Pembroke and Heron

[2015] FamCA 1087

FAMILY COURT OF AUSTRALIA

PEMBROKE & HERON [2015] FamCA 1087

FAMILY LAW – CHILDREN – Interim Parenting – Where there is one child who is two years of age – Where the child has been living with the mother and spending time with the father, supervised by the maternal grandmother – Where this arrangement was found to no longer be in the child’s best interests – Where there is a concern that the child suffers from Autism Spectrum Disorder – Orders made for the time between the child and father to be suspended until the matter comes before the Court for a Less Adversarial Trial – Orders made for an Independent Children’s Lawyer to be appointed, the matter expedited and for the preparation of an updated expert report.

Family Law Act 1975 (Cth) – Part VII

APPLICANT: Mr Pembroke

RESPONDENT: Ms Heron

FILE NUMBER: SYC 4058 of 2014

DATE DELIVERED: 21 October 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 21 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richards

SOLICITOR FOR THE APPLICANT: Mills Oakley Lawyers

COUNSEL FOR THE RESPONDENT: Ms Clifford

SOLICITOR FOR THE RESPONDENT: Hamish Cumming Family Lawyers

Orders

1. That an Independent Child Lawyer is appointed for the child B (the child) born on … 2013 and the Court requests the Director of Legal Aid New South Wales to make the appropriate arrangements.

2. That each party forthwith forward to the said Director a copy of all documents filed by them in these proceedings.

3. That the mother also include a copy of all reports by Dr I, Dr C and by Mr J.

4. That the parties, and if recommended by Dr C, Ms K Heron, the paternal grandparents and any other significant adults, attend upon Dr C for preparation of an updated expert’s report.

5. That the substantive parenting proceedings be expedited by the Judicial Services Manager allocating the earliest first day in the Less Adversarial Trial before a judge as soon as possible after 26 February 2016 to be listed before a judge other than Johnston or Rees JJ.

6. That all time and contact between the child and his father between now and the first day of the Less Adversarial Trial be suspended. 

7. That by consent the mother forthwith cause photographs of the father to be displayed at the child’s residence in places where the child will regularly see such photographs and the mother shall maintain such photographs pending further order.

8. That by consent the legal representatives of the father have leave to photocopy all reports by Mr J.

9. That by consent each parent pay one half of Dr C’s fees.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pembroke & Heron has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4058 of 2014

Mr Pembroke

Applicant

And

Ms Heron

Respondent

REASONS FOR JUDGMENT

1. This is the fourth occasion that these complex parenting proceedings have been before this Court involving determination of interim parenting arrangements in respect of the parties’ child, the child Heron-Pembroke who was born in 2013 and who is two years of age. 

2. On 9 February 2015, after a short interim hearing, I made orders in relation to the child.  I referred, on that occasion, to brief background matters in my Reasons and I do not propose to repeat those background matters, except to say that this Court previously put in place orders on two occasions by the learned Senior Registrar and other orders.

3. As I have said previously, there has been real difficulty in terms of the child having appropriate opportunities to develop a relationship with his father. 

4. When the proceedings came before the learned Senior Registrar, he appointed Dr C as single expert.  Dr C interviewed the parties, the mother’s mother Ms K Heron and the child on 31 March 2015.  He completed his report on 20 April 2015. 

5. A broad reading of Dr C’s report indicates that this is a case of considerable complexity.  Dr C has made some assessment of the relationship between the child and each of his parents.  In terms of attachment, Dr C says:  

   [The child] has a primary but rather anxious insecure attachment to his mother which, at times, becomes somewhat disorganised. 

6. Dr C referred to the behaviours, some of which I have referred to in the previous Reasons, which the mother set out in her affidavits now over some time.  These include biting.  The mother said there has been bet wetting and there have been lots of behaviours clearly of concern to each of the parents, to Dr C and also to other professionals who have been involved in this case.  I shall come to these in due course.  Dr C says about these behaviours:  

   Indeed, virtually all of [the child’s] pre and post visit concerning behaviours fall within a recognised pattern of attachment disruption from a primary attachment figure.

7. Dr C then goes into some detail about what those are.  He talks about difficulties that there have been in terms of the child having the opportunity for a relationship with his father and those difficulties, from my memory, go back to some of the geographical difficulties.  The mother moved away at quite some distance from the father’s place of employment.  That posed some physical problems in terms of regularity and frequency of opportunity for the child to spend some time with his dad. 

