4 p.m. on Boxing Day in 2010, and in each alternate year thereafter (so that the child spends the said 24-hour period with the father);
(vii)
the father's time with the child be suspended from 4 p.m. on Christmas Day to 4 p.m. on Boxing Day in 2009, and each alternate year thereafter (so that the child spends the said
24-hour period with the mother); and
(e)at such other times as shall be agreed between the father and the mother in writing.
Subject to paragraphs 11 and 12 below, the father's time with the child referred to in paragraph 9 above must be supervised at all times by Mr P (or, in the event of his unavailability, by either Ms M or Ms P) or by such other person as shall be agreed between the father and the mother in writing.
The father must –
(a)forthwith, and as soon as an appointment becomes available, consult with the Expert for the Consultation Program;
(b)continue to attend upon and consult with the Expert throughout the Consultation Program, and for such period as the Expert shall consider appropriate;
(c)comply with all directions given and requests made by the Expert throughout the Consultation Program; and
(d)pay all costs associated with the Consultation Program as and when they shall full due.
Upon the father providing to the mother a written recommendation from the Expert that unsupervised contact or time should commence (whether in conjunction with the father attending the Consultation Program or otherwise), the requirement for supervision in paragraph 10 above be forthwith discharged and the father do commence to spend unsupervised time with the child in accordance with paragraph 9 above.
Subject to paragraphs 14 and 15 below, and unless the parties otherwise agree in writing, changeovers for the purpose of the father spending time with the child (where such changeovers do not take place at the child's school) must take place on the footpath directly in front of the main entrance to the [address omitted], Bendigo, and both parties must leave the area immediately after each changeover has occurred.
The mother and the father must forthwith do all such acts and things and sign all such documents as shall be necessary to apply to the [F] to have changeovers between the parties (where such changeovers do not take place at the child's school) facilitated at [F].
In the event that [F] accepts an application by the father and the mother to facilitate changeovers, then in lieu of paragraph 13 above, and unless the parties otherwise agree in writing, changeovers (where such changeovers do not take place at the child's school) must take place at [F] at the times specified in paragraph 9 above, or at such other equivalent times as nominated by [F] (in order to ensure that the father spends the same time with the child, or as close to the same time as is practicable in all the circumstances) in consultation with the parties.
Subject to paragraph 17 below, and unless the parties otherwise agree in writing, the father and the mother must communicate with each other in relation to issues involving the child by SMS text messages or by the communication book which each party will sign at changeover, and both parties be restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other parent (or any member of the other parent’s household) in such SMS text messages or in the communication book.
If the parties seek to discuss issues in relation to which they have equal shared parental responsibility, then, unless the parties otherwise agree in writing, the parties must both attend mediation at an approved Family Dispute Resolution/Mediation or Relationship Centre, or with a Family Dispute Resolution Provider listed on the Attorney-General's Family Pathways website, with the cost of any such mediation to be paid equally by the father and the mother.
The mother must:
(a)keep the father advised, at all times, of her current residential address and contact telephone or landline and mobile number;
(b)advise the father in writing of any change of address or contact telephone number/s within seven days of any such change;
(c)advise the father immediately in the event of the child suffering from any serious illness or injury;
(d)authorise any medical practitioner upon whom the child may attend from time to time to communicate with the father in relation to the child's medical condition and/or requirements; and
(e)ensure that, except for the purposes of the child obtaining urgent medical or dental treatment, or pursuant to the direction of the school, the child:
(i)attends the [B] Special School (or such other school as the child shall attend from time to time) on each school day;
(ii)arrives promptly at the start of each school day; and
(iii)remains at school until the end of each school day.
The father must:
(a)keep the mother advised, at all times, of his current residential address and contact telephone or landline and mobile number;
(b)advise the mother in writing of any change of address or contact telephone number/s within seven days of any such change;
(c)advise the mother immediately in the event of the child suffering from any serious illness or injury;
(d)authorise any medical practitioner upon whom the child may attend from time to time to communicate with the mother in relation to the child's medical condition and/or requirements; and
(e)ensure that, except for the purposes of the child obtaining urgent medical or dental treatment, or pursuant to the direction of the school, the child:
(i)attends the [B] Special School (or such other school as the child shall attend from time to time) on each school day;
(ii)arrives promptly at the start of each school day; and
(iii)remains at school until the end of each school day.
In the event of the child missing school for medical or dental reasons, the parent in whose care she is at the time must forthwith provide the school and the other parent, with a medical/dental certificate explaining the reason for the absence.
Subject to the requirements of the [B] Special School (or such other school as the child shall attend from time to time), both parents be at liberty to attend parent-teacher interviews and school events to which parents are normally invited, and to receive school reports and other information normally provided to parents.
The mother, her servants and agents be restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the father; and
(b)discussing these proceedings,
to, with or in the presence or hearing of the child, and from permitting any other person to do so.
The father, his servants and agents be restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the mother; and
(b)discussing these proceedings,
to, with or in the presence or hearing of the child, and from permitting any other person to do so.
Subject to paragraph 9(d) above, the father's time spent with the child pursuant to paragraph 9(c)(i) and (ii) above be suspended during all Term Holidays (commencing in 2010), and do resume after such holidays in an unbroken cycle as if such holidays had not occurred.
Subject to paragraph 9(d) above, the father's time spent with the child pursuant to paragraph 9(c)(i) and (ii) above be suspended during all Summer Holidays (commencing with the Summer Holidays in 2010/11) as follows:
(a)in the 2010/11 and 2011/12 Summer Holidays – for one week immediately after the four day period during which the child shall spend time with the father (in other words, from 5 p.m. on the Thursday that the child is returned to the mother to 5 p.m. on the following Thursday), so that the child spends the said one week period with the mother;
(b)in the 2012/13 Summer Holidays (and in all Summer Holidays thereafter) – for one week immediately after the five day period during which the child shall spend time with the father (in other words, from 5 p.m. on the Friday that the child is returned to the mother to 5 p.m. on following Friday), so that the child spends the said one week period with the mother,
but not otherwise be suspended, and the father's time spent with the child pursuant to paragraph 9(c)(i) and (ii) above do occur before and/or after such block periods with the mother and the father in an unbroken cycle, and as if such block periods with the mother and the father had not occurred.
The Independent Children's Lawyer be at liberty to provide a copy of these orders to any of the following:
(a)the principal or delegate of the principal of the school attended by the child;
(b)all medical practitioners and/or allied health professionals attending upon the child;
(c)all counsellors of the child; and
(d)all psychiatrists, psychologists or counsellors that either party may attend or consult pursuant to these orders.
The Expert and any medical professional who are currently or have previously treated the child be at liberty to consult with each other regarding matters relevant to the implementation of these Orders.
The order for the appointment of the Independent Children's Lawyer be discharged with effect from:
(a)the date upon which the father provides to the mother the written recommendation from the Expert to the effect that unsupervised contact or time should commence (whether in conjunction with the father attending the Consultation Program or otherwise), thereby causing the requirement for supervision in paragraph 9 above to be discharged and permitting the father to commence spending unsupervised time with the child; or
(b)1 October 2009,
whichever shall first occur.
All extant applications otherwise be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Parkinson & Lofts is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLM 2539 of 2005
| MR PARKINSON |
Applicant
And
| MS LOFTS |
Respondent
REASONS FOR JUDGMENT
Preamble
[X] is nearly 7 years old. She is autistic. She was only about two years old when her parents separated. Since that time she has lived with her mother, but her father now wants her to live with him.
[X]’s parents have been arguing in court about her care arrangements for the best part of four years. There has been much hostility between them.
At the heart of the dispute has been the parents’ profound disagreement as to the way in which [X]'s autism should be regarded and managed. The mother has taken a somewhat "traditional" approach, seeking advice and guidance from medical experts in the field. The father has adopted a more "alternative" approach. He lives in hope that [X] will be "cured" and has been prepared to investigate therapies and treatments which [X]’s paediatrician regards as little more than quackery. The mother's rejection of these therapies and treatments has frustrated and angered the father, to the point that he has accused her of not caring about [X]'s health.
I must now determine the question of whether [X] should continue to live with her mother, or whether she should live with her father. I must also determine who should be responsible for [X]'s long term care, welfare and development, including the medical and therapeutic approach to her autism. In seeking answers to those questions, I am required by law to to regard [X]'s best interests as the most important consideration in the case. I am also required by law to make the orders that are most likely to promote [X]'s best interests.
Introduction
In these Reasons, and unless otherwise indicated, all statements of fact comprise findings of fact.
The mother was born in November 1972. She is now 36. The father was born in September 1975. He is now 33. They lived together from approximately June 2001 to February 2004. [X] is their only child. She was born in March 2002.
[X] has been diagnosed as suffering from autism – which can be defined as "a pervasive developmental disorder characterised by abnormal emotional, social and linguistic development".[1]
[1] See Mosby's Dictionary of Medicine, Nursing and Health Professions (Elsevier Australia – 1st Australian and New Zealand edition, 2006)
[X] lives with the mother in a rental property in [T], which is a small country town between [C] in [K] in central Victoria. The mother’s mother lives with them.
The father lives with his parents and his sister in [E], just outside Bendigo. [E] is just over 50 km from [T].
The parties disagree as to who was primarily responsible for [X]'s care prior to their separation. Little now turns on the resolution of that disagreement. It is sufficient to record that both parents were involved in [X]'s care at that time and that both were competent carers.
