Perton and Hungerford
[2018] FamCA 583
•2 August 2018
FAMILY COURT OF AUSTRALIA
| PERTON & HUNGERFORD | [2018] FamCA 583 |
| FAMILY LAW – CHILDREN – Child related proceedings – Where the child has Autism Spectrum Disorder – Where the child has not spent time with the father since July 2015 – Where the mother seeks orders for the child to spend no time with the father – Orders made for the father to observe in the child’s ASD therapy – Order for the mother to have sole parental responsibility in relation to child’s health and ASD therapy – The right of the child to have a meaningful relationship with both parents – Acknowledged unacceptable risk in removing child from mother as primary security figure – Order made for the matter to be relisted in 2 years’ time when an update on child’s ASD therapy and the father’s involvement is before the Court. |
| Family Law Act 1975 (Cth) ss. 13A(1)(b), 43(1), 60B, 60CC, 60CA, 61DA, 63B, 65DAA, 69ZQ(1)(f), 69ZT Evidence Act 1995 (Cth) s 140(2), 177 Family Law Rules rr. 15.41, 15.52(3), 15.59 |
| B and B (1993) FLC 92-357 Hon. John Fogarty A.M., “Unacceptable Risk – A Return to Basics” (2006) Australian Journal of Family Law, 20 AJFL 249 |
| APPLICANT: | Mr Perton |
| RESPONDENT: | Ms Hungerford |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid New South Wales |
| FILE NUMBER: | SYC 4058 of 2014 |
| DATE DELIVERED: | 2 August 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 30 October 2017 - 3 November 2017, 1 March 2018 - 2 March 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Campton SC |
| SOLICITOR FOR THE APPLICANT: | Mills Oakley Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Schonell SC |
| SOLICITOR FOR THE RESPONDENT: | Hamish Cumming Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Longworth (30 October 2017 – 3 November 2017) Ms Cantrall (1 March 2018 – 2 March 2018) |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid New South Wales |
Orders
THE COURT ORDERS, PENDING FURTHER ORDER, THAT:
All previous parenting orders are discharged.
The child G, born … 2013 (“the child”) shall live with the mother.
Subject to these orders, the mother shall have sole parental responsibility in respect to matters concerning the child’s health, and therapy to address his diagnosis of Autism Spectrum Disorder (“ASD”).
The mother shall do all acts and things to cause the child to attend the following health professionals:
(a)Mr B, Child and Family Consultant;
(b)Mr C, Psychologist;
(c)Ms H, Speech Pathologist;
(d)Ms J, Speech Pathologist;
(e)Ms K, Early Childhood Support Worker;
(f)Mr L, Paediatrician;
(g)Ms M, Naturopath; and
(h)A General Practitioner in Sydney and/or N Town, as nominated by the mother;
as and when the child is required to attend upon the above professionals.
The mother is restrained from causing the child to attend upon any other health professional other than those referred to in order 4 herein, unless otherwise recommended by one or either of the professionals referred to in order 4. In the event that the child is to commence attending upon any other health professional or therapist, the mother shall, within 7 days of making an appointment with that practitioner, forward the contact details of that health professional, the date of the first appointment and the referral letter to the father and the Independent Children’s Lawyer.
The mother shall comply with all reasonable directions and recommendations made by the treating practitioners referred to in order 4 herein, including but not limited to following the recommendations of the child’s treating practitioner who specialises in the area of education to work towards the child attending a specialist school for autistic children and/or mainstream school.
The mother shall provide to the father, via email, each month, on an alternating basis:
(a)A photograph of the child and shall ensure that the photographs do not contain a copyright watermark or any other writing that obscures the photos; or
(b)A video recording of 1 to 2 minutes’ duration recording activities that the child may have been engaged in.
The father shall not post the photographs and video recordings of the child that he receives in any publication, including by way of any electronic publication on the Internet.
The father shall, within 21 days of these orders, provide to the mother, the name of an autism specialist with whom he will be engaging for the purpose of obtaining education regarding autism, and more specifically for assistance with recognising the child’s cues and communicating with the child.
The mother shall do all acts and things and sign all documents to facilitate videos of the child being recorded during his therapy/treatment sessions with one or either of the professionals set out in order 4 herein, such that no less than one video is recorded every six weeks for a duration of no less than 30 minutes. In the event that any of the services do not have video facilities, the father shall purchase video equipment and deliver such equipment to the office of the mother’s solicitor. The mother shall do all necessary things to ensure that this equipment is utilised to record the therapy/treatment sessions.
The mother, shall, within 5 days of a recording being created, pursuant to order 10 herein, forward, or cause the child’s treating practitioner whose service has been recorded to forward, the said recording to the professional elected by the father pursuant to order 9 herein.
The video recordings of therapy sessions that are made pursuant to order 10 herein shall not be used for any other purpose than facilitating the father obtaining advice from the professional he has nominated pursuant to order 9 herein. To avoid doubt, the video recordings shall not be admissible in any further proceedings between the parties.
Upon Mr C advising that the child is able to commence therapy with the father present or the child becoming capable of attending therapy for a period of no less than 60 minutes without the mother being present, whichever occurs sooner, then:
(a)Thereafter, the father shall be integrated in the most appropriate therapy, as directed by Mr C, and the father’s integration shall be at the direction of the therapist; and
(b)The Independent Children’s Lawyer has leave to provide to the therapist who is allocated to integrate the father into the child’s therapy, copies of the Single Expert Reports prepared by Dr F dated 30 April 2015, 9 March 2016 and 23 February 2018.
The mother and father shall, within 7 days, do all reasonable acts and things and sign all authorities to authorise the Independent Children’s Lawyer to communicate with and obtain information from the health professionals set out in order 4 herein, as well as any of the child’s future treating health professionals.
Leave be granted to the Independent Children’s Lawyer to provide to Mr B and Mr C copies of the Single Expert Reports prepared by Dr F dated 30 April 2015, 9 March 2016 and 23 February 2018.
These orders shall constitute authority for the father to:
(a)Communicate with the child’s treating health professionals referred to order 4 herein, to discuss the child’s attendance upon their service;
(b)Obtain reports, either at his own expense or those prepared ordinarily in the course of treatment, as to the child’s treatment and prognosis, including advice as to when the child is to commence therapy:
(i)Away from the mother’s residence; and
(ii)Without the mother being present.
In the event that any of the child’s health professionals require written authority to provide reports to the father pursuant to order 16 herein, the mother shall do all acts and things and sign any documents required to provide that authority, within 7 days of any request by the father.
The mother shall provide to the father and the Independent Children’s Lawyer any reports that she receives from the health professionals listed in order 4 herein, no later than 14 days after she receives those reports.
The mother shall attend upon Dr O, Psychologist, at such frequency as recommended by Dr O and shall comply with all reasonable recommendations made by Dr O and/or her General Practitioner in relation to her mental health, including taking prescribed medication.
Leave be granted to the Independent Children’s Lawyer to provide to Dr O, copies of the Single Expert Reports prepared by Dr F dated 30 April 2015, 9 March 2016 and 23 February 2018.
The Independent Children’s Lawyer be granted liberty to relist the matter, upon 7 days’ written notice to the parties and the Court.
Each party be and hereby is restrained from:
(a)Using any form of physical discipline on the child;
(b)Denigrating or making any critical or derogatory remarks about the other party to, or in the presence or hearing of, the child; and
(c)Discussing these proceedings or any of the issues raised in these proceedings in the presence or hearing of the child.
The mother be and hereby is restrained from using or attempting to use any other name than G Hungerford Perton for the child, either formally or informally for any purpose whatsoever and is restrained from taking any steps to change the child’s name from G Hungerford Perton.
The father shall be at liberty to send letters, cards and gifts to the child at the address provided by the mother, and the mother shall ensure that all such items are promptly passed on to the child.
The mother shall notify the father in writing of major decisions in relation to the child’s health and medical treatment 28 days prior to any major decision being made.
The mother shall notify the father as soon as practicable in the event that the child suffers a serious illness or injury, or is hospitalised.
This matter is listed for further direction on 3 August 2020 at 10:00am.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Perton & Hungerford has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 4058 of 2014
| Mr Perton |
Applicant
And
| Ms Hungerford |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns parenting arrangements for the child G, born in 2013 (“the child”). The child has been diagnosed with Autism Spectrum Disorder (“ASD”) and, as a result of his condition, experiences difficulty in being separated from the mother, who is his primary carer.
The father seeks orders for the child to spend time with him on a gradually increasing basis. The mother opposes orders being made to facilitate the child spending time with the father because she believes it will be detrimental to the child and, further, that it would cause her to suffer stress and anxiety, which would adversely impact upon her parenting capacity.
In the context of the child’s disability, the Single Expert, Dr F, has recommended that, rather than make final orders, arrangements should be put in place for the father to familiarise himself with the child’s condition and the nature of the therapy he is receiving. Dr F has recommended that the child be reintroduced to his father in a staged process, consistent with advice of the child’s treating professionals. I have made orders consistent with that approach.
Background
The father was born in 1981.
The mother was born in 1983.
In April 2012, the father moved to P Town NSW, in order to take up an employment opportunity.
In September 2012, the parties commenced a relationship.
In December 2012, the mother fell pregnant with the child, although the pregnancy was not confirmed until January 2013.
In or around July 2013, the mother commenced living in P Town with the father on a full-time basis.
The mother contends that the parties experienced difficulties from early on in their relationship. Reasons for this included the fact that the mother felt isolated in P Town and continued to travel to Sydney to undertake part-time work for three days per week and also to visit her mother and friends. The mother perceived the father as resenting her travelling to Sydney and is of the view that this caused their relationship to deteriorate and result in the parties becoming more argumentative.