8. Dr C says, still on page 23 of his report:  

   As a consequence, at the moment the child’s attachment to his father does not seem to be very strong.  He clearly recognises his father but he does not see his father as a secure base yet.  And particularly at the beginning of the visits, he often touches base with his maternal grandmother.

9. Dr C refers to the child’s attachment disorder as being a “…primary but rather anxious insecure attachment to his mother”.  Dr C said also on page 23 of his report:

   To correct his attachment disorder there needs to be a period of stabilisation in his relationship with his mother.  Once that is achieved, a better attachment to his father will proceed much more rapidly.

10. Having said that, Dr C thinks the child is probably at an age and stage now where he could manage spending blocks of time with his father, comparable to those that he currently spends.  Under my orders, these were periods of three hours on weekends.  Because of the geography that was involved and given the parameters of the disputation between the parties on the earlier occasion, I had hoped that it would be in the child’s interest and able to operate satisfactorily, for the three hours on the weekend when the father was going to go to E Town to spend time with him to be repeated on the other day of the weekend given that the father would have invested a considerable amount in going from the place where he lives to E Town.

11. Given what all the experts have said over the years about it generally being in the interests of very young children to have frequent but not too long periods of time with their non-resident parent, that seemed to me to be within the parameters of what one would hope would be in the interests of the child.  But, in fact Dr C said in his report that he did not think that arrangement would help the child.  And true it is that he has come up with an overall recommendation which is different from that.  He talks about this at page 28 of his report and he said:  

    A major problem in this case … is the geographical distance between the parents, but in my view it is not insurmountable.  It appears agreed that the drive between [D Town] [where the father lives] and [E Town] is about two and a half hours.  In my view in the stabilisation phase, which I think should last for about six months, [the child] should get into a routine of seeing his father twice a week in [E Town] for about four hours.  It is a matter for [the father] whether members of his extended family attend these visits, but I think it would probably be an excellent idea if a few key members were introduced very slowly ...

12. Dr C said that the two visits should be separated by several days with one occurring mid-week and the other on the weekend.  I infer from this that the arrangement I had referred to under the current orders, of the two visits being on consecutive days, is part of the reason why Dr C thought that that was not an appropriate arrangement. 

13. Dr C goes on to say that “[t]he schedule should be adhered to very tightly.”.  He said that:

    Probably [the child] will show some separation anxiety at the start of the first few visits because of the absence of his mother or [Ms K Heron].

14. Dr C said that he thought the child was at the stage where it would not be necessary for either his mother or his grandmother to be involved in the visits. 

15. What I did not say about the orders that I had put in place for that regime of visits was that I had included in those orders an order to the effect that the grandmother – that is, maternal grandmother, Ms K Heron – would be present during the times that the child would be visiting his father, unless she was not available, in which case the child’s mother would do the accompanying of the child for those times with his father.

16. I had hoped that, in circumstances where we had a very familiar figure to the child in the form of Ms K Heron, the child would not only be able to spend time with his father but be able to start to form an attachment with his father.  I also hoped that after some months things would have been going a lot better than, in fact, they have been going since the parties separated.

17. Unfortunately, the antithesis of what I had hoped for has, in fact, occurred. 

18. It would appear that the child’s father threw himself into the periods of time with the child with great commitment and great hopes.  I presume the maternal grandmother did also, although the father is very critical of her behaviour.  I have had the opportunity of reading a very long and detailed account of difficulties on most, if not almost every one, of the occasions for time between the child and his father that I put in place under the February orders up to late July when the whole arrangement broke down.  The mother decided it was all just too disruptive for the child and no longer made arrangements for her mother to present the child to the father in accordance with what she was required to do under the court orders.

19. I have had the benefit of having read the parties’ accounts, including what Ms K Heron said in her affidavit, about difficulties concerning the visits.  Putting aside any judgment about various behaviours complained about on that occasion, because the court does not make findings about such matters in an interim hearing, and just looking at the situation objectively, it just has not worked.  It was probably always somewhat of a difficult expectation and a challenge to expect that somebody as closely related to the child’s mother as his maternal grandmother would be able to bring about a situation where there would not be difficulties.  It was probably too hard a task to ask of anybody in that position.  It simply has not worked.