Of more significance is the fact that [X] has lived in the primary care of the mother since separation.
The above summary comprises no more than a superficial introduction. I shall do my best to identify and resolve the more significant of the various issues in dispute between the parties elsewhere in these Reasons.
Background information
Although the law now refers to a child “spending time” with a person with whom the child does not live,[2] I shall use – from time to time in these Reasons – the obsolete term “contact”. I have elected to use the superseded term because it is both more convenient and less grammatically challenging to do so.
[2] See, for example, s. 64B(2) of the Family Law Act 1975. See also Carpenter and Lunn (2008) FamCAFC 128 and Chappell (2008) FamCAFC 143
On 1 February 2005, the father commenced proceedings in the State Magistrates Court at Bendigo, seeking "liberal contact" with [X]. Interim orders were made (by consent) on 9 March 2005, to the effect that the father have contact each Tuesday and Thursday from 3 p.m. to 4 p.m., and the proceedings were otherwise transferred to this Court.
On 11 May 2005, orders were made (by consent) increasing the father's contact to two hours each Tuesday and Thursday. Procedural orders were also made on that date, including an order for the appointment of an independent children's lawyer (“ICL”) and for the preparation of a family report.
The family report (prepared by Mr David Mitchell, psychologist) was released on 9 August 2005. I shall refer to this report as "the first family report".
On 15 August 2005, orders were made increasing the father's contact to a period of three hours (from 2 p.m. to 5 p.m.) each Monday and Thursday, together with a further period of not less than 1 1/2 hours on either Saturday or Sunday of each alternate weekend.
Final parenting orders were made, by consent, on 16 November 2005. Those orders provided for the parties to have joint responsibility for [X]'s care, welfare and development. They also provided for [X] to live with the mother and for the father to have contact on the basis of a graduating arrangement, commencing with four hours, twice per week, leading to eight hours on a week day and overnight on a weekend. Contact was to be extended to alternate weekends (from after school on Friday to 5 p.m. on Sunday) and a few hours after school on the other Tuesday, together with half of all school holidays, commencing in July 2008.
On 11 April 2006, the father filed a contravention application. He also filed a formal application seeking orders to the effect that [X] live with him and that the mother be restrained by injunction from removing her from Australia.
On 23 May 2006, orders were made to the following effect:
a)The parties were to attend family dispute resolution counselling.
b)Both parties were to attend and complete appropriate post separation parenting programs.
c)Both parties were restrained by injunction from removing [X] from Australia (and a watch list order was made).
d)The contact orders made on 16 November 2005 were "fine tuned".
e)The father's contravention application filed on 12 April 2006 was dismissed.
f)Procedural orders were made sending the father's application for residence to trial.
On 21 September 2006, the mother filed an application for orders to the effect that the parties have equal shared parental responsibility for [X] and that [X] live with the mother. The mother also sought orders to the effect that the father have defined contact with [X].
On 9 October 2006, the father filed an amended contravention application (listing in excess of 25 alleged contraventions on the part of the mother). He also filed a response (to the mother's application filed 21 September 2006) seeking final orders to the effect that [X] live with him and that the mother's time with her be supervised.
On 20 October 2006, the Court recorded that it was satisfied that the mother had committed contraventions of the November 2005 orders and that she did not have a reasonable excuse for those contraventions. It also made orders to the following effect:
a)The mother was required to enter into a bond in the sum of $500 for the period until trial to be of good behaviour and to strictly comply with all court orders.
b)The father was to have makeup time with [X] on two occasions (from 11 a.m. to 7 p.m. on each occasion).
c)The father's contravention application (as amended) was otherwise dismissed
d)A family report was to be prepared.
e)A watch list order was made.
f)Procedural orders were made sending the parties competing applications to trial on 10 April 2007.
Further orders were made (by consent) on 20 October 2006 on an interim basis, pursuant to which –
a)the parties were to have equal shared parental responsibility for [X]; and
b)[X] was to continue to live with the mother and have certain defined contact with the father.
The October 2006 orders also contained various provisions regulating the parties’ behaviour towards each other and dealing with the "mechanics" of the contact arrangements.
By letter dated 7 February 2007, the parties were advised that, due to judicial unavailability, the trial date had been administratively changed from 10 April 2007 to 19 April 2007.
On 21 March 2007, the family report (ordered in the October 2006 orders) was released. It was prepared by Mr Tony O'Dwyer, family consultant. I shall refer to this report as "the second family report".
On 12 April 2007, the father filed an amended response. In it, he sought orders to the effect that the parties have equal shared parental responsibility for [X] and that she "spend equal time with each parent".
The trial did not proceed on 19 April 2007. Instead, it was adjourned to 12 June 2007. Consent orders were made on 19 April 2007 to the effect that both parties were to undertake supervised drug screens, and otherwise programming the matter for trial.
The trial commenced on 12 June 2007. It continued on 13 and 14 June 2007. Counsel delivered their closing addresses on 29 June 2007, on which date various interim and procedural orders were made; other orders were also made on that day, including an order that the mother have sole parental responsibility for [X]'s medical and health issues. In addition, paragraph 5 of the orders made on that day severely restricted the father’s right to take [X] to any medical or allied health professional without the written consent of the mother, and the father was restrained by injunction from:
administering, giving or providing for the child with any form of medication or medical or allied medical treatment or testing, including but not limited to:
· heavy metal detoxification or chelation therapy;
· vitamins and organic colloidal minerals; and
· Epsom salt and clay baths,
without the written consent of the mother. “Chelation therapy” involves the administration of chelating agents (being a form of chemical binding agents) to attempt to remove certain heavy metals from the body.
In December 2007, further applications were filed by both parties (including a contravention application filed by the father on
3 December 2007). In broad terms, the mother sought to suspend the contact orders then in place. The father sought to enforce them. In her affidavit sworn in support of her application, the mother referred to having found marks on [X]'s legs which, it seemed to her, were "consistent with puncture wounds caused by needle injections". The mother was "concerned that the father had injected [X] with some form of detoxification or chelation medication" – in flagrant breach of the orders made on 29 June 2007 restraining him from doing so. I shall refer to this incident as "the Wound Incident".
On 20 March 2008, both parties were granted leave to reopen their cases, and the trial was listed to resume on 2 June 2008. Other orders made on that day included the following:
a)The father's contravention application (filed on 3 December 2007) was dismissed.
b)The father was to have contact with [X] for periods between two and five hours each Saturday leading up to the date of trial.
c)The father's contact with [X] was to be supervised by his father, Mr P.
Mr P gave an undertaking to be present and supervise the father's contact with [X], and to ensure that the father complies with all previous orders.
The trial resumed on 2 June 2008. It continued on 3, 4 and 5 June 2008.
On 5 June 2008, orders were made to the effect that, until further order, the father have contact with [X] from 12 p.m. to 5 p.m. each Saturday, that changeover be at [F] Contact Centre in Bendigo and that the father's contact be supervised at all times by either Mr P or Ms M (or such other person as shall be agreed to by the mother). Mr P and Ms M both gave undertakings to be present and supervise the father's contact with [X], and to ensure that he complies with all previous orders.
Directions were made for the filing of closing submissions in writing.
At the hearing in June 2008, Ms Cranenburgh appeared for the father, Mr Hebblewhite appeared for the mother and Mr James appeared for the ICL. At the earlier hearing (in June 2007), Mr Williams appeared for the father, Mr Nicholson appeared for the mother and Mr Barker appeared for the ICL.
I shall refer to Ms Cranenburgh’s written submissions as "WSF",
Mr Hebblewhite’s written submissions as "WSM" and Mr James’ written submissions as "WSICL".
The law[3]
[3] This generic summary of the law is extracted from my decision in the matter of Mills & Watson (2008) 39 Fam LR 52
Applications concerning children (or, more accurately, applications for parenting orders) are dealt with in Part VII of the FLA. Much of Part VII reflects comprehensive amendments to the pre-existing law, which amendments came into effect on 1 July 2006.
The Full Court carefully analysed the structure and effect of a significant portion of Part VII in Goode (2006) FLC 93-286. It began by identifying the types of orders that fall within the category of "parenting orders", and by referring to section 64B (which includes, among other things, a list of the matters with which a parenting order may deal). For example, orders allocating parental responsibility for a child, specifying the person with whom a child is to live or defining the time a child is to spend (or the communication a child is to have) with a person, are all parenting orders.
Parenting orders dealing with the allocation of parental responsibility for a child can also deal with "the allocation of responsibility for making decisions about major long-term issues in relation to the child”[4]. Such issues include (but are not limited to) important questions regarding a child's education, religious and cultural upbringing and health. A proposed change to a child's name, or proposed changes to a child's living arrangements which would make it significantly more difficult for the child to spend time with one of his or her parents, are also regarded as major long-term issues. But a parent's decision to form a relationship with a new partner is not, of itself, a major long-term issue in relation to a child ─ although such a decision could involve a major long-term issue if the new relationship requires the parent to move to another place (thereby making it more difficult for the child to spend time with the other parent).[5]
[4] See s. 64B(3)
[5] See the definition of "major long-term issues" in s. 4(1)
If a parenting order provides that parents (or others) are to share parental responsibility for a child, and if the exercise of that responsibility involves the making of a decision about a major long-term issue regarding a child, then the relevant decision must be made jointly. Further, an order for shared parental responsibility requires those in whose favour the order has been made to consult with each other in relation to any relevant major long-term issue, and to make a genuine effort to come to a joint decision.[6] Such consultation is not required in relation to issues that are not major long-term issues, and a parent with whom a child is spending time will not normally need to discuss minor matters (such as what a child eats or wears) with the other parent.[7]
[6] See s.65DAC; see also Pender & Haywood [2007] FamCA 1526, at para. 56
[7] See s.65DAE
As has long been the case, the child’s best interests remain the paramount consideration in the making of parenting orders. That principle is set out in section 60CA:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
The objects of Part VII, and the principles underlying it, are set out in section 60B. They are important.
