Pilau and Aikendorf

FAMILY COURT OF AUSTRALIA

PILAU & AIKENDORF

[2017] FamCA 523

FAMILY LAW – CHILDREN – Final orders – Parental responsibility – Where the child has been diagnosed as being on the autism spectrum – where the parties are unable to communicate effectively with respect to the child’s health needs – where the parties are otherwise able communicate and effect handover – Where an order is made for the parties to have equal shared parental responsibility and for the mother to have sole parental responsibility in respect of the child’s health.

FAMILY LAW – CHILDREN – The father’s time with the child – Where the mother seeks that the father’s time with the child be supervised – Where the mother alleges the father has mental health issues – Where the father has previously had unsupervised time with the child – Where the father seeks alternate weekends with the child – Where the Court orders that the father’s time with the child be unsupervised and tempered to account for the child’s autism and difficulties adjusting.

Family Law Act 1975 (Cth) ss 60B(1), 60CA, 60CC, 61DA, 65DAA

MRR v GR (2010) 240 CLR 461

APPLICANT:

Mr Pilau

RESPONDENT:

Ms Aikendorf

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of SA

FILE NUMBER:

ADC

1507

2015

DATE DELIVERED:

20 July 2017

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

12, 13, 14, 15, 16, 19, 20 December 2016, 30 January 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr McGinn

SOLICITOR FOR THE APPLICANT:

Andersons Solicitors

COUNSEL FOR THE RESPONDENT:

Ms Lewis

SOLICITOR FOR THE RESPONDENT:

Cardone & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Lee

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of SA

Orders

That all previous orders be dismissed.
That the parties have shared parental responsibility for B PILAU (otherwise known as B AIKENDORF-PILAU) born … 2013 (“the child”).
That the mother have sole parental responsibility in respect of health issues affecting the child subject to a requirement that she will advise the father in writing (electronically or otherwise) and provide her views about any major issues affecting the child’s health (including dental) and shall consult with the father about such issues, but if no agreement is reached between the parties THEN the mother shall make the final decision and advise the father in writing of that decision.
That the child live with the mother.
That the child spend time with the father as follows:-
(a)Until 7 October 2017 each Tuesday and Saturday from 9 am to 1 pm;
(b)From 7 October 2017 to the commencement of first term of the 2019 academic year each Saturday from 9 am to 4 pm;
(c)From the commencement of first term of the 2019 academic year:
(i)from Friday at 5 pm to Saturday at 5 pm and each alternate week thereafter;
(ii)on the intervening Sunday from 9 am to 5 pm;
(d)From the commencement of 2020 from Friday at 5 pm to 4 pm Sunday each alternate weekend;
(e)From the commencement of 2021 from after school Friday (or 3 pm if a non-school day) to the commencement of school on Monday (or 9 am if a non-school day) on each alternate weekend;
(f) During school holidays as follows:
(i)from 2019 the father’s weekend time shall be extended by one night to 5 pm on the Monday;
(ii)from 2020 the father’s weekend time shall be extended by two nights to 5 pm on the Tuesday;
(iii)from 2021 the father’s weekend time shall be extended by four nights to 5 pm on the Thursday;
(g) On special occasions as follows:-
(i)On 24 December 2017 for a period of eight hours at times to be agreed between the parties with the father’s time on 23 December 2017 to be suspended;
(ii)during Christmas 2018 from 3 pm on Christmas Day to 3 pm on Boxing Day and each alternate year thereafter NOTING that the child spend time with the mother from 3 pm on Christmas Eve to 3 pm on Christmas Day in each alternate year thereafter;
(iii)during Christmas 2019 from 3 pm on Christmas Eve to 3 pm on Christmas Day and each alternate year thereafter NOTING that the child spend time with the mother from 3 pm on Christmas Day to 3 pm on Boxing Day in each alternate year thereafter;
(h)On the child’s birthday as and from the commencement of the alternate weekend time for a period of four hours as agreed between the parties.
(i)On Father’s Day from 9 am to 4 pm if not otherwise in the father’s care PROVIDED that the father’s time is suspended on Mother’s Day from 9 am to 4 pm.
(j)That such other times as may be agreed between the parties.
That all handovers which do not occur at the child’s school shall be effected by the mother delivering the child to the father at the commencement of time and the father returning the child to the mother at the conclusion of time.
That each party continue to utilise the communication book (supplemented by SMS text messaging) to detail the following:-
(a) Any concerns that have arisen regarding the child;
(b)The child’s dysregulation, and any information which will assist the other party to understand the level of dysregulation and the circumstances leading to dysregulation;
(c) Any therapy performed on the child.
Both parties be at liberty to liaise directly with the child’s kindergarten or school and receive any newsletters, notices or information (including photographs) about the child and that both parties be at liberty to attend parent/teacher appointments providing they are separately held.
That the father continue to attend upon his treating general practitioner and psychiatrist and follow all reasonable directions.
That should there be a termination of a professional relationship between the father and his current treating psychiatrist, the father shall advise the mother within 14 days of the termination and the details of his new psychiatrist, if any.
That in the event of a medical emergency involving the child’s hospitalisation, each party will inform the other as soon as possible of the nature of any emergency and where the child is hospitalised.
That in the event the child is too unwell to spend time with the father, the mother will obtain a medical certificate for the child and provide that medical certificate to the father in the communication book during the next occasion the child spends time with him.
That the father do follow all recommendations from the child’s occupational therapist, speech therapist, paediatrician and any other medical professional in respect of:
(a)       any medication administered to the child;
(b)       any therapy performed on the child;
(c)       the care of the child.
That the father be at liberty to consult the child’s paediatrician, speech therapist, occupational therapist and any other health professional with respect to the engagement, care and management of the child with the expressed purpose of the father gaining an understanding of the child’s needs, development and management issues and strategies in order to better care for the child.
That the mother will do all things necessary to provide appropriate authorities to the child’s health professionals to enable them to provide information as may be sought by the father.
That the parties are to facilitate the child being able to communicate with the parent who does not have the care of the child at any reasonable time that the child requests.
That each party is at liberty to attend at the child’s school or kindergarten or any other extra-curricular activity to which the parents are usually invited PROVIDED that neither of them approach each other, but in respect of the father he shall be restrained from attending such events until the child’s birthday in 2017.
That both parties are restrained and an injunction is granted restraining each of them from:
(a)denigrating the other parent in the presence of the child or allowing any other person to do so;
(b)discussing the proceedings with the child or allowing any other person to do so;
(c)allowing or directing any other person to communicate with the other parent on their behalf.
That each party keep the other informed of their current residential address, mobile and landline telephone numbers and any available email address and provide same to the other parent within seven (7) days of such change to address and number.
That each party be permitted and if necessary authorised by the other party to liaise directly with the child’s school or kindergarten together with any sporting organisation that may be conducting extra-curricular activities and to receive any notices, information, newsletters, school reports, order forms about the child’s photographs, information about the child’s progress at school as well as parent/teacher appointments and the information about extra-curricular activities involving the child.
That the order appointing the Independent Children’s Lawyer be discharged.