20. That brings us to the point where that arrangement, as is submitted on behalf of the child’s father, is, in my view, no longer in the child’s interest.  I would have to agree with Mr Richards for the father, that whatever orders might be made about parenting arrangements in the future, the child’s best interests are not going to be served by a continuation of the presence of the maternal grandmother in any arrangement involving the father.

21. In my view, the case has now become very complicated.  One of the matters which was raised before Dr C was that the child had seen a Dr I, a paediatrician.  It would appear from my reading of the mother’s affidavit and of the various reports of Dr I, that the mother had a suspicion that the child was manifesting some features which might be consistent with a diagnosis of autism.  She has wondered for some time that if the child has a condition of being on the autism spectrum, then this might account for some of his very upsetting behaviours and what seems to be a very considerable level of distress, particularly at times of moving out of her care and into the care of his father.

22. Dr I has seen the child on a number of occasions.  One of the difficulties and frustrations about the case from the father’s point of view is that the father has not been involved in the process of the child being referred to Dr I.  But I understand that the father has now spoken with Dr I. 

23. Dr I has not hurried to any diagnosis that the child has autism, but he certainly suspected that there have been some difficulties.  

24. In Dr I’s report of 22 September 2015, he said he saw the child again with mother and grandmother on 17 September 2015.  He noted what he described as being a degree of distress and agitation during the appointment to the point where the mother took the child out of the room because the child was too unsettled.  He noted that the child had been seen by the early intervention team at E Town and that they had plans in place to see the child on a regular basis.  He said he reviewed the child’s developmental progress and noted that the child had been making quite pleasing developments in many ways as presenting at an age-appropriate level for fine and gross motor skills.  He said the child was showing an interest in things such as colours and stories.  He said, however, that his language skills have remained static and his capacity to communicate his needs are extremely limited.  He said he does make some eye contact, but is not responsive.  He said:

    … I suspect that a diagnosis of Autism Spectrum Disorder may be in order as his mother reports a number of behaviours that would support this, but further more intensive analysis is required with a period of observation.

25. Dr I notes that the child is scheduled for a speech pathology assessment in the near future, that he had agreed to review the child again in three months to monitor his progress and that he understood that the child would be seen by a paediatrician closer to home.

26. Although it has not been three months, as learned counsel for the father pointed out, yesterday Dr I prepared a further report.  It would be fair to say that the child’s mother knew that this matter was before the Court and, from her point of view and the child’s point of view, she thought it would be important to have something further from Dr I.  So I have had the opportunity of reading the report by Dr I dated 20 October 2015.  Dr I says, amongst other things, that he saw the child again with his mother and grandmother at short notice on 20 October 2015, that he was informed that this hearing had been listed today and that the father was requesting that the contact visits resume.  Dr I said that the mother indicated to him that the child has reduced the intensity and frequency of his biting behaviour and general level of distress, and that he has stopped clacking his teeth repeatedly.  Dr I then referred to the mother reporting what Dr I described as persisting behaviours that she thinks are symptomatic of autism.  He says that:

    While [the child] can demonstrate some good eye contact with his mother and perhaps maternal grandparents he is not engaging with other children or unfamiliar adults.  He finds it difficult to cope in any new situation and his behaviour at [the appointment on 20 October 2015] was no different to the previous visits.  It is possible that he was able to settle and play with pencils or the iPhone for a longer period of time but quickly became distressed and made to leave the room on several occasions.

27. Dr I goes on to say:

    It is my opinion that [the child] does demonstrate enough features of autism to justify this diagnosis.  However there is a peculiar intensity about his behaviour that may well reflect other tensions in his life.  Time remains an important component of the diagnostic process.

28. Dr I reports that the mother showed him an email sent from the father’s solicitor and Dr I said:

    The tone of the email highlights to me that there is a large gap between the parents and that providing good care for [the child] under the circumstances is being compromised.

29. Dr I refers to the mother’s position being that resuming time with the father would be deleterious because it would open old emotional wounds because of events which the child would associate with other visits with his father.  Dr I said:

    It would appear there has been no attempt to evaluate [the] father’s capacity or potential for parenting and clarify his sense of what is going on with his son.  Such an assessment would seem sensible although given [the child’s] current disposition would present challenges.  Such an evaluation could be instructive for the father as well as he could be made aware of the developmental concerns and the best ways of managing [the child].  Perhaps he could meet with members of the Early Intervention Team.

30. Dr I goes on to say:

    It is clear that [the mother] has formed the opinion that [the child] has been traumatised by contact visits with the father.  This has been reinforced by the opinion of [Mr J].