In 2013, the child was born.
On 27 December 2013, the mother contends that the parties separated. The father contends that separation occurred approximately two weeks later, on 12 January 2014. The difference in the parties’ recollection as to the date of their separation does not impact upon the orders I make in these proceedings.
On 18 January 2014, the mother left the parties’ rented premises in P Town and moved to N Town NSW.
On 1 February 2014, the father sent an email to the mother indicating that he opposed any “permanent relocation without his knowledge or consent”.
Between February and June 2014, the father travelled from P Town to Sydney to spend time with the child. To facilitate that contact, the mother brought the child from N Town, where she was living with the child, to Sydney.
On 2 July 2014, the father commenced these proceedings. The father acknowledges that this was done without prior notice to the mother.
On 30 July 2014, orders were made, by consent, that the child live with the mother and spend time on alternate weekends with the father in N Town and in Sydney. That time was to occur during the day for no more than three hours at a time and to be supervised by family members.
In August 2014, the father commenced spending time with the child in accordance with the above consent orders. The first set of visits took place in N Town over three consecutive days, being 16, 17 and 18 August 2014. During the third visit, on 18 August 2014, the child became distressed in his father’s care and it was necessary for the father to contact the mother. The mother subsequently reported to the father that the child was experiencing difficulties in respect to being separated from her and had engaged in conduct such as pulling his hair and biting her. The father acknowledges witnessing the child biting the mother on several occasions.
On 23 October 2014, following a request by the mother, the parties attended upon Mr B for family therapy. Following his consultation with the parties, Mr B expressed the view that the child should spend time with the father based on the theory of the “Circle of Security”. That theory involves the child having a stable base upon which he can develop tolerance to new experiences and people. During the hearing, the father acknowledged that, at the time of the consultation with Mr B, the mother was the child’s stable base. The father further acknowledged that, for that reason, Mr B recommended that the mother be present during those occasions when the child was spending time with the father.
In January 2015, the father relocated from P Town to Q Town where he commenced contract work. The father remained in that employment, for a period of approximately 18 months, until mid-2016. Since that time, the father’s contract work has involved him travelling to various locations around Australia, including Western Australia, Tasmania and Victoria, as well as R Town, the South Coast and S Town in New South Wales. The father gave evidence that if orders were made for the child to spend time with him, he would be able to live at the home of his parents in T Town NSW and not work for a certain amount of time if that were necessary. He could also gain employment “closer to [the child’s] vicinity” in the Region V or U Town.
On 9 February 2015, Johnston J made interim orders for the child to spend time with the father for up to three hours during the day in Q Town and N Town, in the presence of the maternal grandmother. In the event of the maternal grandmother being unavailable, the mother was to be in attendance. The child spent time with the father in accordance with those orders from 21 February 2015 until approximately July 2015. Ultimately, the father spent time with the child, pursuant to Court orders, between July 2014 and July 2015 for approximately 20 visits. At the commencement of those visits, the child was 11 months old and in July 2015, the child was almost 2 years old. The father has not seen the child since that time.
On 22 July 2015, the child was diagnosed by Dr W, Paediatrician, as having ASD.
On 21 October 2015, Johnston J ordered that, pending further order, time between the father and the child be suspended. At the same Court event, the Independent Children’s Lawyer (“ICL”) was appointed.
On 15 March 2016, the matter came before me. Certain orders were made by consent and the matter was adjourned for the purpose of assessing the child’s therapeutic progression away from the mother’s residence and whether it would be possible for the father to participate in that therapy.
On 21 February 2017, the matter also came before me. The parties were ordered to attend family therapy at D Group and the matter was set down for hearing.
Competing applications
The father’s application
The Minute of Order proposed by the father, at the commencement of these proceedings was as follows:
1. That the Father have sole parental responsibility in relation to the health and education of the child.
2. That otherwise as provided for in Order 1, the parties have equal shared parental responsibility.
3. That the child live with the Father.
4. That the child not spend any time with the Mother for a period of six (6) months with orders providing for the reintroduction to be set out by the Father following the evidence of [Dr F].
In the alternative, and without concession:
1. That these proceedings be adjourned part heard for a period of twelve (12) months with further dates to be allocated before Justice McClelland.
That the following orders be made pending further order:
2. That the parties have equal shared parental responsibility for the child.
3. That the child live with the Mother.
4. That for the 3 months prior to commencement of Order 5 below, the Mother is to do all acts and things necessary to ensure that the child attend upon X Group twice each week to allow [the child] to engage in speech and occupational therapy sessions.
5. That the child spend time with the Father at the X Group Centre, on a gradual increasing basis as follows:
5.1 For half (1/2) an hour, two times each week for a period of one month;
5.2 For one (1) hour, two times each week for a period of a further one month
5.3 For two (2) hours, two times each week for a period of a further one month;
5.4 For three (3) hours two times each week for a period of a further two months;
5.5 For four (4) hours two times each week for a period of a further two months;
5.6 For six (6) hours two times each week for a period of a further two months;
5.7 For eight (8) hours twice each week for a period of a further three months.
6. That orders providing the specific time and dates for the time provided for at 5 above be set out by the Father following the evidence of [Dr F].
7. That for the first three months of the child spending time with the Father pursuant to the above orders, changeover occur at [X Group] with the mother arriving five minutes early and leaving before the father arrives.
8. That orders for changeover times pursuant to order 5 following the three month period above be set out by the father after the conclusion of the evidence of [Dr F].
9. That in relation to Order 5, the time the Father spends with the child shall not occur in the presence of the Mother or the maternal grandmother.
10. In the event [X Group] is unable or unwilling or cannot otherwise accommodate the child’s time with the father pursuant to Order 5, the child shall spend time with the father supervised by a person involved in the child’s treatment with the Mother to arrange such supervisor.
11. That the Mother be restrained by way of injunction from allowing the child to attend upon or be treated in any way by [Mr C].
12. That the father nominate three proposed autism focused medical practitioners to undertake the role of the child’s central coordinator within 14 days of the date of these Orders and the mother is to elect one of those proposed medical practitioners within a further 14 days.
13. Following the election by the mother pursuant to Order 10, that medical practitioner elected be permitted access and be provided with any information, document, file, correspondence or any other thing as requested by that doctor from any of the child’s treating therapist.
14. That all treating professionals be permitted to communicate freely with the Father regarding any aspect of the child’s treatment and treatment plan and progress and any other relevant factor to the child.
15. That any medical professionals or treatment providers for the child, current and future, be provided with a copy of the judgment from these proceedings.
16. That the mother provide a current photograph of the child each fortnight with such photograph to be without copyright stamping or markings and time-stamped by the camera and be sent direct to the father by the mother.
17. That each alternate fortnight, the mother is to provide current video footage of the child, not less than 15 seconds, engaging in play or therapy with such video footage is to be free of copyright and be sent direct to the father by the mother.
18. That each month the mother is to ensure that a photograph that the father is to provide to [X Group] forms part of the child’s treatment.
19. That the Mother be restrained form referring to or in any way changing the child’s name as otherwise recorded on the child’s birth certificate.
The mother’s application
The Minute of Orders proposed by the mother was as follows:
1. That all previous parenting Orders in respect of [the child] be dismissed.
2. That the Mother have sole parental responsibility for the child.
3. That [the child] shall live with the Mother.
4. That [the child] shall spend no time with the Father.
5. That the Mother provide the Father with a photograph of [the child] each month.
6. That the Mother shall do all things and give all instructions as are necessary to authorise and direct all and each of [the child]’s treating health professionals to release such reports or information the Father requests and produce information as to [the child]’s treatment and progress in writing.
7. That in order to implement Order 6 above the Mother sign the authority attached to these Orders for each of [the child]’s treating Health Professionals.
8. That the Mother be authorised to apply to the Registry of Births, Deaths and Marriages that the child previously registered as G Hungerford Perton be now registered as [G Perton Hungerford] and henceforth be known by that name.
9. That a sealed copy of the Orders served upon the Registry of Births, Deaths and Marriages is requested to give effect to any such Application as set out in Order 8 above.
The Independent Children’s Lawyer’s proposed orders
The orders proposed by the ICL are set out in Exhibit “ICL-9”, as follows:
PRIMARY POSITION – INTERIM ORDERS
IT IS ORDERED, PENDING FURTHER ORDER THAT:
1. All previous parenting orders are discharged.
2. The child shall live with the mother.
3. That the mother shall do all acts and things to cause [the child] to attend upon the following health professionals:
3.1.1 [Mr B], Child and Family Consultant;
3.1.2 [Mr C], Psychologist;
3.1 .3 [Ms H], Speech Pathologist;
3.1.4 [Ms J], Speech Pathologist;
3.1.5 [Ms K], Early Childhood Support Worker;
3.1.6 [Dr L], Paediatrician;
3.1.7 [Ms M], Naturopath; and
3.1 .8 A General Practitioner in Sydney and/or [N Town], as nominated by the mother
as and when [the child] is required to attend upon the above professionals.
4. The mother is restrained from causing [the child] to attend upon any other health professional, other than those referred to in Order 3 unless otherwise recommended by one or either of the professionals referred to in Order 3 above. In the event [the child] is to commence upon any other health professional or therapist, the mother shall, within 7 days of making an appointment with that practitioner, forward the contact details, date of the first appointment and referral letter to the father and the Independent Children's Lawyer.
5. The mother shall comply with all reasonable directions and recommendations made by one or either of the treating practitioner's referred to in order 3 above, including but not limited to following the recommendations of [the child]’s treating practitioner who specialises in the area of education to work towards [the child] attending a specialist school for autistic children and/or mainstream school.