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 Pilau & Aikendorf 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 ADELAIDE

FILE NUMBER: ADC 1507 of 2015

Mr Pilau

Applicant

And

Ms Aikendorf

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

These proceedings were commenced in 2015 by Mr Pilau (“the father”) seeking parenting arrangements in respect of the parties’ son the child B born in 2013 (age three years).
The father’s Amended Initiating Application filed 27 September 2016 sets out the orders sought as following:-
a)That the parties have equal shared parental responsibility for the child;
b)That the child live with the mother;
c)That the child spend time with the father on a graduating basis commencing with each alternate weekend from 5 pm Friday until 4 pm Saturday in June 2017 and increasing to each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday in June 2019;
d)That upon reaching the age of 10 the child live with the parties on a week about basis.
e)That the child spend equal time with each party on special occasions – Easter, Christmas and the child’s birthday – in alternating years and with the respective party on the mother’s birthday/day and the father’s birthday/day.
f)That each party facilitate the child’s telephone communication with the non-resident parent;
g)That each party keep the other informed of their address and telephone number and each party be permitted to liaise with the child’s school and health care providers and to attend school events.
h)That the father continue to attend upon his treating medical practitioner.
By Further Amended Response filed 28 November 2016, Ms Aikendorf (“the mother”) seeks that the father’s orders be dismissed, that she have sole parental responsibility and that the child live with her and spend time with the father:-
1)Until 7 October 2017 – each Saturday from 9 am until 1 pm;
2)From 14 October 2017 – each alternative Saturday or Sunday (alternating each fortnight from 9 am until 4 pm)
3)That the child’s time with the father occur at the paternal grandparent’s home and that either of the paternal grandparents or one of the paternal uncles be in principal attendance.
The mother seeks that the child spend 4 hours with the father on Christmas, no time with the father on Mother’s day (but time in lieu to be spent on the preceding Saturday), a period of 4 hours on the child’s birthday and time on Father’s day to increase from 4 hours in 2017 to 7 hours from 2018 onwards. She seeks an updated Family Assessment Report, the implementation of the report writer’s recommendation and that each party utilise a communication book.
She seeks further conditions on the father’s time with the child, namely that the father be restrained from driving a motor vehicle with the child in the vehicle and that he continue to attend upon his treating medical practitioner.
The parties separated on a final basis on 8 October 2014 when the child was 12 months old. Since that time, the child has lived with the mother and spent regular time with the father most weekends with such time occurring at the home of the paternal grandparents and either in their presence, the father’s brother or an independent supervisor.
In 2016 the child was diagnosed as being on the autism spectrum, suffering from a sensory processing disorder and a receptive language delay. The child has also been diagnosed as suffering from a pelvic kidney and smaller than normal blood cells.
The submissions by the mother focus upon the father’s ability to co-parent efficiently and to make suitable arrangements for the child’s autism. The mother states that the father suffers from mental health issues which present a risk to the child and accordingly his time with the child should be supervised.
The father denies any current mental illness. He concedes a history of mental illness in 2004. The father contends that he is capable of caring for the child’s needs and facilitating an effective co-parent arrangement.
An Independent Children’s Lawyer (“ICL”) was appointed to represent the interests of the child in these proceedings.

DOCUMENTS RELIED UPON BY THE PARTIES

The father relies upon the following documents:-
1)Amended Initiating Application filed 27 September 2016;
2)Trial Affidavit filed 28 September 2016;
3)Affidavit of Mr J Pilau (“paternal uncle”) filed 27 September 2016;
4)Affidavit of Mr K Pilau (“paternal grandfather”) filed 27 September 2016;
5)Affidavit of Dr L (“father’s psychiatrist”) filed 27 September 2016;
6)Affidavit of Ms M Pilau (“paternal grandmother”) filed 27 September 2016;
7)Affidavit of father filed 7 December 2016;
8)Affidavit of the paternal grandmother filed 7 December 2016;
9)Affidavit of the paternal grandfather filed 7 December 2016.
The mother relies upon the following documents:-
1)Further Amended Response filed 28 November 2016;
2)Trial Affidavit filed 28 November 2016;
3)Affidavit of Mr N (“maternal uncle”) filed 23 November 2016;
4)Affidavit of Mr O Aikendorf (“maternal grandfather”) filed 23 November 2016;
5)Affidavit of Ms P Aikendorf (“maternal grandmother”) filed 23 November 2016;
6)Affidavit of Ms Q filed 23 November 2016;
7)Affidavit of Ms R (“Speech Pathologist”) filed 2 December 2016;
8)Affidavit of Ms S (“Occupational Therapist”) filed 4 December 2016;
9)Application in a Case filed 8 December 2016;
10)Affidavit of the mother filed 8 December 2016.
The ICL relies upon his affidavit filed 19 July 2016.
I have had the benefit of receiving case outlines from counsel for the parties’.