The objects of Part VII are:[8]
[8] See s.60B(1)
… 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 the children.
The principles underlying these objects are:[9]
[9] See s.60B(2)
… that (except when it is or would be contrary to a child's best 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).
Aboriginal or Torres Strait Islander children not only have a right to enjoy their culture, but they also have the right to:
a)“maintain a connection” with and “develop a positive appreciation” of it; and
b)be provided with “the support, opportunity and encouragement necessary to explore the full extent of that culture” (consistent with the child's age and developmental level, and the child's views).[10]
[10] See s.60B(3)
Given that all the expressed objects of Part VII are directed towards ensuring that a child’s best interests are met, and given that the court must always regard the child's best interests as the paramount consideration in deciding whether to make a particular parenting order, the question of how a court determines what is or may be in a child's best interests is crucial. The subject is dealt with in section 60CC, which directs the court to consider a relatively lengthy list of factors before determining what is in a child's best interests.[11] The list is divided into two parts, the first comprising "primary considerations", and the second comprising "additional considerations".
[11] If the court is considering whether to make an order with the consent of all parties, it is not required to have regard to all or any of the listed factors (although it may do so if it wishes) ─ see s.60CC(5)
The primary considerations are set out in section 60CC(2). They are:
a)the benefit to the child of having a meaningful relationship with both of the his or her 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.
The additional considerations are set out in section 60CC(3). They include:[12]
[12] This list is not intended to be comprehensive. It is simply a summary of the factors in s.60CC(3). The actual factors set out in s.60CC(3) ─ or, more accurately, those of them that are relevant ─ will be considered later in these Reasons.
a)any views expressed by the child, and any factors that the court thinks are relevant in determining the weight that should be given to those views;
b)the nature of the child’s relationship with each of his or her parents and other relevant people (including grandparents and other relatives);
c)the willingness and ability of each parent to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
d)the likely effect of any changes in the child's circumstances (including as a result of any separation from a parent, sibling or grandparent with whom the child may have been living);
e)the practical difficulty and expense of a child spending time with and communicating with a parent (and the effect of such difficulty and expense on the child's right to maintain personal relations and direct contact with both parents on a regular basis);
f)the capacity of each of the parents, and of any other relevant person, to provide for the child's needs (including his or her emotional and intellectual needs);
g)the child's maturity, sex, lifestyle and background (including the child's culture and traditions);
h)in the case of an Aboriginal or Torres Strait Islander child, the child’s right to enjoy his or her indigenous culture;
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the parents;
j)any relevant family violence, or family violence order;
k)whether it would be "preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child"; and
l)any other fact or circumstance that the court considers relevant.
Section 60CC(4) elaborates upon two of the factors referred to above ─ namely, the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent and the attitude to the child (and to the responsibilities of parenthood) demonstrated by each of the parents. It requires the court to focus upon each party’s "track record" as a parent. Particular regard must be had to events that have happened (and circumstances that have existed) since the parties separated.[13] One of the matters that the court is obliged to consider is the extent to which each parent has fulfilled, or failed to fulfil, his or her obligation to maintain the child.[14]
[13] See s.60CC(4A)
[14] See s.60CC(4)(c)
The Full Court in Goode summarised the above process as follows:[15]
… in deciding to make a particular parenting order, including an order for parental responsibility, the individual child's best interests remain the paramount consideration … and the framework in which best interests are to be determined comprises the factors in sections 60CC(1), (2), (3), (4) and (4A). The objects and principles contained in section 60B provide the context in which the factors in section 60CC are to be examined, weighed and applied in the individual case.
[15] See para. 10
Notwithstanding the Full Court's reference to a "framework", and to the context in which the factors comprising that framework are to be considered, a trial judge who is obliged to determine competing applications for parenting orders does not start with a blank sheet of paper.[16] Relevantly, certain conditional presumptions (relating to parental responsibility) may apply. Generally speaking, however, and subject to those presumptions, the court may make such parenting order as it thinks proper.[17]
[16] See, in a different context, McLeay (1996) FLC 92-667 at 82,901
[17] See s.65D(1)
When making a parenting order, the court must apply a presumption that it is in the child's best interests for his or her parents to have equal shared parental responsibility.[18] Such a presumption, although clearly important, says nothing about the amount of time that the child should spend with each parent.
[18] See s.61DA
The presumption relating to equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent (or somebody living with a parent) has abused the child (or another relevant child), or has engaged in family violence.[19] In interim proceedings, the application of the presumption is less strict: it does not apply if the court considers that "it would not be appropriate in the circumstances" for it to be applied.[20]
[19] See s.61DA(2) and the definition of "family violence" in s.4(1)
[20] See s.61DA(3); it is important to note, however, that the Full Court in Goode (at para. 78) held that the discretion in s. 61DA(3) should not be exercised "in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult."
In circumstances where the presumption relating to equal shared parental responsibility would otherwise apply, it may be rebutted "by evidence that satisfies the court that that it would not be in the best interests of the child" for the parents to have equal shared parental responsibility.[21]
[21] See s.61DA(4)
Where parents are ordered to have equal shared parental responsibility for their child (whether as a result of the application of the presumption referred to above, or otherwise[22]), the court must go on to consider whether the child spending equal time with each parent would be both reasonably practicable[23] and in the child's best interests. If it is, then the court must consider whether or not it should make an order to that effect.[24] If the court comes to the conclusion that an order for equal time should not be made, then it must then go on to consider whether the child spending "substantial and significant time"[25] with each parent would be both reasonably practicable[26] and in the best interests of the child. If it is, then the court must consider whether or not it should make an order to that effect.[27]
[22] See, for example, Goode at paras 46 and 47, and Pender & Haywood [2007] FamCA 1526 at para. 44
[23] How a court determines "reasonable practicality" is the subject of s.65DAA(5)
[24] See s.65DAA(1)
[25] "Substantial and significant time" is defined in s.65DAA(3)
[26] How a court determines "reasonable practicality" is the subject of s.65DAA(5)
[27] See s.65DAA(2); see also Goode at paras 43 and 44
The sequence in which the court should consider the various provisions discussed above (and other relevant matters) is not clear from Part VII itself. In Taylor & Barker (2007) FamCA 1246, however, the Full Court said[28]:
… (Given) that the concept of the child's best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that section 60CC(1) provides that in determining what is in the child's best interests, the court must consider the matters set out in subsection (2) ("primary considerations") and subsection (3) ("additional considerations") of that section, it would seem only logical that the court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child's best interests. (Emphasis added)
[28] See para. 62
The Full Court in Taylor & Barker added that failure to follow the above approach (which it clearly regards as "the logical approach") does not necessarily amount to an appealable error. Such an error would arise, however, if a trial judge failed to give adequate reasons or did not have regard to "the matters which the legislation requires must be considered".[29]
[29] See para. 63
In Mazorski & Albright,[30] Brown J dealt with the “additional considerations” (in section 60CC(3)), prior to dealing with the primary considerations (in section 60CC(2)). In Moose,[31] Boland J (with whom May J agreed) approved of such an approach, saying that, in certain cases, it may help to focus the court's attention on relevant matters to be determined under section 60CC(2) if it first considers and makes findings about relevant factors under section 60CC(3)
[30] (2008) 37 Fam LR 518
[31] (2008) FLC 93-375
Having summarised the effect of the amendments to Part VII in paragraph 65 of its judgment in Goode, the Full Court then described the "legislative pathway" that "must be followed" in interim proceedings in paragraph 82. There seems to be no reason, however, why the same pathway ought not to be followed at trial, where final orders are sought.[32]
[32]The relevant steps (as modified for a final hearing) are as follows:
a)Identify the parties’ competing proposals.
b)Identify the issues in dispute in the proceedings.
c)Make relevant findings in relation to the facts.
d)Consider the relevant section 60CC factors and (if possible) make findings about them.
e)Decide whether the presumption in section 61DA (that equal shared parental responsibility is in a child's best interests) applies.
f)If the section 61DA presumption applies, then consider whether it has been rebutted (because its application would not be in the child's best interests).
g)If the section 61DA presumption applies, and has not been rebutted, then consider making an order that the child spend equal time with the parents ─ unless equal time would be either:
i)contrary to the child's best interests as a result of the application of one or more of the factors in section 60CC;[33] or
[33] But see subpara. (k) below
ii)impracticable.
h)If equal time is not in the child's best interests, or is impracticable, then consider making an order that the child spend substantial and significant time with the other parent – unless (in turn) substantial and significant time would also be either:
i)contrary to the child's best interests as a result of the application of one or more of the factors in section 60CC;[34] or
ii)impracticable.
i)It should be borne in mind, however, that it is only necessary to consider whether it would be “reasonably practicable” for a child to spend equal time with each parent (or substantial and significant time, as the case may be) if a conclusion has already been reached to the effect that it would be in the child’s best interests to spend equal time with each parent (or substantial and significant time, as the case may be).[35]
j)If the section 61DA presumption has been rebutted or does not otherwise apply, or if it does apply but "neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child's best interests", then issues regarding the child's living arrangements and the time that the child is to spend with each of the parents are "at large and to be determined in accordance with the child's best interests" (or, in other words, as a result of consideration of the objects and principles in section 60B and the factors set out in section 60CC).[36]
k)The court is not relieved from having to consider equal time, or substantial and significant time, simply because neither party has sought orders to that effect ─ although the court would only make orders of this nature if it were to conclude that it would be in the best interests of the child to do so, and after affording procedural fairness to the parties (by informing them that equal time, or substantial and significant time, is being considered, and by giving them an adequate opportunity to lead evidence or make submissions in relation to the subject, including the issue of impracticability).