6. The mother shall provide the father, via email, a photograph of [the child] or alternatively a video of 1 minute each two weeks and shall ensure that the photograph/s do not contain a copyright watermark or any other writing that obscures the photos.
7. The father shall, within 21 days of these Orders, provide to the mother, the name of an autism specialist in which he will be engaging for the purpose of obtaining education regarding autism, assisting the father to recognise [the child]’s cues and communicate with [the child].
8. The mother shall do all acts and things and sign all documents to:
8.1 Facilitating videos of [the child] being recorded immediately prior to and during therapy/treatment sessions with one or either of the professionals set out in Order 3.1. 1 to 3.1 .5, such that no less than one video is recorded every six weeks for a duration of no less than 30 minutes. In the event any of the services do not have video facilities, the father shall purchase video equipment and deliver such equipment to the office of the mother’s solicitor. The mother shall do all things to utilise this equipment in the therapy sessions to record the sessions;
8.2 The mother, shall, within 5 days of the recording being created, cause [the child]’s professional whose service has recorded the session/s, to forward said recording to the professional elected by the father at Order 4.
8.3 In the event that either [Mr C] advises that [the child] is able to commence therapies with the father present, or when [the child] is able/capable of attending therapy for a period of no less than 60 minutes without the mother being present (whichever occurs sooner), that:
8.3.1 [The child] shall continue to attend therapy with the therapists for a period of six months; and
8.3.2 Thereafter, the father shall be integrated into the most appropriate therapy t as directed by [Mr C] (but not including the therapy provided [Mr B]) and the father's integration shall be at the direction of the therapist.
8.3.3 The Independent Children's Lawyer has leave to provide to the therapist who is allocated to integrate the father in [the child]’s therapy, copies of the Single Expert Reports prepared by [Dr F] dated 30 April 2015, 9 March 216 and 23 February 2018.
9. Within 7 days of the date of these Orders, the mother and father shall do all acts and things and sign authorities to authorise the Independent Children's Lawyer to communicate with and obtain information from the practitioners set out in Order 3 and any of [the child]’s future treating practitioners.
10. Leave be granted to the Independent Children's Lawyer to provide to [Mr B] and [Mr C], copies of the Single Expert Reports prepared by [Dr F] dated 30 April 2015, 9 March 216 and 23 February 2018.
11. These Orders shall constitute authority to the father to:
11.1 Communicate with [the child]’s treating health practitioners and therapists in Order 3, to discuss [the child]’s attendance upon their service;
11.2 Provide reports at the father's expense, save reports prepared ordinarily in the course of treatment to the father as to [the child]’s treatment and prognosis including advice as to when [the child] is to commence therapy:
11.2.1 Away from the mother's residence; and
11.2.2 At the therapist/mental health practitioners organisation without the mother being present.
11.3 In the event any of the health practitioners or therapists require written authority the mother shall do all acts and things to sign any documents required within 7 days of any request by the father.
11.4 The mother shall continue to ensure that the reports are provided to the father at intervals of no less than every three months. The mother shall also cause these reports be forwarded to the Independent Children's Lawyer.
12. The mother shall attend upon [Dr O] at such frequency as recommended by the psychologist and shall comply with all reasonable recommendations made by the psychologist and/or her GP in relation to her mental health, including taking prescribed medication as recommended.
13. Leave be granted to the Independent Children's Lawyer to provide to [Dr O], copies of [Dr F] Single Expert Reports dated 30 April 2015, 9 March 216 [sic] and 23 February 2018.
14. The Independent Children's Lawyer be granted liberty to relist the matter.
15. That each parent be and hereby is restrained from:
15.1 Using any form of physical discipline on [the child];
15.2 Denigrating or making any critical or derogatory remarks about the other parent to, or in the presence or hearing of, any [the child], and
15.3 Discussing these proceedings or any of the issues raised in these proceedings in the presence or hearing of [the child].
IN THE ALTERNATIVE - FINAL ORDERS
IT IS ORDERED THAT:
1. All previous parenting orders are discharged.
2. That the mother shall have sole parental responsibility for the child.
3. [The child] shall live with the mother.
4. That the Mother be restrained from using or attempting to use any other name than [G Hungerford Perton] for the child, either formally or informally for any purpose whatsoever and is restrained from taking any steps to change [the child]’s name from [G Hungerford Perton].
5. That the mother shall do all acts and things to cause [the child] to attend upon the following health professionals:
5.1.1 [Mr B], Child and Family Consultant;
5.1.2 [Mr C], Psychologist;
5.1.3 [Ms H], Speech Pathologist;
5.1.5 [Ms K], Early Childhood Support Worker;
5.1.6 [Dr L], Paediatrician;
5.1.7 [Ms M], Naturopath; and
5.1.8 A General Practitioner in Sydney and/or [N Town], as nominated by the mother;
as and when [the child] is required to attend upon the above professionals.
6. The mother shall do all acts and things and sign all documents to:
6.1 Within 7 days of the date of these Orders (if the mother has not already done so) authorise the father to communicate with and obtain information from the practitioners set out in Order 5; and
6.2 In the event [the child] is to commence upon any other health professional and/or therapist, forward via email to the father, the contact details and date of the first appointment, within 7 days of any engagement with that practitioner and authorise the father to communicate with and obtain information from [the child]’s future treating practitioners.
7. The mother shall comply with all reasonable directions and recommendations made by one or either of the professionals referred to in order 5 or any future treating practitioner, including but not limited to following the recommendations of [the child]’s treating practitioner who specialises in the area of education to work towards [the child] attending a specialist school for autistic children and/or mainstream school.
8. The mother shall provide to the father, via email, a photograph of [the child] monthly and shall ensure that the photograph/s do not contain a copyright watermark or any other writing that obscures the photos.
9. Leave be granted to the Independent Children's Lawyer to provide to [Mr B] and [Mr C], copies of the Single Expert Reports prepared by [Dr F] dated 30 April 2015, 9 March 216 and 23 February 2018.
10. These Orders shall constitute authority to the father to:
10.1 Obtain reports from [the child]’s treating practitioners at the father's expense, save reports prepared ordinarily in the course of treatment to the father as to [the child]’s treatment and prognosis including advice as to when [the child] is to commence therapy:
10.1.1 Away from the mother's residence; and
10.1.2 At the therapist/mental health practitioners organisation without the mother being present.
10.2 In the event any of the health practitioners or therapists require written authority the mother shall do all acts and things to sign any documents required within 7 days of any request by the father.
10.3 The mother shall continue to ensure that the reports are provided to the father at intervals of no less than every three months.
11. The mother shall attend upon [Dr O] at such frequency as recommended by the psychologist and shall comply with all reasonable recommendations made by the psychologist and/or her GP in relation to her mental health, including taking prescribed medication as recommended.
12. Leave be granted to the Independent Children's Lawyer to provide to [Dr O], copies of [Dr F] Single Expert Reports dated 30 April 2015, 9 March 216 and 23 February 2018.
13. That the mother is restrained from and shall ensure no other third party:
13.1 Denigrates or makes any critical or derogatory remarks about the father to, or in the presence or hearing of, any of [the child], and
13.2 Discussed these proceedings or any of the issues raised in these proceedings with, or in the presence or hearing of [the child].
14. The parents shall, within 7 days, provide to the other parent, their current residential address, contact telephone number(s) and email address, and shall notify the other parent of any change in these details within 48 hours of such change.
15. The mother shall notify the father in writing of major decisions in relation to [the child]’s education, health and medical treatment 28 days prior to any major decision being made.
16. The mother shall notify the father as soon as practicable in the event that [the child] suffers a serious illness or injury, or is hospitalised.
17. The father shall be at liberty to send letters, cards and gifts to [the child] at the address provided by the mother, and the mother shall ensure that all such items are promptly passed on to [the child].
18. The mother shall forthwith provide a sealed copy of these Orders to [the child]’s medical practitioners and any school that [the child] may attend in the future.
19. That the father is at liberty to:
19.1 Provide a sealed copy of these Orders to any school/s attended by [the child] in the future;
19.2 Have discussions with staff at [the child's] school(s) and obtain information in relation to the [the child’s] progress, including a copy of his school reports;
19.3 Obtain a copy of any school newsletter that is generally circulated to parents;
19.4 Arrange separate parent-teacher interviews; and
19.5 Obtain school photograph order forms.
Evidence and witnesses
The mother relied upon the following documents:
a)Her Affidavit filed on 21 September 2017;
b)Her Affidavit filed on 30 October 2017;
c)Affidavit of Ms Y Hungerford filed on 21 September 2017;
d)Affidavit of Dr O filed on 21 September 2017;
e)Affidavit of Mr Z filed on 21 September 2017;
f)Affidavit of Mr B filed on 21 September 2017; and
g)Affidavit of Mr C filed on 21 September 2017.
The father relied upon the following documents:
a)His Affidavit filed on 15 September 2017;
b)Affidavit of Mr AA Perton filed on 15 September 2017; and
c)Affidavit of Mr BB Perton filed on 15 September 2017.
The ICL relied upon the following documents:
a)Report of Dr F dated 20 April 2015;
b)Report of Dr F dated 9 March 2016 (but the document is incorrectly dated 9 March 2015);
c)Report of Dr F dated 22 February 2018; and
d)Child Responsive Memorandum prepared by Family Consultant, Ms CC (“Ms CC”) dated 7 November 2015.