BACKGROUND

The parties commenced a relationship in 2006 and were married in 2010. Prior to marriage, the parties resided in a stand-alone unit at the rear of the maternal grandparents’ property at Suburb T. At the time of marriage, the parties purchased a property at U Street, Suburb V (“the former matrimonial home”). The parties had a trial separation in February 2014 for a period of four months. The parties separated on a final basis on 8 October 2014.
Throughout the relationship the father was employed on an ad hoc basis. The father commenced a Graduate Diploma 2015 and is currently employed in the public service. He is also undertaking further study in an unaligned field.
At the commencement of the relationship the mother was self-employed and operated a business. She gradually reduced her hours and as a result of the child’s needs the business ceased to operate in late 2016.
A consistent theme throughout the mother’s affidavit is her concern for the father’s mental health and the impact that it allegedly has upon his capacity to co-parent.
The father admits to suffering depression and anxiety in 2004 as a result of marijuana and alcohol consumption. Since then the father has taken medication to combat depression.
The mother contends the father downplays his mental health issues. She alleges that he is bipolar and suffers from depression as demonstrated by his unstable behaviour throughout the relationship.
The mother provides various examples of his paranoid behaviour, anger and aggression towards her. Such examples generally exhibit verbal abuse and resulted in the father locking himself in the parties’ study. The mother provides various examples of times she called the Assessment and Crisis Intervention Service, the paternal grandparents and has taken the father to hospital for support and treatment of his mental health issues. She states that, unbeknown to her, the father was taking prescription medication for schizophrenia. She also contends that he was unemployed at the commencement of their relationship and has not been able to retain a job since then due to his paranoia and associated mental health issues.
The child was born in 2013. From the birth of the child until the child was 12 months old the parties engaged in a co-parenting arrangement. At birth, the child had a dysregulated sleep pattern and each parent would take shifts with the child. The mother alleges that on one occasion when the father was on shift she awoke and the father was asleep on the couch with the child. The mother was concerned the father could have smothered the child.
The parties underwent a trial separation from February to June 2014. The mother remained in the matrimonial home and the father returned to the stand-alone unit at the rear of the maternal grandparents’ property. The father says during this time, his days were spent at the former matrimonial home assisting the mother with the care of the child. The father returned to the former matrimonial home in June 2014 but that the parties ultimately separated on 8 October 2014.
On 26 September 2014, the parties argued and the mother states she asked the father to get professional help for his mental health. The mother was concerned that the father was holding the child and jumping up and down. She alleges the child was screaming. The father placed the child in the cot and retreated into the study. The mother followed the father and the mother alleges he punched her in the abdomen repeatedly. The mother then called the maternal grandmother and the paternal grandmother. The father was subsequently charged with assaulting the mother and on 11 December 2015 he entered a plea of guilty.
Upon separation the father moved into the paternal grandparents’ home and spent time with the child upon agreement with the mother. The mother required the father’s time to be supervised.
The father’s time with the child ceased on 11 March 2015. For a period of five weeks the mother did not permit the father to see the child. He then initiated family law proceedings. From 11 April 2015 until 23 May 2015, the father spent two hours per week with the child supervised by the paternal grandparents. The father states he next spent time with the child on 23 May 2015 supervised by the maternal grandparents for a period of two hours. The father then spent time with the child at a children’s contact centre from 19 July 2015 to 28 November 2015. The father spent time with the child each Saturday from 9 am until 1 pm commencing 24 December 2015 save for times that was not mutually convenient for the parties.

In or about January 2016, the father’s time with the child was varied by agreement. The mother alleged that following the father’s time with the child, the child would not settle for a nap. The father’s time remained each alternate Saturday supervised by the paternal grandparents or the paternal uncle but was varied to provide for the mother (or the maternal grandmother) to deliver the child to the father by 9 am and for the father to return the child to the mother by 1 pm.
On 23 April 2016 there was an incident at the father’s home which involved the child playing on the front lawn with his paternal cousin. The father alleges the playtime was supervised by himself and the supervisor (the paternal uncle). The maternal grandparents allege they were driving past and saw the children playing on the front lawn with only the father in attendance. The maternal grandfather then approached the property and removed the child and a verbal argument ensued between the father and the maternal grandfather which resulted in the police being called.
From separation until the incident on 23 April 2016, the father’s time with the child was supervised by the paternal grandparents or the paternal uncle. The mother alleges the supervisors then became unsuitable as they were “unreliable”.
Following the incident, orders were made for the father to spend time with the child as supervised by psychologist, Mr C for a period of six weeks. The orders also provided for the father to familiarise himself with the child’s medical professionals and the child’s ongoing development and treatment strategies. Supervision was required from 28 May 2016 until 24 September 2016 at the paternal grandparents’ property. Mr C reported that no critical incidents occurred during the period of supervised time.

THE FATHER’S MENTAL HEALTH

Throughout these proceedings, the mother continued to make allegations relating to the father’s mental health. After inspecting several subpoena material, the mother believes that the father suffers from schizoaffective disorder, “cluster B” traits (representative of narcissistic personality disorder) and a personality disorder.
The mother is aggrieved that the father does not acknowledge his mental health difficulties.
Without admission, the father continues to visit upon his psychiatrist, Dr D on a fortnightly basis. Pursuant to orders made 31 August 2015, the father consulted with for the purpose of a private child dispute meeting. The father says his mental health was the focus of that meeting and he told Ms W that although he had mental health issues in the past he had dealt with them and was currently mentally well.
The father does not accept that his mental health in any way affects his ability to care for the child. Although his proposed orders state that he will continue to attend upon his treating medical professional.

THE CHILD’S DIAGNOSIS OF AUTISM

The child was diagnosed with autism in 2014 and since then displays ‘well-regulated’ and ‘dysregulated’ behaviour. On a well-regulated day the child will eat a routine breakfast and will be advised of the days’ activities using a “PECS board”. The mother uses the PECS board to establish predictability in the child’s routine. Monday through Thursday the child is engaged in a number of routine-based activities including children’s playgroups, occupational therapy sessions and speech therapy sessions. In the afternoon the child will have a nap (usually two hours), a walk and engage in a sensory-based activity. The child will then eat dinner and begin his bedtime routine at approximately 7 pm. On a dysregulated day the child cannot engage in activities or use the PECS board. His body will ‘shake’ and ‘lock’ and he engages in biting and crashing into objects. The child will either not sleep, or not sleep restfully on a dysregulated day. On these days the child will regress in speech development and will only be able to say 4 – 5 word sentences.
The mother manages the child’s autism through the abovementioned children’s playgroups, occupational therapy and speech therapy sessions. Not unreasonably, she is also assisted with the care of the child by the maternal grandparents who assist upon request and have assisted in the past with collecting and returning the child from visits with his father.
Pursuant to court orders, the father has taken steps to become informed of the child’s medical and occupational treatment and now, in assistance with communication from the mother, is able to engage in basis sensory activities with the child whilst the child is in his care.
The father recounts that during time he spent with the child at the paternal grandparents’ property he would feed the child, change his nappy, read to him and engage him in play and sensory development activities.
The mother recounts that from 29 January 2016 and following the father’s time with the child, the child’s behaviour would become ‘dysregulated’. The mother reports the child on these occasions would not eat food “that was not a smooth texture like custard”, would wake crying from his nap, would not tolerate visitors becoming teary and emotionally sensitive and would display no eye contact and regress in verbal skills and display ‘flapping’ and ‘verbal stimming’.
The mother reports other occasions where the child has become dysregulated following time spent with the father. On these occasions the child would bang his head, regress to non-verbal communication and ‘locking’ of the body. When the child displays these dysregulated states the mother spends time with the child in a ‘sensory room’ and engages in calming activities.