[34] But see subpara. (k) below
[35] See Taylor & Barker at para. 74
[36] See Goode at para. 65.8
Throughout the entire process, the court must bear in mind that the child's best interests "remain the overriding consideration",[37] and that the child's best interests are to be “ascertained by a consideration of the objects and principles in section 60B and the primary and additional considerations in section 60CC”.[38]
Orders sought
[37] See Goode at para. 65.11
[38] See Goode at para. 65.9
The ICL’s proposals
In broad terms, the orders sought by the ICL are to following effect:
a)The mother is to have sole parental responsibility for [X], and [X] is to live with her.
b)
The father is to spend time with [X] on a graduating basis, leading to each weekend contact (being after school Friday to
5 p.m.Sunday in each alternate week, and after school Friday to 10 a.m. Saturday in each other week).
c)Contact changeover is to take place (after a transitional stage) at the [F] Contact Centre in Bendigo.
d)Each party is to keep the other advised of relevant information relating to [X].
e)The father is to be restrained by injunction from taking [X] to any medical or allied health professional without the mother's written consent (save for medical emergencies), and he is also to be restrained from giving [X] any medication or medical or other treatment (or causing her to undergo testing) in relation to her autism without the mother's written consent.
f)The father is to receive counselling and guidance in relation to [X]'s autism.
g)The mother is to ensure that, save in the event of urgent medical or dental treatment, [X] is to attend the [B] Special School on each school day (and remain there from the start of the school day until the end of the school day).
The ICL also seeks other "mechanical" type orders designed to effectively implement the substantive orders outlined above.
The ICL opposes any change in [X]'s present living arrangements – for three primary reasons:[39]
a)[X] has been in the primary care of the mother since separation.
b)[X] has "expressed a sense of comfort level" and appears "at home in the company of her mother and in her mother's home".
c)Taking into account [X]'s autism and the need for routine (and the adverse effect on [X]'s development of significant changes in her circumstances) "powerful arguments" are required before the court should consider a change of primary care.
[39] See WSICL at p. 8
In relation to the last of those reasons, and the significance of an existing status quo generally, the Full Court in Burton (1978) 4 FamLR 783 said (at page 786):
… (We) are of the view that no legal onus rests upon a party with whom a child is residing to show that a change would be detrimental to the child and no legal onus rests upon a party seeking a change to justify the change either by establishing that a change would be positively advantageous to the child or in any other way. An existing status quo is but one factor to be weighed with all other relevant factors in determining a particular case. When weighing that factor, the quality of the status quo would require examination – and if a long standing status quo is disturbed, then the factors which influence the Court to come to that conclusion should be clearly identified. (Emphasis added)
These remarks were re-affirmed by the Full Court in Re: G: Children’s Schooling (2000) 26 FamLR 143 at 154[40]. In my opinion, and although the pre-existing law in relation to parenting issues was comprehensively amended in mid 2006, the passage from Burton quoted above remains good law.[41]
[40] See also A v A: Relocation Approach (2000) 26 FamLR 382 at 405-6.
[41] See (for example) Goode at paras 72-3
To the extent that the ICL might be considered to be arguing that the current status quo should be preserved for its own sake, I reject that submission. Relevantly, there is no legal onus on the father to persuade the Court that the current status quo should be altered (by removing [X] from the mother's primary care and placing her in his primary care). I propose to have regard to the current status quo (and, of course, its quality) as part of my consideration of the various factors referred to in section 60CC.
The father's proposals
In broad terms, the orders sought by the father are to the following effect:[42]
[42] The precise orders sought by the father are those contained in the minute attached to WSF.
a)The parties are to have equal shared parental responsibility for [X].
b)[X] is to live with the father on an unsupervised basis for progressively longer periods of time, until she lives primarily with him.
c)After [X] starts living with the father on a full time basis, the mother is to have defined contact with her, including:
i)each alternate weekend from after school on Friday to before school on Monday;
ii)from after school on Wednesday until before school on Friday in each "other" week;
iii)half of all short school term holidays;
iv)two weeks in the long summer school holidays; and
v)other special occasions.
d)Changeovers on non school days are to occur at [F].
e)[X] is to continue attending [B] Special School until the Principal informs the parties that [X] should change schools.
f)Both parties are to be restrained by injunction from giving [X] any treatment not authorised by [X]'s treating medical practitioners, and from giving [X] any invasive medical examinations not recommended as essential by [X]'s treating medical practitioners.
The father also seeks other "mechanical" type orders designed to effectively implement the substantive orders outlined above, and to otherwise govern the relationship between the parties.
The father's case is summarised in WSF[43] as follows:
The father proposes that the only way to prevent [X] being alienated from him and the paternal family by the mother and, in order to ensure that [X]'s special needs for routine, consistency, stability and special education are met, is for [X] to live with him on a day to day basis (after a graduated introductory phasing in regime as recommended by Mr O'Dwyer).
[43] At p. 2
The mother's proposals
In broad terms, the orders sought by the mother are to the following effect:[44]
[44] The precise orders sought by the mother are those contained in WSM.
a)The mother is to have sole parental responsibility for [X], and [X] is to live with her.
b)Subject to (c) below, the father is to have supervised contact with [X] (from 11 a.m. to 5 p.m. each Saturday).
c)The father is to consult with Prof Bruce Tong (Psychiatrist), or other nominated psychiatrist, "for advice, assistance and guidance with issues relating to the management of [X]'s autism" and, if he does so, and if Prof Tong (or other nominated psychiatrist) recommends that overnight contact should commence, then the father is to have contact with [X] on a graduating basis, leading to –
i)on approximately 3 weekends out of four: from after school Friday to 4:45 p.m. Saturday; and
ii)in the other week (and subject to appropriate notice being given by the mother): from after school Friday until 5:15 p.m. on that day.
d)Contact changeover is to take place (after a transitional stage) at [F].
e)Each party is to keep the other advised of relevant information relating to [X].
f)The father is to be restrained by injunction from taking [X] to any medical or allied health professional without the mother's written consent (save for medical emergencies), and he is also to be restrained from giving [X] any medication or medical or other treatment (or causing her to undergo testing) in relation to her autism without the mother's written consent.
g)The mother is to ensure that, save in the event of urgent medical or dental treatment, [X] is to attend the [B] Special School on each school day (and remain there from the start of the school day until the end of the school day).
The mother also seeks other "mechanical" type orders designed to effectively implement the substantive orders outlined above, and to otherwise govern the relationship between the parties.
The orders sought by the mother are similar to those sought by the ICL. As explained in WSM, however, the "significant difference between the mother's proposals and those of the ICL is that the mother considers the father an unacceptable risk to [X] if he has unsupervised time with her prior to him commencing counselling (with Prof Tong or other nominated psychiatrist)".
Nobody proposes an “equal time arrangement”
It is clear from the above that none of the parties (including the ICL) proposes that [X] should spend equal time with each parent. On the basis of the evidence before me, that is a sensible approach. As
Mr O'Dwyer said in evidence:[45]
Potentially the worst case scenario would be a shared care regime for this child. …
[45] See 14 June 2007 Transcript at p. 244
Issues
I emphasise that I have not reproduced the precise terms of the orders sought by the parties. I have simply referred to them in summary form.
In the broadest of broad terms, the issues in dispute are as follows:
a)Should the mother have sole parental responsibility (or sole parental responsibility in relation to defined issues) for [X], or should the parties have equal shared parental responsibility in the usual sense?
b)Should [X] continue to live with the mother, or should she live with the father?
c)How should contact be structured generally?
d)If [X] is to continue to live with the mother, then should the father's contact with her be supervised (on an initial basis, at least)?
Documents relied upon
At the commencement of the hearing on 12 June 2007, Mr Nicholson indicated that the mother relied upon her affidavit sworn 1 April 2007 and the affidavit of her mother sworn 6 October 2006. He also referred to the mother's outline of case document, and to Dr W’s affidavit sworn 9 May 2007. Mr Williams indicated that the father relied upon his affidavit sworn 12 April 2007 and his father's affidavit sworn in May 2007. He also referred to the father's outline of case document, to the first family report and to Dr G’ affidavit filed in November 2005.
Mr Barker indicated that the ICL relied upon the second family report. He also referred to the ICL’s outline of case document. After some discussion, Dr W's affidavit was included in the bundle of documents relied upon by the ICL.