Admissibility of treating therapists’ reports
At the initial stages of the hearing, the parties spent some time debating the admissibility of reports provided by Mr B and Mr C (“Mr C”), the child’s therapists. Senior Counsel for the father objected to sections of those reports being admitted on the basis that they went beyond the ambit of Rule 15.41 of the Family Law Rules 2004 (“the Family Law Rules”).
Senior Counsel for the mother contended that the reports were admissible pursuant to section 69ZT of the Family Law Act 1975 (“the Act”), which relevantly provides:
69ZT Rules of evidence not to apply unless court decides
(1) These provisions of the Evidence Act 1995 do not apply to child‑related proceedings:
(a) Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re‑examination and cross‑examination), other than sections 26, 30, 36 and 41;
Note: Section 26 is about the court’s control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions.
(b) Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);
(c) Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).
Senior Counsel for the mother further argued that the Family Law Rules are invalid to the extent to which they restrict the admissibility of opinions expressed by treating therapists. In that respect, Part 15.5 of the Family Law Rules deals with the admissibility of expert evidence. Broadly, those rules relate to the appointment of experts and set out the duties of experts. Rule 15.59 relevantly provides:
Expert witness’s duty to the court
(1) An expert witness has a duty to help the court with matters that are within the expert witness’s knowledge and capability.
(2) The expert witness’s duty to the court prevails over the obligation of the expert witness to the person instructing, or paying the fees and expenses of, the expert witness.
(3) The expert witness has a duty to:
(a) give an objective and unbiased opinion that is also independent and impartial on matters that are within the expert witness’s knowledge and capability;
(b) conduct the expert witness’s functions in a timely way;
(c) avoid acting on an instruction or request to withhold or avoid agreement when attending a conference of experts;
(d) consider all material facts, including those that may detract from the expert witness’s opinion;
(e) tell the court:
(i) if a particular question or issue falls outside the expert witness’s expertise; and
(ii) if the expert witness believes that the report prepared by the expert witness:
(A) is based on incomplete research or inaccurate or incomplete information; or
(B) is incomplete or may be inaccurate, for any reason …
The Family Law Rules provide an exemption from the requirements of Part 15 in respect to reports from treating therapists in the circumstances listed in Rule 15.41, which relevantly provides:
15.41 Application of Part 15.5
(1) This Part (other than rule 15.55) does not apply to any of the following:
(a) evidence from a medical practitioner or other person who has provided, or is providing, treatment for a party or child if the evidence relates only to any or all of the following:
(i) the results of an examination, investigation or observation made;
(ii) a description of any treatment carried out or recommended;
(iii) expressions of opinion limited to the reasons for carrying out or recommending treatment and the consequences of the treatment, including a prognosis;
(b) evidence from an expert who has been retained for a purpose other than the giving of advice or evidence, or the preparation of a report for a case or anticipated case, being evidence:
(i) about that expert’s involvement with a party, child or subject matter of a case; and
(ii) describing the reasons for the expert’s involvement and the results of that involvement;
(c) evidence from an expert who has been associated, involved or had contact with a party, child or subject matter of a case for a purpose other than the giving of advice or evidence, or the preparation of a report for a case or anticipated case, being evidence about that expert’s association, involvement or contact with that party, child or subject matter;
(d) evidence from family consultant employed by a Family Court (including evidence from a person appointed under regulation 8 of the Regulations).
Example: An example of evidence excluded from the requirements of this Part (other than rule 15.55) is evidence from a treating doctor or a teacher in relation to the doctor’s or teacher’s involvement with a party or child.
In Northern Territory of Australia v GPAO (1999) 196 CLR 553, Gleeson CJ and Gummow J said at [52]:
A related issue may arise where statute confers upon the executive branch of government the authority to make rules and regulations, generally described as "delegated legislation". The ambit of the authority so conferred is spelled out by the statute, often in terms that the delegated legislation must not be "inconsistent" with the provisions of the statute itself. An example is the expression of the regulation-making power conferred by s 125 of the Family Law Act itself. The regulations so made must not be "inconsistent" with the Family Law Act. In this sphere, any question of "inconsistency" does not arise as a consequence of the exercise of law-making power enjoyed by two legislative bodies. There is but one legislature involved and the failure of delegated legislation to operate fully in its terms is analysed in terms of ultra vires and of action in excess of the authority delegated by the legislature. Section 46 of the Interpretation Act makes provision for the "reading down" of a delegated legislation to preserve its operation to the extent to which it is not in excess of power. [References omitted].
In my opinion, the Family Law Rules relating to the admissibility of expert evidence are not inconsistent with s 69ZT of the Act. It is the case that s 69ZT(1)(c) removes a barrier to the admissibility of opinion evidence, but the section does not impede the ability of the Court to make orders for the orderly, fair and cost-effective conduct of proceedings, including in respect to the admissibility of expert evidence. In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303 at [51], the High Court said:
In Aon Risk Services Australia Ltd v Australian National University, it was pointed out that case management is an accepted aspect of the system of civil justice administered by the courts in Australia. It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants. [References omitted].
The Family Law Rules in respect to the admissibility of evidence from expert witnesses are intended to achieve proportionality “between the importance and complexity of a dispute, the procedural means employed, and costs incurred, in its resolution”: NSW Law Reform Commission, Expert witnesses, Report No 109 (2005) 4.
In the 2003 Explanatory Statement (No 375) issued in relation to the Family Law Rules, which introduced provisions for the appointment of Single Experts in the area of family law, it was noted:
One of the strategies employed in these new rules to overcome the identified problems of partisanship, lack of clarity of evidence and excessive cost is to encourage parties to consider at an early stage whether expert evidence is necessary and if so whether that evidence can be given by a single expert witness.
…
Experience in the UK is that since the introduction of similar rules in the Uniform Civil Procedure Rules 1999, parties, in most cases, instruct a single expert witness and that:
* single experts are more impartial;
* single experts see their duty as being to the Court;
* the process saves time and money;
* single experts assist in levelling the playing field between parties with unequal resources;
* single experts increase the prospect of settlement.
The Family Law Rules to which I have earlier referred are consistent with that objective and insofar as they are facilitative of the admissibility of expert evidence in an orderly and cost effective manner, are not inconsistent with the provisions of s 69ZT of the Act.
The fact that the Family Law Rules make provision for the appointment of a Single Expert, for reasons explained in the Explanatory Statement, does not preclude a party from applying for permission to adduce evidence from an expert witness who is other than a Single Expert. Rule 15.52(3) provides that when considering whether to permit a party to tender a report or adduce evidence from an expert witness, who is other than a Single Expert, the Court may take into account the following:
(a) the purpose of this Part (see rule 15.42);
(b) the impact of the appointment of an expert witness on the costs of the case;
(c) the likelihood of the appointment expediting or delaying the case;
(d) the complexity of the issues in the case;
(e) whether the evidence should be given by a single expert witness rather than an expert witness appointed by one party only; and
(f) whether the expert witness has specialised knowledge, based on the person’s training, study or experience:
(i) relevant to the issue on which evidence is to be given; and
(ii) appropriate to the value, complexity and importance of the case.
Rule 15.42, which is referred to Rule 15.52(3), relevantly provides:
The purpose of this Part is;
(a) to ensure that parties obtain expert evidence only in relation to a significant issue in dispute;
(b) to restrict expert evidence to that which is necessary to resolve or determine a case;
(c) to ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue by a single expert witness;
(d) to avoid unnecessary costs arising from the appointment of more than one expert witness; and
(e) to enable a party to apply for permission to tender a report or adduce evidence from an expert witness appointed by that party, if necessary in the interests of justice.
That purpose is entirely consistent with sound case management principles, which are not inconsistent with s 69ZT of the Act.
It would have been possible for the mother, through her legal representatives, to have made an application for permission to rely upon the totality of the reports of the treating professionals, including the opinions they expressed regarding matters beyond the purview of Rule 15.41. No such application was made and therefore, the Court would not be justified in departing from the operation of the Family Law Rules, in order to do so.
Accordingly, during the course of the proceedings, in the case of the reports provided by Mr B and Mr C, I took the course of redacting those parts that went beyond the provisions of Rule 15.41. Those parts which were so redacted are set out at pages 86 to 97 of the transcript of the proceedings.
Having set out the reasons for redacting parts of the reports of Mr B and Mr C, I note that the basis for the father’s objection to the contents of those reports substantially evaporated during the course of the proceedings. In that respect, Mr C’s overall opinion was that it was necessary for the child to make significant progress before he was able to be reintroduced to the father and yet more progress if he is to spend independent time with the father. Mr B was of a similar opinion.
The Affidavit of Dr O, the mother’s treating Psychologist, was served on the solicitors for the father on 20 October 2017. Annexed to her Affidavit was her report dated 19 September 2017. Senior Counsel for the father argued that service of that Affidavit 10 days prior to the hearing was inconsistent with the principles of procedural fairness. In that respect, I note that s 177 of the Evidence Act 1995 (Cth) (“the Evidence Act”) provides that evidence of an expert’s opinion may be adduced by tendering a certificate setting out the opinion of that expert. Section 177(3) of the Evidence Act provides that, unless otherwise ordered, the service of such a certificate must be effected not later than 21 days before the hearing.
There was, in my view, no reasonable basis for deferring the service of Dr O’s report for a period of approximately 28 days after it was received by the solicitor for the mother. On that basis, I have ruled that the report of Dr O is not admitted, other than to the extent to which it is agreed by the father.
While the totality of the report of Dr O has not been admitted into evidence, I am satisfied that the Court has been sufficiently appraised of the mother’s mental health and the extent to which it impacts upon her parenting capacity.