UPDATED FAMILY ASSESSMENT REPORT

A Family Assessment Report was prepared by Ms F dated 13 July 2016. Upon joint instructions of the parties provided on 30 May 2016, Ms F was engaged to conduct a further Family Assessment Report (“the updated report”).
For the purposes of preparing the updated report, the report writer interviewed the mother and the father and observed each party interacting with the child. The report writer also interviewed the child’s speech therapist, Ms R and his occupational therapist, Ms S.
The report writer surmised the parties’ interaction with the child and recorded the mother as being more comfortable with therapeutic tools but also rigid in her approach of “what is safe and appropriate” for the child. To this extent, the mother was observed as being controlling of the father (regardless of her intent). It was recommended that the father would benefit from being more involved with the child’s treating professionals who could provide independent feedback about the child’s presentation and progress.
The father’s mental health was a contentious topic in the interviews. The mother believes the father is “untruthful” about his mental health and as such a risk to the child. The father does not consider it necessary to see a psychiatrist but will continue doing so if it builds confidence in the mother’s opinion of his parenting abilities.
The following recommendations were made:-
1)That the father meet with the child’s paediatrician, speech therapist and occupational therapist and learn how best to support the child;
2)That Mr C continue to supervise the father’s time with the child at the paternal grandparents home and to provide his observations to both parties;
3)That the parties attend upon Ms G (co-parent counsellor) to maximise use of the communication book;
4)The parties should discuss significant changes relating to the child before they are introduced;
5)If the child’s development is progressing well then the requirement for supervision should be lifted;

CHRONOLOGY

1983

Father is born

1985

Mother is born

2002

Mother diagnosed with depression and anxiety

2003

Mother starts business

Prior to 2004

Father suffers anxiety and depression

2004 – 2005

Mother alleges father had “severe psychiatric breakdown” and subsequently developed Bipolar Disorder and Paranoia

September 2004

Father first attends upon Dr D and subsequently attends on a monthly basis

August 2006

Parties commence a relationship

February 2007

Mother alleges father became “cocky” at a birthday party and subsequently was driving erratically

October 2007

Parties commence living together

2008

Father obtains employment but was unable to maintain work commitments

March 2008

Father alleges parties argued over the state of the house and mother threatened to commit suicide

2009 – February 2010

Parties reside in a stand-alone unit at the rear of maternal grandparents’ property

26 January 2009

Mother alleges father had an episode of paranoia becoming angry and pushing the mother. Maternal and paternal grandparents were called

April 2009

Father commences employment at maternal grandfather’s company

February 2010

Parties purchase the former matrimonial home

Mid 2010

Parties are married

March 2011

Father alleges parties argued and he was concerned mother might self-harm

1 January 2013

Father leaves employment as company became insolvent

March 2013

Mother alleges father was driving erratically to a family barbecue

August 2013

Mother alleges father pushed her “neck and collarbone” whilst driving following an argument

September 2013

Mother alleges father went missing for several days

September 2013

Father says he stopped seeing Dr D at mother’s request

Late 2013

Child is born

December 2013

Mother alleges an argument where father locked himself in the study

December 2013 – March 2014

Father alleges he ceased working to care for the child

Early 2014

Child is diagnosed with pelvic kidney (kidney has not risen to the abdomen)

20 January 2014

Mother alleges father punched the child’s mattress when the child was sleeping. Mother called the police.

24 January 2014

Father attends X Hospital

February 2014 – June 2014

Period of trial separation

26 September 2014

Mother alleges parties had an argument where the mother asked the father to re-commence seeing his psychiatrist. Father punched mother in the abdomen repeatedly

8 October 2014

Parties separate

Post-separation

Mother discovers father’s medication which is prescribed for schizophrenia

8 October 2014 – 11 March 2015

Father spends supervised time with child 2 – 3 times per week for a period of 4 – 8 hours as agreed between the parties

January 2015

Father recommences seeing Dr D fortnightly

18 February 2015

Mother alleges paternal grandmother was asleep whilst “supervising” the father’s time with the child

11 March 2015 – 10 April 2015

Father did not spend time with the child.

11 April 2015 – 23 May 2015

Father alleges mother only permitted him to spend a period of 2 hours with the child per week

24 May 2015 – 18 July 2015

Father alleges the mother did not permit him to spend time with the child

19 July 2015 – 28 November 2015

Father spends time with the child at children’s contact centre

9 September 2015

Private child dispute meeting report prepared

11 December 2015

Father enters a plea of guilty in regard to assaulting the mother on 26 September 2014

24 December 2015 – 23 April 2016

Father spent supervised time with child pursuant to court orders of 4 hours per week. Mother alleges the child displays dysregulated behaviour following time with father

February 2016 – March 2016

Father attends upon various courses to become informed of child’s diagnosis

February 2016 – April 2016

Parties attend co-parenting counselling with Ms G

2 February 2016

Child diagnosed with sensory processing disorder by an occupational therapist

12 February 2016

Child diagnosed with receptive language delay by a speech therapist

26 February 2016

Father commences employment

23 April 2016

Mother alleges father’s time with child was not being supervised by paternal brother (“the incident”)

30 April 2016 – 21 May 2016

Father did not spend time with child following the incident

28 May 2016 – 8 October 2016

Father spends 2 -3 hours per visit with child supervised by Mr C

23 August 2016

Father completes the “Kids are First” parenting program

15 October 2016

Father’s time with child increases to 7 hours per visit each Saturday

22 October 2016 – 19 November 2016

Mother alleges the child became dysregulated following time with father

26 October 2016

Child diagnosed with autism by paediatrician

31 October 2016

Child diagnosed by paediatrician with thalassaemia minor (smaller than normal blood cells)