None of the parties appear to have made any significant reference to either the first family report or Dr G’ affidavit (or to have relied upon their contents in any way) since the first day of the hearing in June 2007.[46] Indeed, Mr Williams, who originally mentioned the two documents, later indicated that he would not be relying upon them.[47]
[46] In relation to the first family report, see 12 June 2007 Transcript at p. 41 and 29 June 2007 Transcript at p. 6; in relation to Dr G, see 12 June 2007 Transcript at pp. 34 and 37, 13 June 2007 Transcript at pp. 95-6, 29 June 2007 Transcript at p. 4 and 4 June 2008 Transcript at pp. 188-9
[47] See 13 June 2007 Transcript at p. 165 and 14 June 2007 Transcript at p. 202
At the resumed hearing in June 2008, Ms Cranenburgh indicated that the father relied upon his affidavits sworn 21 November 2007,
5 February 2008and 9 May 2008. He also relied upon his father's affidavit sworn 28 April 2008. Mr Hebblewhite indicated that the mother relied upon her affidavit sworn 26 November 2007 and her affidavit sworn 29 May 2008. He also relied upon an affidavit of the Director of Nursing at [K] Hospital sworn 27 May 2008. Mr James indicated that the ICL did not rely upon any further documents.
The first family report
As indicated above, little reliance was placed on the first family report. It was prepared by Mr David Mitchell, psychologist, in August 2005, after he saw the parties (and [X]) on two occasions during the previous month.
The first family report contains a short history of the parties’ relationship, noting that it is unclear how the conflict between them began. According to Mr Mitchell, "the picture they painted was one of avoidance, hurt and blame when dealing with conflict". He also wrote:
The relationship tensions manifested in the mother as distress, frustration and ultimately angry criticism of the father about her perception of his lack of contribution or understanding. He (the father) perceived her complaints and criticism as abusive and it would seem became withdrawn and defensive, and instituted legal proceedings. She perceived his behaviour as uncaring and stonewalling.
Mr Mitchell wrote of the parties’ relationship (and their ability to communicate) both improving and deteriorating over the period of approximately one month that he had contact with them. He appeared confident, however, that they would be able to resolve their differences in the future, although they may require mediation.
Mr Mitchell wrote positively about the mother, recording that she possessed good insight into [X]'s needs. He also recorded that she was open to reflection and challenge around her own negotiation style.
Mr Mitchell seemed less positive about the father. Among other things, he felt that the father had exaggerated his contributions to [X]'s care. He also noted that the father confirmed that [X] had struggled with separation from the mother.
Mr Mitchell observed that [X] had a great deal of energy, but appeared more engaged with the mother than with the father. [X] also seemed very attached to the mother and "… while comfortable with the father, still sought her mother's reassurance from time to time". During the second session, [X] was more clingy to the mother, although she reacted well with the father.
It is apparent from the first family report that the parties had reached an agreement (through their own negotiations), to the effect that [X] should live with the mother and have contact with the father for a few hours on Monday and Thursday each week, and for an additional few hours on the weekend. The parties had also agreed to take responsibility for their own behaviour when communicating with each other, and to endeavour to communicate more effectively for [X]’s sake.
Overall, the first family report was cautiously optimistic. It is quite clear, however, that both parties presented as very stressed at the time of its preparation. It seems likely that the mother was dealing better with the stress than was the father. I note, though, that the diagnosis of [X] as autistic was then very recent.
Mr Mitchell was not called to give evidence at either hearing. His report, also, seems to have been mentioned in passing only.
The second family report
Mr O'Dwyer's report is dated 8 March 2007. It commences with a detailed (and useful) chronology and associated summary of the parties’ relationship.
Mr O'Dwyer wrote that the father was seeking significant change in the arrangements for [X] which then adhered (being the arrangements contained in the orders made on 20 October 2006). He added, however, that the father's proposals "wavered from a complete change of living arrangements to a shared care arrangement".
In my opinion, Mr O'Dwyer's comment regarding the fluidity associated with the father's proposals is broadly indicative of the father's attitude throughout the proceedings. For example, the precise orders that he was seeking were less than clear when the hearing commenced on 12 June 2007, and they remained unclear even during Mr Williams’ submissions on 29 June 2007.[48]
[48] See, for example, 29 June 2007 Transcript at p. 34
Mr O'Dwyer identified a number of issues which he regarded as being in dispute. All relate to forms of conflict between the parties and the inadequacy of their communication. He described the parties’ views as being "entrenched".
Mr O'Dwyer wrote that the father presented as "an intense and quiet person who has strongly held views" about [X]'s care. He added that the father struck him as "a somewhat solitary person" apart from his work and family links.
The father's complaints about the mother (in one form or another) are described in detail in the second family report. They are many.[49] He suggested, for example, that [X] would be "out of harm’s way" if she were to be placed in his care, and said that he would "offer communication" (whereas, presumably, the mother would not).
[49] See the 17 itemised matters on pp. 14 to 17 of the second family report
Mr O'Dwyer described the mother as being cooperative and pleasant throughout the interview process. She described her attempts to deal with the father and communicate with him in much the same way as she had dealt with the subject in her interviews with Mr Mitchell prior to the first family report. For example, she said that "she found the father's pursuit of her and denigration of her overwhelming at times, and found that she needs to ‘shutdown when my stress levels rise because I can't fix this (situation) and I am stressed trying to defend myself'’".
Mr O'Dwyer recorded personal background information about the mother (as he did about the father). He also recorded that the mother was not wholly negative about the father, noting that she spoke of his "positive aspects". He listed the mother's "primary concerns that should be considered by the court", many of which involved criticisms of the father,[50] but, by and large, her concerns appear more child focused than did those of the father. Mr O'Dwyer had noted earlier, however, that the mother "was keen to be seen by the court as cooperative and 'not the no contact mother that (the father) has made me out to be'".
[50] See the 11 itemised matters on pp. 21 to 24 of the second family report
The mother was very firm in refusing to consider (or even discuss) a change of care arrangements for [X]. She was of the view that such a change would be "so traumatic for [X] that it would leave your reversible effects upon her".
Mr O'Dwyer described his observations of [X], and her medical and developmental history, in some detail. He noted that [X] behaved in a similar manner in the father's household as she behaved in the mother's household, although her behaviour was "notably reactive and at times aggressive" while she was in the father's household.
Mr O'Dwyer met with the father's parents and the mother's mother, and described his impressions of them. He also made contact with [X]’s school and spoke with the Principal and Vice Principal, and with [X]'s class teacher. The school had noticed the "huge conflict" between the mother and the father "in every area". It had had significantly more contact with the mother than with the father.
Mr O'Dwyer concluded that it would not be [X]'s best interests for her parents to have equal shared parental responsibility, principally because of the level of conflict between them. He also concluded (and firmly recommended) that [X] should not share her time equally between the father and the mother. He recommended that [X] spend alternate weekends with the father (from Friday after school to Monday before school), and that she spend from Friday after school to Saturday morning with the father in the other week. In addition, he recommended that the father have contact for part of the school holidays, graduating to half of all school holidays over time. He also made recommendations in relation to birthdays and other special occasions.
In his discussion, Mr O'Dwyer recorded that, generally speaking, [X] appeared to be less anxious (or more comfortable) with the mother than with the father. He wrote that the mother has "provided a more child focused and 'in the moment' lifestyle for [X], whilst the father has provided a lifestyle of checking, monitoring, 'searching for other ' lifestyle".[51]
[51] See the second family report at p.40
Mr O'Dwyer recorded that the father had "significantly complicated matters by his anger towards the mother, his overt denigration of her and his continual questioning of her capacity to adequately care for [X]". Mr O'Dwyer saw the father's communication book entries as being wholly inappropriate, and tantamount to "a weapon" employed by the father against the mother. He expressed the view that the father was primarily responsible for the abuse contained in the communication book. Significantly, Mr O'Dwyer viewed the father's behaviours towards the mother as "a form of violence" that, if left unchecked, had the potential to undermine the mother's capacity to effectively provide good care for [X] in the long term.
In Mr O'Dwyer's opinion, [X]'s medical care (or, in other words, the issue of which of the parties should be responsible for making decisions in relation to [X]'s medical care) was the primary issue in dispute between the parties, and the one to which the court should turn its primary focus. He felt that, if the court did not resolve that issue, then "the parents will remain in constant conflict, with the father identifying new treatments/ideas and the mother needing to block".
Mr O'Dwyer's overall conclusion was to the effect that [X] should continue to live primarily with the mother, and that there is insufficient information to support a change of primary parent. He felt (on the evidence available to him) that it may be detrimental to [X] if such a change were to occur.