31. I pause to make the observation that Mr J is a behavioural scientist well-known to this Court and who has a practice, amongst other things, of offering therapy to families who are undergoing some level of dysfunction, particularly with a focus on parenting and the interests of their children. 

32. Dr I goes on to say:

    It is conceivable that the amount of distress experienced by [the mother] may itself cause, albeit unwittingly, a high level of distress for [the child].

33. Dr I then said that he is personally not of the opinion that the limited nature of the contact visits with the father explain the child’s behavioural and developmental difficulties. 

34. Mr Richards, counsel for the father pointed out that Dr I says:

    In principle a diagnosis of autism would not be a reason to stop contact visits as long as these visits were conducted in a consistent and safe environment and [is] whereby the interaction was seen to be at least emotionally neutral.  There will be many other situations where [the child] will be challenged with change and the unknown such as attending therapy or starting preschool or school or merely visiting a friend.  We know that these situations are distressing for many children but exaggerated more in children with autism.

35. Dr I goes on to urge the parents to set aside their differences so that a cohesive and cooperative approach can be put in place in order to act in the child’s best interests.  Of course, that urging comes in the middle of yet another gladiatorial battle between the parents using the legal system to endeavour to persuade the Court to one or other of the cases that they are putting before the Court.

36. The case for the child’s father is that this Court, on numerous occasions, has put orders in place with a view to providing appropriate opportunity, given the age of the child and the complex circumstances of this case, to develop a relationship with his dad.  Yet the mother has stopped presenting the child for such opportunity.

37. I have referred to Mr Richards’ submissions that Dr I said, in principle, that a diagnosis of autism would not be a reason to stop the time between the child and his father.  

38. Mr Richards also submitted that Dr C said that the child’s behaviour is consistent with that of a child of his age. 

39. There was a very strong submission that none of the experts who have been involved with this child have indicated in any of their reports that things have arrived at the stage where it would be in the interest of the child to do what the mother is asking the Court to do.  That is, to put in place a formal suspension of the orders until such time as Dr C can see the family again, be provided with the diagnosis of autism by Dr I, be provided with some observations by Mr J as the therapist and be provided with the parties’ accounts of the history of their endeavours since the orders were made in February to comply with the orders.

1. One of the difficulties in this matter, which I have to take some responsibility for, is that it has proceeded without the benefit of an Independent Child Lawyer (“ICL”).  Such an appointment would be appropriate in my view for the following reasons. 

2. Firstly, the fact that the matter has been before the Court now on many occasions in respect of interim parenting arrangements.  Secondly, it was appropriate for the learned Senior Registrar to put in place orders involving a qualified single expert in the form of Dr C.  Thirdly, notwithstanding all the various orders that have been put in place and notwithstanding that there has been therapy by Mr J with the mother and involving the child, we still struggle to make any progress in terms of successful arrangements and opportunity for the child to spend time with his father.  Fourthly, it is a complex case.  In all these circumstances, in my view, this must now be regarded by this Court as a case where it is in the child’s interests to appoint an ICL and I propose to include such an order.

3. In my view, this child would be assisted by the family returning to Dr C.  I understand he will be able to be available perhaps late in January 2016.  He can be provided with all the appropriate material for the purpose of preparing an updated report.

4. In all these complicated circumstances, the father comes before the Court and asks that, because the matter is so complex, the Court ought to amend the orders made on 9 February 2015 to really adopt what Dr C was recommending in his report.  That is, periods of time for the child to have opportunity to have his relationship with his father separated by a number of days.  The actual application which the father brings is his Amended Application in a Case filed on 16 September 2015 seeking that orders 2, 3 and 5 of the orders of 9 February 2015 be discharged and be replaced by orders the effect of which would be that the child would live with the mother, but, significantly, the child would spend time with his father in E Town, where the child and the mother live, in five weekly cycles as follows:

   -On Friday in week two from 1.00 pm till 2.00 pm;

   -Sunday in weeks three, four and five from 1.00 pm to 5.00 pm;

   -Wednesday each week from 1.00 pm to 5.00 pm; and

   -Some specific time on Christmas day. 

5. I hasten to add that I was provided with a minute of orders broadly to that effect, but that for what is described as the first cycle, instead of being that four-hourly period, in fact, it would be reduced to a one-hourly period for what is described as the first cycle.