PROPOSALS OF THE PARTIES

As set out in his Case Outline document, the father now agrees to orders 3, 10, 11, 13, 14, 15, 18, 19, 20 and 21 of the mother’s Further Amended Response.
The parties remain in dispute as to the following matters:-
1)Parental responsibility;
2)The time that the child is to spend with the father without any progression to overnight time;
3)Whether a member of the father’s family should be generally present when the father spends time with the child;
4)The extent to which there should be a further family assessment and ongoing involvement by a child psychologist;
5)Whether the father is able to drive with the child in the car;
6)Whether the father is able to attend school events without the mother’s consent;
7)The extent to which the father should be obliged by order to take medication as may be prescribed;
8)The obligation on the father to inform the mother as to the requirement of psychiatric care or medication changes.
The Independent Children’s Lawyer (“ICL”) supports the mother’s order that she have sole parental responsibility for the child providing she is obliged to consult with the father in a genuine effort to reach a joint position.
The ICL is supportive of a progression to overnight time with the father as and from the child’s fifth birthday.

EVIDENCE

The proceedings were conducted pursuant to the provisions of s 69ZN(1) of the Family Law Act 1975 (Cth) (“the Act”) and in determining and giving effect to the principles as set out therein I advised the parties of the general duties and powers as set out in s 69ZQ and the ability that I have to make determinations, findings and an order at any stage of the proceedings if it will assist in the better management of the trial pursuant to s 69ZR. The parties were both represented by experienced counsel and the Court was assisted by the involvement of an ICL.
Each of the parties filed objections to evidence, but I was not asked to deal with the objections individually but rather, to have regard to the matters raised in those documents when considering the evidence.
I considered that I should not dispense with the provisions of s 69ZT and accordingly the parts of the Evidence Act 1995 (Cth) (“the Evidence Act”) as set out in the section were not the subject of application.
In making that determination I considered the following matters:-
1)The importance of the evidence in the proceedings;
2)The nature of the subject matter of the proceedings;
3)The probative value of the evidence;
4)The power of the Court (if any) to adjourn the hearing, to make another order or to give directions in relation to the evidence.
Notwithstanding that evidence may be received which in the ordinary course would otherwise be inadmissible, I explained to the parties that it is a matter of weight that I may give to the evidence rather than its exclusion, either in terms of the application of any part or portion of the Evidence Act or pursuant to Rule 15.13 of the Family Law Rules (2004) (Cth) (“the Rules”) whereby I am entitled, irrespective of the provisions of s 69ZT to strike out evidence if I consider it to be scandalous, irrelevant and unnecessary.
I reminded the parties of s 69ZV which relates to my ability to hear the evidence of children in matters which would ordinarily contravene the rules of hearsay and importantly s 69ZX which relates to my ability to truncate, limit and manage what might be described as the routine aspects of the trial.

The father

The father relied upon his Trial Affidavit filed 28 September 2016 and his Reply of 7 December 2016.
In examination in chief the father confirmed that he last saw Dr D (“the psychiatrist”) on 6 December 2016.
The father continues to reside in a property owned by his parents. At some stage he intends to pay rent, but he was not able to do so for the first few months. His current child support was at a minimal level consistent with his part-time employment.
At the date of his evidence, the father had not taken the child to his home, but rather, his time was spent at the home of the paternal grandparents. The child’s toys and personal possessions remain at his parent’s home.
There was a clear focus on the father’s history of mental health. He accepts that he suffered with mental health issues prior to 2004 and related to his drug use. He commenced consulting with his psychiatrist Dr D in 2004 and sought treatment for depression and anxiety. Since that date he has had regular psychiatric monitoring and takes prescribed medication as a treatment for depression.
He accepts that he had experienced psychotic episodes in 2004 and on 24 January 2014 he attended the X Hospital following an argument with the mother. He admits that he was anxious and depressed and caused damage to a door in the home. The police were called and the mother’s report was that the father had threatened to commit suicide. Whilst he initially agreed that he did have suicidal ideation, he now considers that it was more to do with relationship conflict.
The mother is concerned that the father is not properly managing his mental health issues. She considers that unless there is proper monitoring and ongoing assessment and treatment, the father presents a risk to the child particularly where she considers there is evidence of him driving erratically.
The mother’s concern is heightened by what she considers is the father’s propensity to minimise his history of mental illness and the potential for it to impact upon the father’s ability to care for the child.
The parties attended a “private child dispute meeting” from which a report was prepared on 9 September 2015. The mother provided a history to the report writer, Ms W consistent with her view that the father “was paranoid, highly emotive, unpredictable, aggressive and demanding towards her and the child”. She considered that the father lacked insight into his mental health and minimised the impact of his behaviour. The report writer recorded the following:-
22.[The father] provided an inconsistent and confusing account of his mental health history that was inconsistent with Affidavit material. The [report writer] provided him with a number of opportunities to acknowledge that he entered the relationship with [the mother] with an established history of poor mental health as evidenced by his Affidavit material. He denied this to be the case and attributed sole blame to [the mother] for episodes of acute unstable mental health in the relationship. Since separation his mental health is once again stable.
23.He acknowledged one drug induced psychotic episode as an adolescent only. He obtained treatment and support from the same psychiatrist for approximately 10 years, but argued that he was never diagnosed with a mental illness. He attributed his difficult childhood and subsequent dysfunctional relationship with his parents as the cause of past depression, but this has since been resolved. He argued this was supported by multiple psychiatric evaluations, annexed in his Affidavit material. He has no doubt that the Court Ordered psychiatric assessment by Dr H will provide the same result.