Mr O'Dwyer's evidence
Mr O'Dwyer's evidence (to the extent that I consider it relevant) was as follows:
a)He observed that [X] appeared to respond better to the mother's strategies than to the father’s strategies. Further, the mother seemed more confident and comfortable dealing when [X]'s more challenging behaviours than did the father.
b)Notwithstanding the challenges associated with caring for [X], the mother was prepared to "find the positives" in that role. On the other hand, the father was “exceptionally earnest in his endeavour to find everything in his power that would support [X] in her progression to adulthood, including searching for some cure for [X]". In other words, the father’s approach was less positive than the mother’s approach.
c)In endeavouring to understand the nature of the dispute between the parties, it is helpful to focus on "the nub of the issue", which is "a parent's grief at the discovery of their child having a condition like [X]". Approaching the matter from this point of view, it is necessary to consider of the four stages of mourning. Those stages are:
i)accepting the reality of the loss;
ii)experiencing the pain of grief;
iii)adjusting to an environment that includes the loss; and
iv)withdrawing the emotional energy that is put into grief and reinvesting in life.
d)The mother has progressed through the stages of mourning described above, but the father has not. In essence, he has "stumbled along". Indeed, he appears to be stalled at the first stage (in that he seems unable to accept the reality of the loss – which he would describe as "not giving up on hope").
e)Equal shared parental responsibility is strongly contraindicated, because of the difficulties associated with managing the conflict that arises from the parties’ differences of opinion. Such an arrangement (equal shared parental responsibility) might lock them into perpetual dispute. Put another way, "there is no capacity for the parties to work together in any meaningful way in relation to [X]".[52]
f)Although the mother is prepared to try to resolve issues by mediation and other means, the father "in his earnestness would overstep boundaries". Further, the father does not appear to have any capacity to shift his entrenched views regarding the mother, and regarding strategies that he considers appropriate to manage [X]'s autism. In that respect, the father is "very focused".[53] The father needs to learn to "stop reacting and accept what can be managed, given the situation". Until he works through the issues associated with grieving (as described above) – both psychologically and emotionally – it will be very difficult for the father.
g)The father lacks insight into the effect of his actions (and his attitude).
h)At this point in time, the only "practical way forward" is for the mother to have sole parental responsibility for [X]. This practicality arises from the fact that [X] is a child with high special needs. Caring for her is in itself a very difficult task, without the constant battle of trying to determine what should or should not be done (or can or cannot be done) to meet her needs.
i)Therapeutic counselling of the parties (for the purpose of improving communication between them) may not be successful. They need "firmer direction".[54] Therapeutic counselling will have a better chance of success if both parties agree to the process (as opposed to the court imposing it on them).
j)It is appropriate and in [X]'s best interests that she attend school on time and regularly.
[52] See 14 June 2007 Transcript at p. 239
[53] See 14 June 2007 Transcript at p. 242
[54] See 14 June 2007 Transcript at p. 238
Mr O'Dwyer said that this was the first time in some 15 years as a report writer that he had expressed so strongly his recommendation that there be neither equal shared parental responsibility nor equal time spent. To that extent, this is clearly an unusual case from his point of view. His recommendation was to the effect that the court should proceed with any proposed changes very slowly indeed, to give the father time to absorb them and demonstrate that he will not undermine them.
In response to Mr Williams’ suggestion that the father's desire to explore areas of potential medical science in order to benefit [X] should not (in itself) lead to a conclusion to the effect that the father needs psychological or other counselling, Mr O'Dwyer emphasised that his concern was not with the fact that the father wished to make those inquiries (which is understandable) but with the manner in which the father then conveyed information to the mother. He said that the father's lack of engagement with the mother, and lack of capacity to take on board her considerations, was a serious cause for concern.
Mr O'Dwyer described the father's approach as a unilateral one, which ultimately turned into a pattern of abuse directed to the mother.[55]
[55] See, for example, 14 June 2007 Transcript at p.263
Mr O'Dwyer also gave evidence about the amount of time that the father should spend with [X], and its structure. Mr Williams submitted, and I agree, that there was a degree of inconsistency associated with Mr O'Dwyer's evidence relating to this subject. There seems little point in reviewing the relevant inconsistencies in these Reasons. Reduced to its bare minimum, however, Mr O'Dwyer's view was clearly to the effect that [X] should live with the mother and have regular (weekly) overnight contact with the father – but not during the school week. He was very firmly of the view that an equal shared care arrangement (involving equal time) would be the worst of all options ("the worst case scenario") from [X]'s point of view.[56]
[56] See, for example, 14 June 2007 Transcript at pp.236 and 244
Mr O'Dwyer's recommendation was that the father's school holiday contact with [X] should eventually increase to the point at which she is spending blocks of something in the order of three (or a maximum of five) days during school holidays with the father. Mr O'Dwyer's view was that the increase should occur gradually and incrementally (one or two days at a time). Great care should be taken to ensure that [X] does not become too distressed during extended periods with the father. If she does, then it was Mr O'Dwyer’s hope that the father "loves [X] enough to acknowledge that he needs to return her" to the mother.[57]
[57] See 14 June 2007 Transcript at p.237
[X]'s autism
A very large proportion of the case revolved around [X]'s autism or, more accurately, the father's views and beliefs regarding [X]'s autism and its management or treatment.
It is not in dispute that [X] has been diagnosed with autism. Nor is it in dispute that it is particularly important that she have routine, consistency and security.[58]
[58] See, for example, WSF at p. 2
In the broadest of broad terms, it is fair to summarise the parties’ differing approaches to the issue of [X]'s autism by recording that the mother has adopted a “traditional”, comparatively conservative approach, whereas the father has adopted a more proactive, but assertively "alternative", approach.
Ms Cranenburgh describes the parties’ differing approaches to [X]'s autism in the following way:
While the mother accepted [X]'s condition and made little effort to seek support services or information, the father appeared to go overboard in his research as to causes and possible remedies. He made the mistake of trying to "bulldoze" the mother to consider such possible ways of helping [X].
I do not agree that the mother "made little effort to seek support services information". In my opinion, she has behaved responsibly and in a mature fashion in her struggles to deal with [X]'s autism.
Dr G’ report
Dr G is a paediatrician, with rooms in [omitted], a suburb of Melbourne. He saw the parties, with [X] and the maternal grandmother, in July 2005. His report (dated 28 July 2005) deals with some historical matters, and records that the mother's pregnancy with [X] was uneventful, the delivery was normal and [X]'s condition at birth was satisfactory.
Dr G wrote that [X] was "very cuddly with her mum and very concerned about any separation from her", but "not cuddly with dad". He recorded that "maternal attachment is a big factor".
Dr G noted that [X] does not like change and that she finds it difficult to accommodate to strange houses and places where she has never been. Her response in such situations can be "quite severe" and unpredictable.
Although Dr G did not examine [X], his impression was that she seemed comfortable with each of the three adults present in the room during the consultation. He felt that [X]'s presentation was "fairly typical of autism", and summarised the diagnosis as follows:
([X]) has very substantial difficulties in her ability to understand incoming information, particularly that related to interpersonal and social information, understanding the use and purpose of language, and being able to sort, organise and appreciate the significance of other external inputs.
Save for paragraphs 8 and 9 of the orders made in this Court on
20 October 2006(which orders relate to the removal of the child from the jurisdiction), all previous parenting orders relating to the child be discharged.
The child live with the mother.
Subject to paragraph 5 below, the mother and the father have equal shared parental responsibility for the child.
The mother have sole parental responsibility for the child in relation to the child's health and health care, and all medical and dental issues (including management of the child's autism).
The father, his servants and agents, be restrained by injunction from taking the child to or having the child seen by any Medical Professional without the written consent of the mother having first been obtained, save for the purposes of medical attention which is required on an urgent basis, in which case the father must immediately notify the mother of the following details:
(a)the name and contact details of the Medical Professional;
(b)the medical complaint for which the child was taken to the Medical Professional;
(c)any treatment and/or medication prescribed for or provided to the child; and
(d)the reasons for the prescription for or provision of such medication and/or treatment.
Subject to paragraph 8 below, the father, his servants and agents, be restrained by injunction from administering, giving or providing the child with any form of Medical Intervention, including, but not limited to, the Listed Therapies, without the written consent of the mother having first been obtained.
The injunction contained in paragraph 7 above does not apply to Medical Intervention administered, given or provided to the child on an urgent basis by or upon the direct advice of a Medical Professional– provided that such Medical Intervention does not include or involve the Listed Therapies or any of them (in relation to which the injunction contained in paragraph 7 continues to adhere).
Subject to paragraphs 10, 11 and 12 below, the father spend time with the child as follows:
(a)from the date of the within orders until 17 April 2009: from 10 a.m. to 5 p.m. each Saturday;
(b)thereafter, and until 16 October 2009:
(i)each alternate weekend from 10 a.m. on Saturday to 5 p.m. on Sunday; and
(ii)each other week from after school (or 4 p.m. in the event of a non school day) on Thursday to the commencement of school (or 9 a.m. in the event of a non school day) on Friday;
(c)thereafter:
(i)each alternate weekend from after school (or 4 p.m. in the event of a non school day) on Friday to 5 p.m. on Sunday; and
(ii)each other week from after school (or 4 p.m. in the event of a non school day) on Thursday to the commencement of school (or 9 a.m. in the event of a non school day) on Friday;
(d)notwithstanding all other provisions of the within orders:
(i)on the child's birthday in each alternate year commencing 2010, provided that:
(A) if the child's birthday falls on a school day, then contact pursuant to this provision shall be from after-school on the child's birthday until the commencement of school on the following morning (or 9 a.m. in the event of a non school day); and
(B) if the child's birthday falls on a non school day, then contact pursuant to this provision shall be from 10 a.m. on the child's birthday until the commencement of school on the following morning (or 9 a.m. in the event of a non school day).