6. There is another application to the effect that the mother forthwith cause photographs of the father to be displayed at the child’s residence in places where the child will regularly sight such photographs and shall maintain and display such photographs.  The mother agreed to the making of such an order.

7. On the other hand, the mother’s case is that such is the level of upset to the child that she regards his behaviour as having deteriorated since the orders were put in place to the point where she says she regarded it as being consistent with his interests in July to stop the time between the child and his father.  The child has not spent any time with his father since that time. 

8. Mr Richards submitted that because the child has not spent any time with his father since July, if the Court suspends the time, then it will be many months indeed before there is any prospect of any further time between the child and his father.

9. Regardless of whatever order it makes today, the Court is urged to expedite the substantive parenting proceedings.  That is something that is not opposed.  I would be confident, notwithstanding the fact that I would not have a submission by the ICL, that given the number of times that this matter has been back before the Court in an interlocutory sense, the best interests of this child and the best prospects of the parents being able to best parent this child would justify an expedited hearing.  Accordingly, I propose to make an order that the hearing be expedited by way of allocating a first day to the matter as soon as possible after we can obtain an updated report from Dr C.

10. In any event, turning to the mother’s case, the mother’s case is that she has endeavoured to encourage and support a relationship between the child and his father.  She has until July endeavoured to fulfil her obligations under the orders.

11. The father takes exception to that.  He says there have been numerous occasions when, in fact, the child was not available to him in accordance with the orders. 

12. Going back to February when the matter was before me, I recall that there was a contravention application which was stood over or adjourned and then ultimately withdrawn.  So clearly there were some complaints made by the father in that regard.  In any event, as I have said, the mother has said that the child’s behaviour included biting and Dr C made observations about the biting and the need for the mother to get some professional assistance to address the biting.  I had hoped, and no doubt the parents had hoped, that those behaviours would have improved.  In fact, they do not appear to have improved.  Perhaps so far as the biting is concerned, things have changed.  The mother says things have settled down since she has been withholding the child from spending time with his father.

13. In any event, her case is that things for the child have become even more complex, including the diagnosis of autism by Dr I, and that the Court would be taking an unacceptable risk in terms of the welfare of the child if he was to resume spending time with his father. 

14. One of the matters that I have not referred to is a report by Mr J, who has been seeing the mother and the child regularly in his practice over the past year.  In his report dated 21 September 2015 Mr J said that he had previously written a report, that his views in the report have not changed and that he was focusing on more recent events.  He said he last saw the child, mother and maternal grandmother on 18 September 2015.  He said in preparation for their visit on that occasion, he had read Dr I’s report dated 18 August 2015.  Unless I am mistaken, Dr I at that time had not arrived at any opinion that the child is on the autism spectrum.  But Dr I thought that there were some behaviours which may, in fact, ultimately lead to such a diagnosis.  Then Mr J said:

    I am aware, in the light of [[Dr I’s] report dated 18 August 2015] that there is a possibility that the child [sic] could be diagnosed as having some degree or form of autism.

15. Mr J notes that the child is developmentally delayed, particularly with respect to speech development, for which he is receiving speech therapy.  He says from an attachment perspective, his capacity to separate from his mother and explore his external world in her absence is also significantly delayed, and that seems to have some consistency with Dr C’s assessment about the complex attachment between the child and the mother in respect of which he said he thought that there needed to be some stabilisation.

16. Mr J says during the meeting he was able to observe the child’s behaviours and interactions with his two main attachment figures for around an hour as he needed their attention constantly, and therefore for the most part remained in Mr J’s office.  He says:

    My observations of [the child] indicated that he very quickly becomes emotionally dysregulated (upset/angry/frustrated facial expressions) and thus is frequently and constantly in need of (primarily) his mother’s (or his grandmother’s) presence and comfort.  The main triggers for his emotional dysregulation were:  potential separation from his mother; the presence of a stranger; and frustration when he couldn’t do things for himself.  When he was upset, he was readily comforted by his mother.  When he was close to his mother (standing near her or sitting on her lap) he was able to reveal a playful, gentle and engaging side of his nature – e.g. he was able to smile and make gestures at [Mr J] (i.e. the stranger).  In summary, it was very evident that in order to explore and meet new challenges, he needs his mother’s presence more than would normally be expected in a child of his age.  (It is noted that he was able, at times, to separate from his mother to go to his grandmother but still monitored his mother’s availability).