The law - concepts and principles
The relevant statutory provisions applicable to proceedings in relation to children are set out in Part VII of the Act. Section 60B sets out the objects and principles of Part VII. These are to ensure that the best interests of children are met by:
(a) 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
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
More generally, the Act makes clear that in exercising its jurisdiction, the Court has a responsibility to “protect the rights of children and to promote their welfare” (s 43(1)(c)), and to protect them from family violence (s 43(1)(ca)).
The presumption of equal shared parental responsibility
Section 61DA(1) of the Act provides that the Court must apply a presumption that “it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child”. Section 61DA(4) provides that the presumption “may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child”.
In this matter, both parties initially sought orders for sole parental responsibility. However, the father modified his position on the final day of the hearing to seek that the parties have equal shared parental responsibility, apart from matters concerning the health and education of the child, where he would have sole responsibility.
It was not disputed that the parties’ relationship is highly conflictual. They currently do not communicate with each other on any level other than through their legal representatives. The history of these proceedings has been marked by significant animosity and mutual distrust.
As early as November 2014, the Child Responsive Memorandum stated:
[The father] described the parenting relationship has been quite damaged at present as he said that [the mother] does not appear to trust him, he also has some difficulty believing things she has said to him, they do not communicate with each other and have very different views about parenting.
It was further recorded in the Child Responsive Memorandum that:
[The mother] also described the parenting relationship as very strange. She believes that [the father] is blaming of her. She believes [the father] puts his needs above [the child]’s and she agreed that there is no communication between them. She and [the father] did not trust each other they have very different parenting styles.
In his third report, Dr F stated that: “the building blocks for shared responsibility for [the child] are almost absent”. Dr F expressed the view that:
Bearing in mind what is likely to be a continuing very high level of distrust between the parents, it is not my view that parenting responsibility should be shared by the parents, but certainly [the father] should be informed of ongoing health issues, changes of therapists et cetera.
Clinical notes provided by Mr B dated 24 May 2017 express the opinion that it would not be possible for anyone other than the mother to make the complex judgements involved in the child’s treatment, given that she is the only one who can read his cues.
In circumstances where the child has a significant disability and requires extensive, ongoing treatment and there is a complete absence of effective communication between the parties, it is my view that one or other of the parties should have sole parental responsibility for the child, at least in respect to matters concerning the child’s health and ongoing therapy. Clearly, there will be complex issues to consider in respect to the appropriate path for the child’s education. Dr F expressed concern at the prospect of the child being home schooled rather than being progressively socialised in a special education facility within a mainstream school or a specialist school for children with ASD. This issue can be further considered when this matter is listed for further direction in two years’ time.
The ICL proposed that the Court not, at this point in time, make orders in respect to parental responsibility, in which case the current arrangements whereby the mother has essentially made all decisions in respect of the child’s ongoing therapy, would apply. As the mother is the child’s primary carer and has been intimately been involved in his treatment program, it is, in my view, necessarily the case that that responsibility should, subject to the orders that I make, be bestowed upon the mother.
Nonetheless, it is appropriate for orders to be in place for the father to be informed of the treatment that is being provided to the child. Orders will be made to that effect.
As an order for equal shared parental responsibility will not be made, the pathway set out in section 65DAA of the Act does not apply and the task before the Court is to make parenting orders that it considers to be in the best interests of the child without necessarily applying a presumption that the child should spend equal or substantial and significant time with each parent.
Paramount consideration in making parenting orders
Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to the child, the Court must regard the best interests of the child as the paramount consideration. This is also confirmed in section 65DAA.
Section 60CC sets out the list of matters that the Court must consider in determining what is in the child’s best interests. Whilst the Act requires the Court to consider all section 60CC factors, the central issue in these proceedings is balancing the primary considerations set out in section 60CC(2) against one another. Those primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, section 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)).
Additional considerations
Section 60CC(3) sets out additional considerations in determining what is in the child’s best interests. At this point, it is sufficient to note that, broadly, those considerations deal with the following matters:
a)Issues relating to the child – their views, level of maturity, culture and relationships;
b)Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility;
c)Issues of family violence;
d)Effect of change;
e)Practical difficulty of implementation of orders;
f)Avoiding further proceedings; and
g)Other relevant matters.
In this matter, to ensure that all section 60CC considerations are taken into account, it is appropriate to address the additional considerations set out in section 60CC(3) prior to addressing the primary considerations set out in section 60CC(2).
Issues relating to the child - their views, level of maturity, culture and relationships
Any views expressed by the child
Section 60CC(3)(a) requires the Court to have regard to any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.
Given the child’s young age and immaturity, this factor is not a relevant consideration.
The nature of the relationship of the child with each of the child’s parents and other persons
Section 60CC(3)(b) requires the Court to consider the nature of the relationship of the child with each of his parents and other persons, including any grandparent or other relative.
In the context of the parties’ short relationship, there is a limited history of joint parenting. At the time of the parties’ separation, the child was 4 or 5 months old and was still being breastfed by the mother. The mother has remained the child’s primary attachment figure since that time. As will be discussed, this is particularly significant in the context of the child having ASD.
It is clear that the child also has a strong bond with his maternal grandmother who cares for him on those occasions when the mother is not available. This included, for instance, during the course of these proceedings. The child also has a close relationship with the maternal grandmother’s partner, as well as a male friend of the mother.
The mother does not have siblings and, accordingly, there are no other maternal aunts or uncles with whom the child has a relationship.
The mother acknowledged that, at present, the child has no relationship with his father or his paternal grandparents. However, if it is possible to restore the child’s relationship with the father, there is a potential for the child to develop a relationship with the extended paternal family, including the families of the father’s two brothers and sister. The paternal aunt has two children, DD, aged three and EE, aged one. One of the paternal uncles has two children, FF, aged four and GG, aged one.
During the course of the proceedings, I commented that the paternal grandparents presented as particularly decent people. They both gave their evidence in a clear and responsive way, without embellishment. In that respect, the paternal grandfather informed the Court that while he had been a medical professional, it was not part of his training or experience to deal with ASD. He acknowledged that he was also on a learning curve in dealing with ASD.
Despite the extensive litigation that has persisted between the father, his son, and the mother, the paternal grandfather did not appear to display any malice towards the mother. In that context, in giving oral evidence, the paternal grandfather acknowledged that the mother had never been angry or aggressive towards him and he reciprocated that attitude.
I accept that the paternal grandfather is genuine in stating in his Affidavit that he is willing to “meet any orders the Honourable Court thinks suitable to allow [the child] to be involved in both [the father]’s and our lives”. The paternal grandmother expressed a similar preparedness.
I also accept the genuineness of the paternal grandfather in stating that he is prepared to be part of the “care package” in respect to the child’s condition. He stated that, in the event of orders being made for the child to be reintroduced to the father, he would “have to learn about a new child” and just as he has supported all of his children and grandchildren, he would do the same for the child. I accept that to be the case.
The paternal grandmother stated that, after the mother relocated with the child to N Town following the parties’ separation, she communicated with the mother by text message and the mother relayed information to her, including sending some photos of the child. The paternal grandmother stated that she saw no difficulty in her communicating with the mother in the future.
I am satisfied that the child’s paternal grandparents have the capacity to play a constructive and meaningful role in the child’s life, including in terms of providing assistance to the father and the child with regard to the particular challenges of the child’s ASD. It is not in the child’s interests for orders to be made that cut off that potential significant resource for him.
The maturity, sex, lifestyle and background of the child and either of the child’s parents
Section 60CC(3)(g) requires the Court to consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant.
The most significant aspect of this case is the fact that the child has ASD and, consequently, has special needs. Both parties acknowledge that the child is not functioning at a normal level for his age. As at the date of the trial, the child was approximately 4 and a half years old, but was functioning at about the level of an 18 month old.
Dr F summarised the child’s condition as follows:
There is abundant collateral professional material confirming problems which lie predominantly in the areas of [the child]’s capacity to regulate his behaviour and his emotions, his capacity for relationship, and his cognitive capacity. In all three areas he is significantly delayed and he qualifies for a diagnosis of level II Autism Spectrum Disorder.
Dr F further explained that:
Level II is exemplified by marked deficits in verbal and non-verbal social communication skills, social impairments even in the presence of support, limited social interactions and reduced or abnormal responses to social overtures from others.
Dr F accepted that a reasonable summary of the child’s condition is as set out in correspondence from the mother’s legal representatives dated 19 September 2017, as follows:
… His social competence is still significantly behind age-appropriate benchmarks and his capacity to comfortably socialise with children or adults was described as being very much in the early stages, with extreme stranger wariness continuing to impede his socialisation without causing great distress. In terms of the social aspect of his development, deficits were identified in secure attachment, learning social behaviours and experiencing shared relationships.
As a result of his condition, the child has a propensity to be startled by events that occur in his immediate environment. In that respect, in his third report, Dr F relayed a conversation that he had had with Ms K (“Ms K”), Early Childhood Educator, who is involved in the treatment of the child. Dr F summarised the advice he received from Ms K, as follows:
She said there were quite a number [of causes of the child startling] but most prominent include noisy younger children, loud motors including vehicles and equipment like blowers, and very noisy trucks. I asked her whether there were any visual cues which cause startling. Her response to this was to speak of songs that he does not like, by which I think she meant certain music clips played on devices. She confirmed that most of the triggers are auditory.
Ms K’s observations were consistent with those of one of the child’s therapists, Mr B. The observations of Mr B were noted by Dr F in his third report, as follows:
When I spoke with [Mr B], he told me that [the mother] has been consistently employing a very considered plan for expanding [the child]’s social behaviour and attachments. He said the pace of this has been very slow because [the child] is so easily alarmed. He indicated that he has observed [the child] to be become alarmed, avoidant and overreacting if his mother has prodded him a little more than usual in some new but desired direction.