(ii)
from 5 p.m. on the day before Father's Day until 5 p.m. on Father's Day each year (so that the child spends the said
24-hour period with the father);
(iii)the father's time with the child be suspended from 5 p.m. on the day before Mother's Day until 5 p.m. on Mother's Day in each year (so that the child spends the said 24-hour period with the mother);
(iv)from 4 p.m. on Christmas Eve to 4 p.m. on Christmas Day in 2009, and in each alternate year thereafter (so that the child spends the said 24-hour period with the father);
(v)the father's time with the child be suspended from 4 p.m. on Christmas Eve to 4 p.m. on Christmas Day in 2010, and in each alternate year thereafter (so that the child spends the said 24-hour period with the mother);
(vi)from 4 p.m. on Christmas Day to 4 p.m. on Boxing Day in 2010, and in each alternate year thereafter (so that the child spends the said 24-hour period with the father);
(vii)
the father's time with the child be suspended from 4 p.m. on Christmas Day to 4 p.m. on Boxing Day in 2009, and each alternate year thereafter (so that the child spends the said
24-hour period with the mother); and
(e)at such other times as shall be agreed between the father and the mother in writing.
Subject to paragraphs 11 and 12 below, the father's time with the child referred to in paragraph 9 above must be supervised at all times by Mr P (or, in the event of his unavailability, by either Ms M or Ms P) or by such other person as shall be agreed between the father and the mother in writing.
The father must –
(a)forthwith, and as soon as an appointment becomes available, consult with the Expert for the Consultation Program;
(b)continue to attend upon and consult with the Expert throughout the Consultation Program, and for such period as the Expert shall consider appropriate;
(c)comply with all directions given and requests made by the Expert throughout the Consultation Program; and
(d)pay all costs associated with the Consultation Program as and when they shall full due.
Upon the father providing to the mother a written recommendation from the Expert that unsupervised contact or time should commence (whether in conjunction with the father attending the Consultation Program or otherwise), the requirement for supervision in paragraph 10 above be forthwith discharged and the father do commence to spend unsupervised time with the child in accordance with paragraph 9 above.
Subject to paragraphs 14 and 15 below, and unless the parties otherwise agree in writing, changeovers for the purpose of the father spending time with the child (where such changeovers do not take place at the child's school) must take place on the footpath directly in front of the main entrance to the [address omitted], Bendigo, and both parties must leave the area immediately after each changeover has occurred.
The mother and the father must forthwith do all such acts and things and sign all such documents as shall be necessary to apply to the [F] to have changeovers between the parties (where such changeovers do not take place at the child's school) facilitated at [F].
In the event that [F] accepts an application by the father and the mother to facilitate changeovers, then in lieu of paragraph 13 above, and unless the parties otherwise agree in writing, changeovers (where such changeovers do not take place at the child's school) must take place at [F] at the times specified in paragraph 9 above, or at such other equivalent times as nominated by [F] (in order to ensure that the father spends the same time with the child, or as close to the same time as is practicable in all the circumstances) in consultation with the parties.
Subject to paragraph 17 below, and unless the parties otherwise agree in writing, the father and the mother must communicate with each other in relation to issues involving the child by SMS text messages, and both parties be restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other parent (or any member of the other parent's household) in such SMS text messages.
If the parties seek to discuss issues in relation to which they have equal shared parental responsibility, then, unless the parties otherwise agree in writing, the parties must both attend mediation at an approved Family Dispute Resolution/Mediation or Relationship Centre, or with a Family Dispute Resolution Provider listed on the Attorney-General's Family Pathways website, with the cost of any such mediation to be paid equally by the father and the mother.
The mother must:
(a)keep the father advised, at all times, of her current residential address and contact telephone or landline and mobile number;
(b)advise the father in writing of any change of address or contact telephone number/s within seven days of any such change;
(c)advise the father immediately in the event of the child suffering from any serious illness or injury;
(d)authorise any medical practitioner upon whom the child may attend from time to time to communicate with the father in relation to the child's medical condition and/or requirements; and
(e)ensure that, except for the purposes of the child obtaining urgent medical or dental treatment, or pursuant to the direction of the school, the child:
(i)attends the [B] Special School (or such other school as the child shall attend from time to time) on each school day;
(ii)arrives promptly at the start of each school day; and
(iii)remains at school until the end of each school day.
The father must:
(a)keep the mother advised, at all times, of his current residential address and contact telephone or landline and mobile number;
(b)advise the mother in writing of any change of address or contact telephone number/s within seven days of any such change;
(c)advise the mother immediately in the event of the child suffering from any serious illness or injury;
(d)authorise any medical practitioner upon whom the child may attend from time to time to communicate with the mother in relation to the child's medical condition and/or requirements; and
(e)ensure that, except for the purposes of the child obtaining urgent medical or dental treatment, or pursuant to the direction of the school, the child:
(i)attends the [B] Special School (or such other school as the child shall attend from time to time) on each school day;
(ii)arrives promptly at the start of each school day; and
(iii)remains at school until the end of each school day.
In the event of the child missing school for medical or dental reasons, the parent in whose care she is at the time must forthwith provide the school and the other parent, with a medical/dental certificate explaining the reason for the absence.
Subject to the requirements of the [B] Special School (or such other school as the child shall attend from time to time), both parents be at liberty to attend parent-teacher interviews and school events to which parents are normally invited, and to receive school reports and other information normally provided to parents.
The mother, her servants and agents be restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the father; and
(b)discussing these proceedings,
to, with or in the presence or hearing of the child, and from permitting any other person to do so.
The father, his servants and agents be restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the mother; and
(b)discussing these proceedings,
to, with or in the presence or hearing of the child, and from permitting any other person to do so.
The Independent Children's Lawyer be at liberty to provide a copy of these orders to any of the following:
(a)the principal or delegate of the principal of the school attended by the child;
(b)all medical practitioners and/or allied health professionals attending upon the child;
(c)all counsellors of the child; and
(d)all psychiatrists, psychologists or counsellors that either party may attend or consult pursuant to these orders.
The order for the appointment of the Independent Children's Lawyer be discharged with effect from:
(a)the date upon which the father provides to the mother the written recommendation from the Expert to the effect that unsupervised and overnight contact or time should commence (whether in conjunction with the father attending the Consultation Program or otherwise), thereby causing the requirement for supervision in paragraph 9 above to be discharged and permitting the father to commence spending unsupervised time with the child; or
(b)1 October 2009,
whichever shall first occur.
All extant applications otherwise be dismissed.
Annexure B
Orders
In these orders:
(a)"the child" means [X] born in 2002;
(b)"Medical Professional" means any medical practitioner or medical or allied health professional;
(c)"Medical Intervention" means any form of medication or medical or allied health treatment, therapy or testing whatsoever;
(d)"the Listed Therapies" means the following:
(i)heavy metal detoxification or chelation therapy (however described);
(ii)organic colloidal minerals; and
(iii)Epsom salt baths;
(e)"the Expert" means Prof Bruce Tong, Psychiatrist of Woodend, or such other psychiatrist, psychologist or counsellor with experience in autism disorder as shall be nominated by the Independent Children's Lawyer;
(f)"the Consultation Program" means advice, assistance and guidance to be obtained by and provided to the father with respect to issues associated with the management of the child's autism;
(g)"[F]" means [F] Contact Centre in Bendigo;
(h)“Term Holidays” means the “short” school holidays at the end of first, second and third term in each school year;
(i)“Summer Holidays” means the “long” Summer school holidays, between the end of one school year and the beginning of the next; and
(j)all school holidays, whether Term Holidays or Summer Holidays, shall be deemed to:
(i)commence at the completion of school on the last day of the school term; and
(ii)conclude at the commencement of school on the first day of the next school term.
Save for paragraphs 8 and 9 of the orders made in this Court on
20 October 2006(which orders relate to the removal of the child from the jurisdiction), all previous parenting orders relating to the child be discharged.
The child live with the mother.
Subject to paragraph 5 below, the mother and the father have equal shared parental responsibility for the child.
The mother have sole parental responsibility for the child in relation to the child's health and health care, and all medical and dental issues (including management of the child's autism).
The father, his servants and agents, be restrained by injunction from taking the child to or having the child seen by any Medical Professional without the written consent of the mother having first been obtained, save for the purposes of medical attention which is required on an urgent basis, in which case the father must immediately notify the mother of the following details:
(a)the name and contact details of the Medical Professional;
(b)the medical complaint for which the child was taken to the Medical Professional;
(c)any treatment and/or medication prescribed for or provided to the child; and
(d)the reasons for the prescription for or provision of such medication and/or treatment.
Subject to paragraph 8 below, the father, his servants and agents, be restrained by injunction from administering, giving or providing the child with any form of Medical Intervention, including, but not limited to, the Listed Therapies, without the written consent of the mother having first been obtained.
The injunction contained in paragraph 7 above does not apply to Medical Intervention administered, given or provided to the child on an urgent basis by or upon the direct advice of a Medical Professional– provided that such Medical Intervention does not include or involve the Listed Therapies or any of them (in relation to which the injunction contained in paragraph 7 continues to adhere).