17. And then Mr J said:

    5.In summary, it is evident that [the child] has considerably more problems with emotional regulation than would normally be expected for a child of his age and that his behaviours are exceptionally demanding, challenging and stressful from a caregiver’s perspective. 

    6.In Attachment Theory terms, the [child’s] subjective experience when he is required to face challenges in his mother’s absence, would be one of a sense of abandonment, disconnection and isolation.

    7.Various suggestions have been made to [the mother] with respect to the etiology of [the child’s] difficulties with emotional regulation - including trauma effects, the possibility of [the child] being somewhere on the Autism Spectrum or his having some form of attachment disorder - or some combination of, or interaction between, all three.  Irrespective of causality, it is evident that [the child’s] issues are substantial and that the primary focus of all interventions and processes (legal and therapeutic) should now be on investigating their cause, seeking appropriate treatment and supporting his mother at this very challenging and stressful time.  This focus will be particularly important if [the child] were shown to be to some degree autistic in addition to an attachment disorder, as these would both require intense engagement with parent intensive early intervention programs in order that he maximise his development potential.  It is noted in this regard, that [the mother] has, as a precaution, engaged [the child] in an autism-related early intervention programme, and he is receiving speech therapy. 

18. Mr J continues in relation to a very important matter I have raised with the parents previously, and this needs to be the focal point for the parents given the particular complications that this child is confronting in life.  Mr J said:

    8.In order to give [the child] the best chance possible in life it is suggested that collaboration between the various professionals involved will be essential, together with …

    and this is the important part –

    … in the ideal world, a reflective, cooperative, non-adversarial co-parenting relationship; and a flexible approach to parenting arrangements that takes into account [the child’s] prevailing developmental and attachment needs.

19. The matters which the Court is to consider in parenting applications are set out in Part VII of the Family Law Act 1975 (Cth). I have referred previously to the relevant law. The primary considerations are the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. And in applying these considerations, the Court is to give greater weight to the second of those, rather than the first. That is, the need to protect the child from physical or psychological harm and the other matters that I have referred to.

20. Dr C, in his report, as he was requested to do, addressed the additional considerations.  In these proceedings, I am not going to each of those considerations.  I have referred in passing to the child’s attachment to each of his parents.  On the one hand Dr C referred to the primary, but rather anxious, insecure attachment to mother, and on the other hand the likely not very strong attachment with his father.  Dr C also referred to the need for there to be a period of stabilisation of that insecure attachment to his mother.

21. In my view, the major matters that the Court has to grapple with and balance in these interim proceedings, given the complex nature of this matter, are, firstly, if the Court does what the mother says, what does that mean in terms of the physical or psychological harm to the child or risk to the child in not having any opportunity for a relationship with his father for some period?  On the other hand if the Court does what the father asks the Court to do, that is to keep in place but modify the current arrangement, which the mother has not been adhering to, under which the child somehow would pass into the care of his father to have opportunities to address the first of the primary considerations, which is the benefit to the child of having a meaningful relationship with the father.

22. I have listened to the detailed submissions that have been made, and I have been taken to the various relevant parts of these experts’ reports.  My view about this case is that it is extremely complex.  One would like to think that there was a way to be able to provide the child with opportunity to develop his relationship with his father without involving him in some risk.  I am very concerned about the matters which Mr J referred to in his reports.  It is clear that things have become more complex now that there is a diagnosis that the child is on the autism spectrum. 

23. If the child does not spend time with his father for a period, that will delay opportunity for the child to be able to develop an appropriate attachment with his father, which Dr C had perhaps, somewhat optimistically, hoped would have been able to be in place by something like the present time.  But clearly it has not been.  On the other hand, if I go ahead and make those orders sought by the father clearly, to some extent, I would be taking a risk with the child in the absence of being able to have appropriate current professional advice about this.  Dr C, as I have said, assessed the child’s attachment to his father as not being very strong at this point. 

24. One would have preferred there to have been opportunity to get going with that.  If opportunity for the child to spend time with his father is delayed for a period, I would not accept that the level of risk to the child would be unacceptable in all the circumstances.  On the other hand, to plunge into what, in my opinion, is the unknown, despite urging by learned counsel for the father, in my view, in the absence of Dr C seeing all this current material, would indeed be taking what I would regard as an unacceptable risk.  So, in those circumstances, extremely reluctantly, I am going to have to put the suspension in place.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 21 October 2015.

Associate:     

Date:              8 December 2015