Nevertheless, there are indications that with the therapeutic interventions that have been coordinated by the mother, the child is making what Dr F describes as “significant and clearly verifiable progress in his communication abilities”.
Despite those improvements, however, it was accepted by the parties that, at this stage of his development, it is important for the child to maintain contact with his secure attachment figures and have a regular routine.
Dr F expressed the opinion that the orders, as originally proposed by the father, would present difficulties for the child. In that respect, in his first report, Dr F stated:
In my view, [the child] would not cope with this. He can barely cope with the smallest change to his routine or expansion of his social network, and he is easily overwhelmed by sensory overload.
….
In addition, [the child] still struggles even with the routine in his mother’s home, so I think that a new routine and environment in his father’s home would be unbearable for [the child] at this point.
One of the child’s treating therapists, Mr C, expressed the view that “the action of exposing [the child] to situations before he has developed requisite capabilities is clinically not in the child’s best interest”.
In his report dated 18 September 2017, Mr C expressed the view that the mother’s presence remains essential to the child’s graded exposure to new experiences.
Having regard to the child’s ASD, I accept the view of Dr F, as expressed in his second report at page 25, where he stated:
In my view, it’s unavoidable that [the father] is going to need to be reintroduced to [the child] through one of his therapists.
Dr F further stated that:
The most constructive way for this to occur is for him to first become recognisable to [the child] and then to participate in some co-therapy with the therapist, in much the same way as [the mother] does with a therapist, but only when [the child] is sufficiently independent with a therapist for the mother to be able to leave the sessions and the father be present. In my view, this is still quite a long time away.
The opinion of Dr F, as expressed in those paragraphs, was also supported by the ICL and, in final submissions, by Senior Counsel for the father. As noted, the mother opposes any program for the child to be reintroduced to the father.
The culture of the child if the child is Aboriginal or a Torres Strait Islander
Section 60CC(3)(h) requires the Court to consider issues pertaining to the culture of the child if the child is Aboriginal or Torres Strait Islander.
This factor is not a relevant consideration in this matter.
Issues relating to the parents – decision making, time spent with the child, fulfilled obligations, attitude, capacity and exercise of responsibility
Long term decision making, time and communication
Section 60CC(3)(c) requires the Court to consider the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child.
The mother has been the child’s primary carer since his birth and has been almost solely responsible for his care since the parties’ separation.
The father has not had an opportunity to exercise any direct parenting of the child since the parties separated. Nevertheless, as noted by Dr F, he has continued to attempt to remain abreast of what is happening with the child’s therapy.
The parent’s obligations to maintain the child
Section 60CC(3)(ca) requires the Court to consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
The father is not paying child support for the child. The father says that he offered to contribute to the child’s costs shortly after the parties separated and transferred some money into the mother’s account, but that the mother “reprimanded” him for this. The father further stated that, upon contacting the Support Agency, he was informed that no claim for child support has been sought by the mother.
The capacity of each of the child's parents
Section 60CC(3)(f) requires the Court to consider the capacity of each of the child's parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs.
At present, the mother is the child’s sole carer, although she receives a considerable amount of assistance from her mother. The evidence of therapists engaged by the mother to assist the child highly commend her achievements in developing a program of therapy for the child and the success that it is having.
The father acknowledges that, despite the parties’ differences, the mother has a considerable amount of knowledge about the child and that the mother is best placed to understand the child and to pick up his cues. This includes the mother having knowledge of the child’s favourite foods and what he likes to do. The father also acknowledged that the mother has knowledge of the child’s treatment and knows what triggers an adverse reaction from him.
I am satisfied that the mother has devoted herself to the child’s rehabilitation and that she is highly capable in the assistance she has been able to provide. In that respect, in his first report, Dr F expressed the opinion:
I am satisfied that [the mother] has thrown herself into the business of a rehabilitation program for [the child] in a comprehensive, informed and imaginative way. It would be a pity if this was somehow dismantled or put into different hands.
In his report dated 20 September 2017, Mr B refers to the child having made remarkable progress, considering his initial presentation. Mr B expressed the view that the child’s progress has corresponded with the targeted interventions employed and coordinated by the mother.
The mother contends that the father does not have the capacity to attend to the child’s needs. In fact, the mother contends that the father has engaged in conduct that has been detrimental to the child and that the child is now vulnerable to being alarmed by triggers associated with that past conduct. In that respect, the mother contended that the father persisted in attempting to interact with the child in a “peek-a-boo game” in circumstances where the child was distressed. That incident is recounted at paragraph 176 of the mother’s trial Affidavit, as follows:
[The father] kneeled on the passenger seat facing the back seat. He put his camera in the back of the seat so it filmed [the child]. He looked over to the back seat and started to pull scary faces at [the child]. He opened his mouth wide and banged his teeth together, making loud biting sounds and asking [the child] "can you do this". Then [the father] bit his teeth again at [the child] and said again "can you do this?" He opened his mouth wide and stuck his tongue out as far as it would go. His eyes were open wide and looked scary. His tongue was being poked in and out and from side to side, fully extended.
In the course of giving oral evidence, the father acknowledged persisting with the game on “lots” of occasions and having ignored the mother’s requests for him to desist.
The mother is of the view that, as a result of the father making “scary” faces to the child, the child has an adverse reaction to seeing photos of the father. At paragraph 308 of the mothers trial Affidavit, she states:
[The child] invariably adverted his gaze, covered his eyes or sometimes would sit there with a blank stare. On the first occasion, I recall that he bared his teeth and bit himself, and became very distressed. In my view the effect was to re-traumatise [the child] and unsettle him for some hours or days.
As a result of that behaviour, the mother stated that she ceased showing photographs of the father to the child.
In his second report, at page 21, Dr F expressed the view that:
It appears to me that the booster seat incidents largely reflect [the father] having backed himself into an unproductive habit in which he became more intent on trying to stimulate [the child] to imitate him and indeed to show the sorts of reactivity which I think [the child] probably had been showing routinely prior to about September or October 2014. He does not seem to have recognised how unproductive this was and indeed I think probably [the mother]’s well-intentioned efforts to divert him into a more appropriate activity just caused him to become more stubborn and entrenched despite [the child]’s obvious discomfort with this.
At page 23 of his second report, Dr F opined:
I also formed the view that he has become very intensely involved in trying to prove that [the mother] was wrong and that he could animate his son at a time when his son’s autistic behaviours were becoming more entrenched which has proved to be something of an issue.
Further, at page 23 of his second report, Dr F stated:
I think in some respects [the father] is not coping as well and he became very deeply engaged in, and stubborn about, what amounted to a tug of war with [the mother] over how he interacted with [the child].
Nevertheless, in his first report, Dr F doubted that the father’s conduct in attempting to engage with the child in the “peek-a-boo game” had undermined the child’s relationship with the father. However, Dr F stated:
I think it does underscore that [the father] is going to need time to learn to read [the child] better and find a repertoire of responses that don’t unsettle him.
In relation to those historical visits between the father and the child, Mr B provided some basis for mother’s view to the extent that he was of the opinion that it would have been traumatic for the child to have been separated from the mother. In that context, Mr B expressed the following in response to a question from Senior Counsel for the father:
… When I consider the likelihood of [the child] being traumatised, it would have been traumatised by some of the events that occurred in the absence of his mother, as I previously stated. I’m aware of the view that they have had traumatic – that he has been traumatised by various interactions with his father…
However, Mr B acknowledged that he had formed that view on the basis of advice that he had received from the mother. Mr B further acknowledge that his training is in the social science, rather than in the area of psychiatry or neurology.
In those circumstances, I prefer and accept the opinion of Dr F that the child’s ASD has not been exacerbated by any conduct on the part of the father. In arriving at that conclusion, I also note that that opinion is consistent with the view of Dr W, who first diagnosed the child with ASD.
In a report dated 20 October 2015, Dr W states:
…it is clear that [the mother] has formed the opinion that [the child] has been traumatised by contact visits with the father.
Dr W further records:
I am personally not of the opinion that the limited nature of the contact visits with his father explains [the child]’s behavioural and developmental difficulties.
I accept that, despite my decision to accept the opinions of Dr F and Dr W, it is unlikely that the mother will change her view that the father has engaged in conduct that has aggravated or exacerbated the child’s ASD. However, even if the mother is not prepared to accept a contrary view, she should have regard to the advice of Mr C, which Dr F summarises in his third report, as follows:
I asked [Mr C] whether [the mother] had a particular focus on triggers which she identifies to be associated with [the father]. If I understood him correctly, she has listed a number of these. However he said that his approach is to point out that all of these are things which need to be dealt with because [the child] will meet all of them in the wider world. He gave as an example that she had been concerned about [the child’s] response to diesel engines. He said he has pointed out to her by way of example, that [the child] is going to come within earshot of many diesel engines and he needs to be able to learn to manage that. He said that he does not negate her views, but he emphasises the need to move beyond them.
That advice is, in my view, prescient.
A further concern expressed by the mother in respect to the father’s parenting capacity was what she alleged to be his bad temper and “tendency to anger quickly”. As examples, the mother gave evidence of complaints being made against the father at his place of employment, as a result of the father’s use of bad language. The mother further alleged that a formal complaint involving sexual harassment and intimidation had been made against the father by a student.
The mother further contended that the father would frequently lose his temper with the parties’ three dogs. The mother asserted that on two occasions she had observed the father grab one of the dogs by the neck, resulting in her protesting that the dog was being hurt. The mother also stated that on one occasion, in anger, the father threw one of the dogs over the fence, while the dog was yelping.