It was put to the father that when speaking with the report writer he tried to minimise the impact of his mental health issues. The father was not prepared to concede that the report should be read in that way, but did admit that he had brief psychotic episodes whilst with the mother. He was prepared to accept that he suffered from depression and in 2008 discussed an earlier paranoid episode with his psychiatrist.
The issues that related to the breakdown of the relationship with the mother were not confined to his mental health, but that there were other factors that adversely affected the parties’ relationship.
Notwithstanding the context in which the father describes his mental health history, there is little doubt that from an early time and certainly at the date of the commencement of the relationship, there were periods where the father was unwell and his ability to engage in normal day to day activities was compromised.
The father acknowledged that his psychiatric consultations were of significant benefit.
Annexure “TJP3” to the father’s trial affidavit provides the intake details for the father’s attendance at hospital on 24 January 2014. It records some history of the father’s attendance upon his psychiatrist and a possible diagnosis of Borderline Personality Disorder.
The document records the father’s clear statement to the attending registrar that he did not wish to end his life but considered thoughts of “self-harm” signified that he wanted to end the relationship with the mother but was uncertain as to how that could be done. His mental state examination at the time was as follows:-
Young man, of short stature and medium build; sitting alongside wife, arms crossed, avoidant of eye contact. Seemingly angry/exasperated. Normal rate and tone of speech. No preoccupation with thoughts of self-harm or harm to others. No pervasive depressive symptoms. No delusional material elicited. No overt paranoia or focus on any particular people/groups. More focussed on relationship issues and his reaction to this. Affect irritable. Mood euthymic.
No perceptual disturbance.
Fair insight and judgment.
There were no grounds for involuntary admission and it was suggested that each of the parties should liaise with their health professionals and attend relationship counselling.
At paragraph 157 of her trial affidavit, the mother sets out her recollection of a driving incident that occurred in March 2013 whilst the parties were travelling to visit the father’s family. The mother was about eight weeks pregnant at the time. It was her observation that the father was driving erratically and had engaged in aggressive driving. The mother expressed her fear at his conduct and was anxious and upset.
The father remembered the episode and said that the parties had argued over the father’s driving. He did remember revving the engine loudly and conceded that there was also discussion about a cubbyhouse that might later be purchased.
To the extent that the father’s version of events appears to minimise his poor conduct, I prefer the mother’s evidence of the incident.
He denied that he had ever assaulted the mother, in particular in relation to her allegation that in August 2013 he had pushed the mother into the side of a car.
He did agree that from time to time he would drink alcohol to excess and during an argument in 2013 he left the home without advising the mother of his whereabouts.
At times he was angry at the mother, but denied any real intention to commit suicide notwithstanding some period of suicidal ideation.
Following the birth of the child it appears that the difficulties between the parties worsened. The parties argued about care arrangements. The mother alleges that the father wanted to place the child on a pillow to sleep and when he was told that the SIDS guidelines said it was unsafe for babies to sleep on a very soft surface, she alleges that the father started to yell and scream and he behaved aggressively. The father admitted the argument, but his recollection was that after he was shown the guidelines he then readily agreed.
The father agrees that there were serious arguments with the mother, but denied that he behaved aggressively towards her or that he would cry uncontrollably and collapse to the floor.
He did agree that on 20 January 2014 he had been feeling unwell and following an argument with the mother he locked himself in the study. The mother called the police and an ambulance because of her concerns that the father may harm himself. She also called the paternal grandparents. The father sought to minimise the incident and his overall assessment is that he was not as well as he would have liked to be but that he was not experiencing any psychiatric episode and did not present as a risk to himself, the mother and in particular the child.
Following the birth of the child and an increase in the party’s arguing, the father’s behaviour was such that the mother was concerned to leave the child alone with him. She was also concerned at the state of the father’s personal hygiene and she alleges that the state of his study was disgusting. The room smelt of urine and cat faeces.
The father does not agree with the mother’s assessment. He concedes that the parties argued on 26 September 2014 and that the topic of the argument emanated from a request by the mother that he seek some professional assistance.
It was put to him that he became upset and began to yell and scream. The mother alleges that he held her against a bookshelf and proceeded to punch her in the abdomen near the area of her liver. The father was charged with assault and he pleaded guilty.
The father’s work history was explored and he conceded that he had been largely unemployed for the period between 2014 and 2016. He had worked up until September 2014 and then started a graduate diploma which was completed in 2015. The father had a placement but did not complete it. He agreed that he struggled with elements of the job.
In August 2015 he passed a regional placement and the experience was sufficiently positive that he has now applied for another. As at the date of his evidence he had received a favourable response from two employers.
He also had employment potential with a company to train as a manager in the service industry.
The father conceded that he has not been able to maintain good communication with the mother, but considers that of late there has been some improvement in the communication. It is still poor but he hopes that it will improve as time passes.
The father agreed that the child’s behaviour was difficult and at times confronting. There was a fundamental difference in the approach to the child’s management by the parties; the mother would provide vast quantities of information which I find at times overwhelmed the father.
It was contended by the father that the mother would not provide appropriate authorities for him to obtain information from the child’s health professionals and in particular regard to the child’s speech pathologist. The father conceded that the mother had provided him with contact details. Exhibit “1” in the proceedings is email communication from the father to the speech pathologist dated 29 April 2016.
The correspondence reflects the father’s observations of the child’s behaviour in the following terms:-
I also can see a fair amount of internal stimulation in [the child’s] behaviour. I have also witnessed 1 event where [the child] became unable to process his excitement about a chasing game. During this moment [the child] squealing noises and echolalia became evident to a point where he became completely uncertain about his motivation. He basically froze and got a bit distressed. At this point I removed [the child] from the situation and had 1 on 1 time with him for a few minutes until he returned to his normal calm state.
I am unsure of what types of 1 on 1 and group activities I can organise where [the child] will have a chance to develop his ability to emotionally regulate. As I wrote above, I have seen [the child] have a ‘melt down’ moment and I also regularly see he will momentarily flap his arms, rock forward and backwards (while sitting) or pace while he is participating in solo play and with play with others too before soon refocussing again. Can you advise me on how important it is to limit this momentary internal stimulating behaviour? I only ask because if I stopped [the child] from his activity when I see this behaviour and move him to something else, I would have to do dozens of times during the 4 hours we spend together.
The mother sets out in her affidavit the management arrangements for the child in her home. In particular she utilises a PECS board which is intended to provide the child with stability and routine.
The father did not implement the PECS board until May 2016.
A significant issue in the proceedings has been the extent to which the child becomes “deregulated”, the cause, how that may be managed and how the distressing behaviour may be ameliorated.
The mother considers that the child is at a greater risk of dysregulation following spending extended time with the father. The dysregulation inhibits the child’s development and is counter-productive in terms of any advances in the child’s development that arise from the specialised therapies that are implemented.
A significant issue has been the extent to which the father recognises the importance of tailoring how the child spends time with the father in order to minimise the risk of dysregulation.
The suggestion in the father’s evidence is that he does not accept that priority must be given to the child’s presentation and the need to reduce and limit the circumstances which can cause the dysregulation in the child. Whatever the disagreement may have been leading up to the proceedings, the father impressed that he is now focussed on his son’s management, but considers that the mother gives him little or no credit and seeks to minimise his involvement with the child. He also accepts that the child’s presentation could not be explained by any other cause other than autism.
It is likely that the mother is more adept and invested with the care of the child and in particular the application of various calming techniques. The father’s evidence is that he is now more observant as to the child’s behaviour and is alert to any of the warning signs that suggest a dysregulated state is imminent.
The parties remain unable to reach common ground on communication. The mother seeks substantial information from the father in respect of his observations and interaction with the child. He considers that he provides enough information but that it is not at the level as required by the mother. Email exchange between the parties remains difficult.
The evidence does not support a finding that the father deliberately withholds information but rather, it is more likely to be a reflection of the mother’s hypervigilance but also the more extensive time that she spends with the child and her ability to be more attuned to his needs.
At the time of the father’s evidence he was seeing the child over an extended period and unsupervised. The thrust of his cross examination emanates from the mother’s view that the child’s increasing dysregulation was linked to the increase in time, in particular the mother considers it important for the child to have the advantage of an afternoon sleep. The evidence suggests that the mother is more able to promote the child sleeping in the afternoon than is the father. Whilst it may appear simplistic, a significant factor in the child’s propensity to exhibit dysregulated behaviour may be linked to him being “over stimulated” whilst with the father.
The father considers that the child is now doing better in his care, but it should be noted that by order made 20 December 2016, the father’s time pursuant to paragraph 7(b) of orders made 19 August 2016 was suspended and that the child spend time with the father each Tuesday and Saturday from 9 am to 1 pm.
The mother had made video recordings evidencing the child becoming dysregulated. The father considered the video footage and agreed that his son’s behaviour was distressing to observe, but was not prepared to accept that the child’s regression is inevitably linked to the duration of time that he spends with the father.