Subject to paragraphs 10, 11 and 12 below, the father spend time with the child as follows:
(a)from the date of the within orders until 17 April 2009: from 10 a.m. to 5 p.m. each Saturday;
(b)thereafter, and until 16 October 2009:
(i)each alternate weekend from 10 a.m. on Saturday to 5 p.m. on Sunday; and
(ii)each other week from after school (or 4 p.m. in the event of a non school day) on Thursday to the commencement of school (or 9 a.m. in the event of a non school day) on Friday;
(c)thereafter:
(i)subject to paragraphs 24 and 25 below, each alternate weekend from after school (or 4 p.m. in the event of a non school day) on Friday to 5 p.m. on Sunday; and
(ii)subject to paragraphs 24 and 25 below, each other week from after school (or 4 p.m. in the event of a non school day) on Thursday to the commencement of school (or 9 a.m. in the event of a non school day) on Friday;
(iii)for four consecutive days during all Term Holidays –
(A) commencing at 5 p.m. on the second Sunday after the completion of the preceding school term (and concluding at 5 p.m. on the following Thursday) in 2010 and each alternate year thereafter; and
(B) commencing at 5 p.m. on the first Sunday after the completion of the preceding school term (and concluding at 5 p.m. on the following Thursday) in 2011 and each alternate year thereafter;
(iv)for four days during the Summer Holidays in 2010/11 and 2011/12, commencing at 5 p.m. on the first Sunday after 31 December and concluding at 5 p.m. on the following Thursday; and
(v)for five days during the 2012/13 Summer Holidays, and in all Summer Holidays thereafter, commencing at 5 p.m. on the first Sunday after 31 December (and concluding at 5 p.m. on the following Friday).
(d)notwithstanding all other provisions of the within orders:
(i)on the child's birthday in each alternate year commencing 2010, provided that:
(A) if the child's birthday falls on a school day, then contact pursuant to this provision shall be from after-school on the child's birthday until the commencement of school on the following morning (or 9 a.m. in the event of a non school day); and
(B) if the child's birthday falls on a non school day, then contact pursuant to this provision shall be from 10 a.m. on the child's birthday until the commencement of school on the following morning (or 9 a.m. in the event of a non school day).
(ii)
from 5 p.m. on the day before Father's Day until 5 p.m. on Father's Day each year (so that the child spends the said
24-hour period with the father);
(iii)the father's time with the child be suspended from 5 p.m. on the day before Mother's Day until 5 p.m. on Mother's Day in each year (so that the child spends the said 24-hour period with the mother);
(iv)from 4 p.m. on Christmas Eve to 4 p.m. on Christmas Day in 2009, and in each alternate year thereafter (so that the child spends the said 24-hour period with the father);
(v)the father's time with the child be suspended from 4 p.m. on Christmas Eve to 4 p.m. on Christmas Day in 2010, and in each alternate year thereafter (so that the child spends the said 24-hour period with the mother);
(vi)from 4 p.m. on Christmas Day to 4 p.m. on Boxing Day in 2010, and in each alternate year thereafter (so that the child spends the said 24-hour period with the father);
(vii)
the father's time with the child be suspended from 4 p.m. on Christmas Day to 4 p.m. on Boxing Day in 2009, and each alternate year thereafter (so that the child spends the said
24-hour period with the mother); and
(e)at such other times as shall be agreed between the father and the mother in writing.
Subject to paragraphs 11 and 12 below, the father's time with the child referred to in paragraph 9 above must be supervised at all times by Mr P (or, in the event of his unavailability, by either Ms M or Ms P) or by such other person as shall be agreed between the father and the mother in writing.
The father must –
(a)forthwith, and as soon as an appointment becomes available, consult with the Expert for the Consultation Program;
(b)continue to attend upon and consult with the Expert throughout the Consultation Program, and for such period as the Expert shall consider appropriate;
(c)comply with all directions given and requests made by the Expert throughout the Consultation Program; and
(d)pay all costs associated with the Consultation Program as and when they shall full due.
Upon the father providing to the mother a written recommendation from the Expert that unsupervised contact or time should commence (whether in conjunction with the father attending the Consultation Program or otherwise), the requirement for supervision in paragraph 10 above be forthwith discharged and the father do commence to spend unsupervised time with the child in accordance with paragraph 9 above.
Subject to paragraphs 14 and 15 below, and unless the parties otherwise agree in writing, changeovers for the purpose of the father spending time with the child (where such changeovers do not take place at the child's school) must take place on the footpath directly in front of the main entrance to the [address omitted], Bendigo, and both parties must leave the area immediately after each changeover has occurred.
The mother and the father must forthwith do all such acts and things and sign all such documents as shall be necessary to apply to the [F] to have changeovers between the parties (where such changeovers do not take place at the child's school) facilitated at [F].
In the event that [F] accepts an application by the father and the mother to facilitate changeovers, then in lieu of paragraph 13 above, and unless the parties otherwise agree in writing, changeovers (where such changeovers do not take place at the child's school) must take place at [F] at the times specified in paragraph 9 above, or at such other equivalent times as nominated by [F] (in order to ensure that the father spends the same time with the child, or as close to the same time as is practicable in all the circumstances) in consultation with the parties.
Subject to paragraph 17 below, and unless the parties otherwise agree in writing, the father and the mother must communicate with each other in relation to issues involving the child by SMS text messages, and both parties be restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other parent (or any member of the other parent's household) in such SMS text messages.
If the parties seek to discuss issues in relation to which they have equal shared parental responsibility, then, unless the parties otherwise agree in writing, the parties must both attend mediation at an approved Family Dispute Resolution/Mediation or Relationship Centre, or with a Family Dispute Resolution Provider listed on the Attorney-General's Family Pathways website, with the cost of any such mediation to be paid equally by the father and the mother.
The mother must:
(a)keep the father advised, at all times, of her current residential address and contact telephone or landline and mobile number;
(b)advise the father in writing of any change of address or contact telephone number/s within seven days of any such change;
(c)advise the father immediately in the event of the child suffering from any serious illness or injury;
(d)authorise any medical practitioner upon whom the child may attend from time to time to communicate with the father in relation to the child's medical condition and/or requirements; and
(e)ensure that, except for the purposes of the child obtaining urgent medical or dental treatment, or pursuant to the direction of the school, the child:
(i)attends the [B] Special School (or such other school as the child shall attend from time to time) on each school day;
(ii)arrives promptly at the start of each school day; and
(iii)remains at school until the end of each school day.
The father must:
(a)keep the mother advised, at all times, of his current residential address and contact telephone or landline and mobile number;
(b)advise the mother in writing of any change of address or contact telephone number/s within seven days of any such change;
(c)advise the mother immediately in the event of the child suffering from any serious illness or injury;
(d)authorise any medical practitioner upon whom the child may attend from time to time to communicate with the mother in relation to the child's medical condition and/or requirements; and
(e)ensure that, except for the purposes of the child obtaining urgent medical or dental treatment, or pursuant to the direction of the school, the child:
(i)attends the [B] Special School (or such other school as the child shall attend from time to time) on each school day;
(ii)arrives promptly at the start of each school day; and
(iii)remains at school until the end of each school day.
In the event of the child missing school for medical or dental reasons, the parent in whose care she is at the time must forthwith provide the school and the other parent, with a medical/dental certificate explaining the reason for the absence.
Subject to the requirements of the [B] Special School (or such other school as the child shall attend from time to time), both parents be at liberty to attend parent-teacher interviews and school events to which parents are normally invited, and to receive school reports and other information normally provided to parents.
The mother, her servants and agents be restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the father; and
(b)discussing these proceedings,
to, with or in the presence or hearing of the child, and from permitting any other person to do so.
The father, his servants and agents be restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the mother; and
(b)discussing these proceedings,
to, with or in the presence or hearing of the child, and from permitting any other person to do so.
Subject to paragraph 9(d) above, the father's time spent with the child pursuant to paragraph 9(c)(i) and (ii) above be suspended during all Term Holidays (commencing in 2010), and do resume after such holidays in an unbroken cycle as if such holidays had not occurred.
Subject to paragraph 9(d) above, the father's time spent with the child pursuant to paragraph 9(c)(i) and (ii) above be suspended during all Summer Holidays (commencing with the Summer Holidays in 2010/11) as follows:
(a)in the 2010/11 and 2011/12 Summer Holidays – for one week immediately after the four day period during which the child shall spend time with the father (in other words, from 5 p.m. on the Thursday that the child is returned to the mother to 5 p.m. on the following Thursday), so that the child spends the said one week period with the mother;
(b)in the 2012/13 Summer Holidays (and in all Summer Holidays thereafter) – for one week immediately after the five day period during which the child shall spend time with the father (in other words, from 5 p.m. on the Friday that the child is returned to the mother to 5 p.m. on following Friday), so that the child spends the said one week period with the mother,
but not otherwise be suspended, and the father's time spent with the child pursuant to paragraph 9(c)(i) and (ii) above do occur before and/or after such block periods with the mother and the father in an unbroken cycle, and as if such block periods with the mother and the father had not occurred.
The Independent Children's Lawyer be at liberty to provide a copy of these orders to any of the following:
(a)the principal or delegate of the principal of the school attended by the child;
(b)all medical practitioners and/or allied health professionals attending upon the child;
(c)all counsellors of the child; and
(d)all psychiatrists, psychologists or counsellors that either party may attend or consult pursuant to these orders.
The order for the appointment of the Independent Children's Lawyer be discharged with effect from:
(a)the date upon which the father provides to the mother the written recommendation from the Expert to the effect that unsupervised and overnight contact or time should commence (whether in conjunction with the father attending the Consultation Program or otherwise), thereby causing the requirement for supervision in paragraph 9 above to be discharged and permitting the father to commence spending unsupervised time with the child; or
(b)1 October 2009,
whichever shall first occur.
All extant applications otherwise be dismissed.
See, for example, Hungerford & Tank (2007) FamCA 637 and M & S (2006) FamCA 1408 at
para. 36
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