The father rejected the mother’s contentions that he has a bad temper and a tendency to become angry. The father did acknowledge that, on one occasion, he was spoken to by his supervisor at work regarding the use of bad language. The father further acknowledged that he had been spoken to regarding taking a student on a drive during a lunch break. The father also acknowledged throwing the dog over the fence, but stated that he did so in circumstances where the dog had escaped from the parties’ yard.
Despite these concerns, expressed by the mother, Dr F expressed the view that:
There appears to be no corroboration that [the father] has an anger management problem which requires treatment. However, I noted that on several occasions, [the father] referred to [the mother] as baiting him. I felt that this and other comments portrayed a degree of sensitivity and reactivity in him which may be manifested in demonstrative impatience.
The mother also challenged the capacity of the father to properly care for the child, as a result of his attitude towards corporal punishment of children. In that respect, the mother stated that during the course of conversations with the father, he had expressed his view that it was appropriate for a parent to discipline a child by way of smacking. In giving oral evidence, the father acknowledged that it had been his view that physically disciplining children may be justified. However, he acknowledged that it would be inappropriate in the circumstances of a child with ASD.
Nevertheless, it is of note that, in his first report, Dr F recommended:
I also think it would be helpful if [the father] were to attend a course about non-physical discipline, partly in his own right and partly to provide some reassurance to [the mother].
The father acknowledged that he has not undertaken such a course.
During the course of the hearing, the father acknowledged that if the child was to come into his care at this point in time, it was probable that he might misinterpret some of the child’s behaviour and that might have negative repercussions for the child. The father further acknowledged that if orders were made for the child to live with him, there would be times when he would not know how to act in relation to the child.
The father stated that he has undertaken two half-day Aspect courses and that he has purchased four or five books regarding children with ASD. This information, he stated, gave him some knowledge of socialising and dealing with the behaviour of children with ASD. The father acknowledged, however, that there is a need for him to undertake some further parenting courses in order to acquire an understanding of how to deal with the child’s particular and unique needs.
It is to the credit of the father that during the course of the trial, he significantly modified his position and abandoned his application for orders that the child live with him, rather than the mother.
It is also to the father’s credit that he abandoned his application for there to be a change in the professionals currently providing therapy to the child.
Is also evident that both of the parties have personality vulnerabilities that have the potential to impact upon their parenting capacity. In his first report, Dr F refers to the propensity of the father to be very stubborn. In his third report, Dr F notes that the mother may also have “significant personality vulnerabilities”, which he identifies, as follows:
The vulnerable areas identified in [a personality test undertaken by [Dr O]] seem to point towards a person who is hypervigilant, hypersensitive, hypochondriacal and very suggestible. If I understand [Dr O’s] documents correctly, she largely accounts for these in terms of the impact of [the father] on [the mother]’s life. To the extent that my view is that [the mother] may have overplayed [the father]’s fault, I am concerned that the [test] results cannot be solely attributed to [the father] but they are reasonably long-standing, background factors in [the mother]’s personality. If that is the case, these are also personality traits which correlate broadly to overprotective parenting.
Dr F expanded upon that view in his oral evidence, when he said:
You know, parents of children with disabled – the burden of disability, particularly with a child like him, is very substantial. And even if everybody survives the capacity to – when the child gets older, and particularly when they get bigger and more difficult to handle physically, if they do become difficult to handle physically which some autistic kids do, the capacity to have or at least the availability of respite care with people with whom the child is familiar is – is really important.
Dr F expressed the view that there was no basis “for excluding the father from eligibility for that role.”
In giving oral evidence, Dr F stated his views in relation whether there is value to the child of having the father in his life, as follows:
I think there is in the same way as there is for any child to have their father in their life. You know, you feel more like other kids. You get an awareness of what a dad is all about. You have someone who gives more or less unconditional love in the same way – in the way parents do. You get exposure to extended family. You know, the other parent does different things for the children to which the primary parent does. I mean there’s a – there’s no reason why in his own way he can’t benefit from having a – having both parents in his post-divorced family that any other child does. But, you know, he just simply incorporates it in a different sort of way. You know, most kids with autism spectrum disorder have two – even in divorced families have got two parents in their lives.
Mr C was also of the view that, subject to identifying an appropriate means by which it could be achieved, the child should be reintroduced to the father. In that respect, Mr C stated:
I believe the child, any child, should have contact with those people who are significant in their lives. So to answer that, right, the question, is of course I do. The real question is how to do it.
Mr B was of a similar view, stating that:
I think all children benefit from a relationship with both parents. One has to make decisions about what is more important for each child, but no, I would not underestimate the importance of a child having a relationship with both parent [sic].
For these reasons, providing that the issue of unacceptable risk can be addressed, I am satisfied that it is in the child’s interests to have a meaningful relationship with both of his parents.
Senior Counsel for the mother contended that while it is undoubtedly in the interests of the child to have a relationship with his father if that can occur, the steps proposed by Dr F for the child to be reintroduced to the father only present the possibility of that occurring and not the certainty that it can occur.
It was contended that the uncertainty and associated risk of the child being exposed to further litigation, if the Court does not, at this stage, make final orders should be balanced against that possibility. I will address the issue of risk immediately below.
Unacceptable risk
The mother indicated that it was her belief that if the child was in the father’s care, the father would not “smack him or physically discipline [him]”. That is also my assessment. In other words, I do not consider that the child would be at physical risk in the presence of the father.
It was accepted, however, by all parties, that removing the child from the mother as his primary attachment figure would be traumatic for the child. Accordingly, orders should not be made for the child to be removed from the care of the mother, to facilitate the child having time with the father, unless there is another appropriate attachment figure present for the child.
The Court considers that the cautious, staged approach provided for in its orders will ensure that the child is not exposed to unacceptable risk, in spending time with the father. That approach is consistent the caution expressed by Mr C in his report dated 13 August 2016, where he said:
The introduction of new people and professionals, [the child] may exhibit hesitation with, and to experiences. He is currently able to tolerate carefully managed and titrated exposure.
Mr C also agreed with Dr W that a safe environment for the child included a person with whom he had a secure attachment, as follows:
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 whereby the interaction was seen to be at least emotionally neutral.
Mr C further said that a long term goal in the child’s treatment is to develop his ability to socially interact with people including the father. His evidence to that effect was:
I took the view, and I still do, that building [the child]’s capability to in fact manage social interaction with people in the future is absolutely critical and so what we’ve been doing is working towards achieving exactly that and I was hoping that in my reports I reflected the slow development in relation to that. So, with respect to [the father] or anyone else, potentially to have a relationship with [the child] in the future, right, what we’re doing is moving absolutely towards that possibility. That’s exactly what we’re trying to achieve.
Further, as previously discussed, I agree with the opinion of Dr F that, in this matter, it is necessary to balance the child having a meaningful relationship with the father and broader paternal family against the potential negative effects which would accrue to the child if orders facilitating that “were to cause [the mother] sufficient distress that her parenting deteriorated and [the child]’s therapy and general well-being suffered”. In this way, it is necessary to ensure that the child will not be exposed to unacceptable risk as a result of the Court’s order not being final, at this point, and any effects this may have on the mother.
Senior Counsel for the mother contended that the Court should take notice of the fact that children thrive in circumstances where their parents are emotionally stable, where their routine is clear, where their parents are reasonably happy, where they are in settled environments and where there is, to the extent possible, no uncertainty in their lives.
A significant aspect of the mother’s argument as to why the Court should make the orders sought by her, is the result of the impact that this litigation has had upon her. The Court does not underestimate the importance of the mother’s wellbeing, as the child’s primary carer. The mother acknowledged that how she presents in the child’s presence “does have an effect on him”.
It is clear that the father’s litigious approach has inflamed the disputation between the parties and solidified the view of the mother and maternal grandmother that the father should not be a part of the child’s life.
Further, the stress of the litigation has had an indirect adverse impact upon the child. In that respect, in his third report, Dr F states:
I also think that it is likely that [the mothers]’s apprehensions about [the father], as well as the anxiety which the ongoing litigation has caused her, is picked up by [the child] and probably still plays some role in aspects of his behaviour at times of high stress for his mother.
In his report dated 20 October 2015, Dr F also stated:
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].
In the context of the mother’s distress, Senior Counsel for the mother made the following submission:
Now, we know from cases like Cilento and Cilento (1980) FLC, Rice v Asplund (1979) FLC 90-725, SPS & PLS (2008) FLC 93-363; all of that line of country that litigation visits upon children uncertainty and risk. It visits upon children the ever present risk to their routine and their stability, and what each of my friends propose through their minutes or order will perpetuate that indefinitely – indefinitely.
Senior Counsel for the mother further submitted that:
Warnick J, in his wise words as always, in the decision of SPS & PLS (2008) FLC 93-363, albeit in the context of a review of the cases on Rice v Asplund (1979) FLC 90-725 but his words are sage and they are sound, and they are apposite to the risk that is imposed by the uncertainty of the lack of a finality of orders. In what his Honour there says, in the context albeit of Rice v Asplund (1979) FLC 90-725 but its apposite here is this:
Though sometimes unstated the underlying conclusion will, or ought to be that the interests of the child is not being the subject of further litigation, it is more powerfully in the child’s welfare than to allow the applications to continue.