Ms M Pilau

Ms M Pilau is the father’s mother. She is a registered health professional and has considerable experience with children suffering developmental delay and sensory deprivation.
She relies on her affidavits filed 27 September 2016 and 7 December 2016.
Her affidavit was essentially unchallenged and she was prepared to concede some of the observations of the mother of the father’s behaviour becoming florid and aggressive. The paternal grandmother was an impressive witness. She was highly motivated to assist the parties. She and her husband would remain in regular contact with the parties. After the parties separated she would assist her son in supervising his time with the child. I accept her observations. Notwithstanding that she is clearly kindly disposed towards her son, I do not consider that she was in any way biased or was prepared to compromise the interests and the safety of the child simply because of her relationship with her son.
I accept her observations that the father “is primarily very warm and loving towards his son and attentive to his needs”.
The paternal grandmother corroborates the father’s evidence that he now uses a PECS board and that it is presented to the child upon his arrival.
The evidence of the paternal grandmother was such that her continued involvement with the child is of significant benefit.

Mr J Pilau

The uncle was not called and his affidavit filed 27 September 2016 was read into the evidence.

Mr K Pilau

The evidence of the paternal grandfather is contained in his affidavits filed 27 September 2016 and 7 December 2016. He holds the qualification of a senior consultant psychiatrist and a senior lecturer in human behaviour and health research. He specialises in the treatment of patients suffering from medical illness and mental health issues.
Consistent with the evidence of the paternal grandmother, he rendered substantial assistance to the parties during the course of the relationship, but in particular following the birth of the child.
The paternal grandfather was frank as to his observations of the father’s behaviour when he was mentally unwell. He corroborated that the father had experienced drug related or induced psychosis and that for a period of time he suffered from paranoia.
Whilst there have been some adverse observations of late, generally his evidence was that his son had been well for many years.
He had positive observations of the interaction between the father and the child and had seen the manner in which the father had reacted to the child becoming distressed by hugging him, reassuring him and ultimately being able to settle him down.
The paternal grandfather also provided detail in respect of the incident of 23 April 2016 being the occasion of the mother’s parents attending at the home of the paternal grandparents and removed the child from the father’s care.
The witness was impressive, balanced in his evidence and understanding of his son’s history of mental illness. In similar terms to the role of the maternal grandmother, I consider that any involvement of the paternal grandfather is likely to benefit the child.

Dr L - psychiatrist

The father’s psychiatrist has prepared a number of reports annexed to his affidavit filed 27 September 2016. There was no challenge to the psychiatrist’s qualifications.
He confirmed that he first reviewed the father in September 2004 following a referral from the father’s general practitioner. He noted that the father presented with depressive and paranoid ideation and treated him from 2004 to the present. His first report dated 10 June 2015 refers to the father feeling sad and depressed following the separation from the mother on 8 October 2014 but that “he became less self-critical, his sadness resolved and his mood was settled until April 2014. However he had remained frustrated about [the mother’s] wish to control the situation” with his son and to insist on supervised contact.
In April 2015 the father presented with feelings of depression but with no suicidal thoughts, delusions of reference or psychotic ideation.
He appeared to have good insight and seemed to cope well with the increase in prescribed medication.
The early psychiatric history of the father is as discussed. The father was 21 years of age when he was first reviewed by the psychiatrist in September 2004:-
He had used marijuana and other drugs from aged 15 and engaged in occasional binge drinking. Amphetamines often left him paranoid and may have been involved at the time he fell out of a car…in October 2004.
It seems that his relationship with the mother was highly conflicted and associated with guilt and self-criticism.
The diagnosis at the time was of schizoaffective disorder in remission with no current psychotic ideation along with adjustment disorder with mixed emotional features on a background of self-critical and potentially avoidant personality traits.
The father suffers from poor self-esteem and is highly self-critical of what he perceives as his own inadequacies with associated guilt in respect of the fear of “letting people down”.
The psychiatrist did not consider that there were any mental health issues that would affect the father’s ability to care for the child on an unsupervised basis.
A second report was prepared and dated 3 June 2016. The psychiatrist was informed that the father had pleaded guilty to a charge of aggravated assault occurring in the first two weeks of December 2015. No conviction was recorded and the father was placed on a good behaviour bond. At the time of further assessment he was involved in work which involved contact with children. There was no suggestion that he should be supervised or that he was not able to manage.
The resolution of the assault proceedings enabled the father to receive professional registration.
The father reported the events of Saturday 23 April 2016. The importance of the explanation is not in respect of the accuracy of the retelling of events, but that the incident was highly stressful and it was important to the psychiatrist that the father’s reaction was moderate and not the catalyst for any anti-social behaviour or psychotic episode.
The ongoing treatment consisted of the psychiatrist assisting the father in negotiating stressful events and different circumstances. The observation was that the father “handled a series of very stressful events with no indication of any deterioration in his mood suggestive of a relapse of mental disorder, or any indication of substance abuse”.
As at the date of the assessment the psychiatrist was not aware of any mental health issues which would highlight a potential risk to the child whilst in the father’s care.
It was put to the psychiatrist that the reliability of his assessment is entirely based upon the accuracy of the history as provided by the patient, in this case the father.
The psychiatrist commented that his assessment is not simply based on what he is told, but also what he observes and the demeanour and presentation of a patient.
He considered that the nature of psychotic episodes are such that it is hard to mask symptoms if a party was indeed experiencing a psychotic crisis.
It might also be of assistance to obtain a history from those that associate with the father, in this case the mother, but potentially the father’s parents who both have the obvious ability to make clinical observations.
The psychiatrist conceded that at times whilst his presentation was of abject sadness and there were some biological features to the father’s presentation, generally there were no indications of psychiatric deterioration since 2015.