The impact of family law litigation on children has been recognised by the legislature. Many provisions of the Act focus upon encouraging the parties to resolve matters without resorting to litigation (see in particular ss 13A (1)(b), 63B, and 69ZQ(1)(f)). I accept the merit of the submission by Senior Counsel for the mother that ongoing litigation is generally not in the best interests of the child. In addition, with respect to the factor of uncertainty referred to by Senior Counsel for the mother, the litigation has both an enormous emotional and financial cost on the parties. I accept the evidence that the intensity of the litigation in these proceedings has been a significant contributor to the high level of stress experienced by the mother.
However, the task before the Court in this case is to balance the legislative objectives of the child having a meaningful relationship with both parents on the one hand and avoiding the child being exposed to an unacceptable risk, in terms of s 60CC(2)(b), on the other. In that respect, determining whether a child would be at an unacceptable risk with a parent involves a balancing exercise. In B and B (1993) FLC 92-357 at 79,778, the Full Court, referring to M v M (1988) 166 CLR 69, described the task of determining whether a child would be at an unacceptable risk in spending time with a parent as being to “achieve a balance” between the risk of detriment to the child from abuse and “the possibility of benefit to the child from parental access”. Specifically, the Full Court said it is necessary to determine whether “the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access”.
Writing extra-judicially, the Honourable John Fogarty AM, a former judge of this Court, said the following in ‘Unacceptable Risk – A return to basics’ (2006) 20 Australian Journal of Family Law 249 at 261:
… unacceptable risk in the High Court’s formulation [in M v M (1988) 166 CLR 69] requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is ‘acceptable’ when balanced against other factors and other orders.
Where an unacceptable risk is alleged, the Court must give consideration to the facts of the case and decide whether or not those facts could reasonably be said to raise an unacceptable risk of harm: Stott & Holgar and Anor [2017] FamCAFC 152 at [38].
In assessing whether the child would be at such an unacceptable risk, I again note the opinion of Dr F that “although reintroduction of [the father] into [the child’s] life would be most unwelcome to [the mother], it would not cause her to break down and for her parenting capacity is to substantially deteriorate”.
The view of Dr F, in that respect, is consistent with the views of the mother’s treating Psychologist, Dr O, as expressed in response to cross-examination by the ICL, as follows:
Question: In the event that the court did make an order for [the child] to spend time with the father on any terms, are you able to assist the court, in your opinion, as to how that might have any impact upon the mother?
Answer: Well, yes, if she feels that her son is distressed by the contact, that if it’s not going well, that would cause her a great deal of distress that she – if – if she has no choice in the matter – to have to be able to have the skills to deal with, to manage.
Question: Do you believe, based on what you’ve done with [the mother], that she has those skills?
Answer: Yes.
In that context, I permitted a specific question from the ICL to Dr O as to whether the mother’s concerns about the impact upon the child of being reintroduced to his father would adversely impact upon her effective parenting of the child. In response to that question, Dr O replied:
I have to put this in general terms to start with: that all people – we all suffer stress and anxiety, and things happen throughout our days and throughout our lives, and we find ways to handle that. [The mother] would also find ways to handle it. That doesn’t mean that we’re always effective at it, and it can have impacts that we struggle with. If it had these kind of impacts that I refer to, she would struggle with them, but I think she would overcome them, and she would always put the best interests of her son first.
In seeking further clarification of Dr O’s views, the ICL further questioned:
Question: Accepting that she would always put her child’s interests first, and accepting that she would struggle, do you believe, based on your experience of her, that it would affect any aspect of how she would care for her child? And by “affect” - - -and I mean affect in a detrimental way?
Answer: Yes. I assumed you meant – no, it would not affect her detrimentally. It would affect her personally. She would suffer the effects of stress, but she would do the best she could to provide the best possible outcome for her child.
Having regard to that evidence of Dr O, I am of the view that implementing the cautious program recommended by Dr F to attempt to reintroduce the father to the child would not affect the mother in such a manner as to present an unacceptable risk to the child.
There is, in my view, no reasonable basis to exclude the father as a person with whom the children should have a relationship with in the future. Indeed, each of the professionals involved in the treatment of the child mirrored that view.
Orders
For the reasons I have previously set out, I am of the opinion that orders should be made to facilitate the child being reintroduced to his father. The third report of Dr F outlines a process for that to occur.
Mr B, who has been intimately involved in providing therapy for the child, stated that “it would certainly be possible” to arrange therapy such that the father would be a passive observer of an exchange or a session.
The staged approach proposed by Dr F would see the father initially view video recordings of the child’s therapy sessions, in order to provide an initial platform for time with the child to occur. The second stage will facilitate the father being a passive observer of those therapy sessions.
I agree with the views of Mr B that, at this stage, it is not possible to predict how the child will react to the implementation of this staged program. For that reason, I propose making interim orders, as recommended by Dr F, and to facilitate the matter being reviewed by the Court in two years’ time, when more information is at hand as to how the child has responded to his reintroduction to the father. At that time, the Court will review developments in the matter, with a view to considering final orders.
In final submissions, the ICL raised the issue of whether it was appropriate, in circumstances where Mr B and Mr C have been intimately involved in working with the mother in providing therapy for the child, for them to continue to be involved in a process that would involve the reintroduction of the father into the child’s life. As previously noted, the father initially objected to the ongoing involvement of those therapists, however, having considered the totality of evidence, withdrew his objection.
In circumstances where the evidence is such that the child has difficulty in establishing relationships with people with whom he is not familiar, it is my view that the preferable course of action is to continue the involvement of both Mr B and Mr C in providing therapy for the child. The father objected, however, to Mr B being the person who coordinates or oversees the progression of the child’s therapy and the introduction of the father to the child. As a result of Mr B’s intimate understanding of the child and his needs, the Court does not consider that the father’s concerns, in relation to Mr B filling that role, outweigh the benefit to the child of having Mr B oversee the delicate reintroduction process.
The ICL also proposed that orders be made to crystallise the current care arrangements for the child, so as to retain the child “on the path of progress, which we know he is currently on at the moment” and which would also provide a window for the father to become involved in that therapeutic process. In circumstances where I have noted the controversy surrounding whether the mother complied with Order 7 made on 5 March 2016 by arranging for the child’s treatment to be “home-based”, I agree that an order should be made to confirm the current treatment program. That order will, however, provide flexibility in the event that there needs to be a change or supplementation of treatment.
The father’s Senior Counsel submitted that:
It would be important… That there be some recording of the [child’s] presentation immediately before the therapy so we can see if he’s agitated or if he is not agitated or how his presentation is, and then afterwards as well because it would be a crosscheck, and that would happen in conjunction with the therapist.
I do not, however, make such an order. I agree with the ICL that the purpose of the video recording is to, in effect, provide an opportunity for the father to be a passive observer of the therapy. I am concerned that the video recordings should not, themselves, raise issues that will be traversed in further proceedings. Specifically, it would be inappropriate for the videos to be used as a basis upon which the effectiveness of the therapy provided to the child could be challenged. That is not the purpose of the videos.
In respect to video recording of the therapy sessions, I agree, however, with the submissions of Senior Counsel for the father that it is unnecessary for order 8.3, as proposed by the ICL, to be prescriptive in the sense of identifying a period of 60 minutes.
The mother’s written submissions express concern about the prospect of herself and the child being videotaped in therapy sessions. It was stated that “presumably her actions [will] be examined and inevitably criticised and the inevitability and uncertainty of more litigation”. In the context of the history of this litigation, I agree that is a concern. For that reason, I will make an order that such recordings are not admissible for the purpose of further proceedings.
I further agree with the ICL that to commence the process of the father being reintroduced into the child’s life, the mother should be required to show the child photographs of the father and those photographs should not be marked. The mother agreed to an order requiring her to provide a photograph of the child to the father and agreed that the photograph should not contain a watermark. The mother further contended that there should be a restriction on the father republishing those photographs on the Internet. The mother contended, however, that the provision of a photograph every month, rather than fortnightly, was reasonable. The father submitted that, in lieu of the obligation for the mother to provide a photograph of the child, the order should be structured such that on alternate fortnights, the mother provide a video of approximately one to two minutes’ duration. That submission is, in my opinion, reasonable, and I will provide for that to occur. However, in circumstances where the matter will not be relisted for two years, it is my view that the provision of photographs and videos on a monthly basis is appropriate.
The father further submitted that paragraph 8.1 of the ICL’s proposed order should be amended to remove the exemption from the requirement of video recording, if the child’s therapy is being provided at home. I have expressed concern that, in the period subsequent to orders being made on 5 March 2016, the child’s therapy was provided at home and thereby removed any opportunity for the father to observe that therapy. In those circumstances, it is my view that a similar outcome should be avoided following these proceedings. I will therefore remove that exemption.
I propose to slightly amend order 8.2 of the orders proposed by the ICL to require the mother, herself, or by arrangement with the professional who is providing therapy to the child, to forward the relevant video to the father. This avoids a situation where a therapist may be uncooperative in facilitating that occurring.
I also agree that it is appropriate for the father to be informed of significant matters affecting the child, including whether the child suffers a serious illness or injury and that there should be an ability for the father to send letters and cards to the child.
While I have made an order for the matter to be relisted in two years’ time, I agree that it is appropriate for the ICL to have liberty to apply for the matter to be relisted in the event of an issue arising in the meantime.
For all these reasons, I make the orders as set out at the commencement of these Reasons for Judgment.
I certify that the preceding two-hundred and seventy (270) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 2 August 2018.
Associate:
Date: 2 August 2018
Key Legal Topics
Areas of Law
-
Family Law
-
Evidence
-
Statutory Interpretation
Legal Concepts
-
Expert Evidence
-
Procedural Fairness
-
Remedies
-
Statutory Construction
-
Jurisdiction
0
4
3