The psychiatrist did not disagree that the mother’s allegation of poor driving in March 2013 was a matter to more carefully consider, but he doubted that it would indicate paranoid thought. A common theme in the observations of the psychiatrist was the inter-relationship between the father’s ongoing depression and at times unexpected and worrying behaviour and the ongoing stress of the conflict of the relationship with the mother.
The psychiatrist conceded that from time to time there were “flickers” of paranoia, but they were able to be readily managed by the father and an important aspect of the father’s current presentation is the extent of his insight into his mental health issues.
Irrespective of the shadow that the mother seeks to cast over the father’s recent employment history, an important indicator of mental health stability is the father’s ability to complete his diploma and undertake four placements; two successful and two unsuccessful.
Whilst schizoaffective disorder in remission is a possible diagnosis, it could be extreme sadness and situational stress.
An ongoing concern for the father was that he thought the mother would rarely make concessions in terms of the relationship and that she was readily prepared to refer to the father’s early mental health history as a basis for restricting the relationship between the father and the child.
The psychiatrist’s prognosis for the father was positive. He was significantly more mature now and was able to be appropriately assertive. He may have personality issues but that he appears well motivated.
Overall, whilst the father has been under very significant stress, he has not shown any deterioration in his mental health.

The mother

The mother relies upon her trial affidavit filed 28 November 2016.
The mother produced video footage of the child’s time with her following the seven hour unsupervised visits with the father. The mother was clearly distressed when she observed the vision and described the areas of concern namely, that the child’s body locked and leg locked. In terms of the child’s behaviour and level of dysregulation she considered that his behaviour was either at level 2 or the most serious being level 3.
She observed and highlighted that the child moves his hands in an erratic fashion and flicks his fingers.
The child was also screaming and it was the mother’s evidence that she had never observed the child in that level of distress.
A method by which the mother was able to calm the child was to squeeze the child’s head. The idea was to apply deep sensory pressure. Eventually his behaviour moderates, the child appeared to calm down and he stops behaving in a dysregulated fashion.
The child’s deregulated behaviour can take different forms and can be more or less severe depending upon his activity. The television displaying his favourite television show seems to have a calming influence.
The video footage of 19 November 2016 was particularly severe. The mother’s evidence was that the child was having a level 3 meltdown. He did not want to be touched and was kicking out his leg in order to stop the mother touching him. The behaviour appeared to continue for the entire videoed period. At 11 pm and in an attempt to break the cycle, the mother placed the child in a bath and he appeared to be biting his arm which is also a sign of dysregulation.
On 3 December 2016, the child was in the car and was observed to be repeatedly requesting his “nanna”. The mother’s evidence was that because she had buckled him in the car seat and not his nanna, this was a source of stress and a catalyst for dysregulated behaviour.
Following the evidence of Dr D, leave was given for the mother to give further evidence in chief.
The mother agrees that she had attended upon the father’s psychiatrist and provided some history. The mother considered that the interaction with the psychiatrist was more like a counselling session rather than a therapeutic process involving the father.
The mother agreed that she had not seen the father and the child together. She was prepared to concede that there was a close and loving relationship, but that she hoped the father would recognise the needs of the child over his own. She considered that in January 2016 the child could only cope with one on one visits and the involvement of too many other children would only over-stimulate the child.
She also sought more information from the father than he was apparently prepared or able to give and some of the communication from the mother to the father could be considered proscriptive in terms of what she considered the child should or should not do whilst in the father’s care.
The mother denied that she wanted to know the identity of any other persons present; simply she wanted to restrict the number of people who engaged with the child.
As an indication as to the extent of information provided by the mother, an entry of 20 February 2016 in response to advice by the father in the communication book that the child’s cousins had visited and that he had wanted to join in, prompted a five page response.
The conflict between the parties is the father’s assertion that when the child is with him their time is happy and he does not suffer from adverse behaviour, over stimulated conduct or that he is dysregulated. The mother’s response is that whatever happens at the father’s home, when the child returns to her he is dysregulated and she then has to invest significant time and effort to stabilise him.
At the outset of her cross examination, the mother conceded that in 118 pages of her trial affidavit not one positive sentiment is expressed about the father and his relationship with the child.
When pressed, the mother agreed that the father can be a positive person in the child’s life and when well he is a shy and retiring man rather than a person exhibiting overt aggression.
The mother understood that at the commencement of the proceedings the father had conceded that the child should live with her with the implication that she should be the primary carer, but she was not content whilst the father continued to seek orders which she did not consider would benefit the child.
She was adamant that the father should not consume alcohol during any period that the child is with him. She acknowledged that any request by the father for additional time such as on the father’s birthday in 2016 was refused.
The mother was asked to consider a letter from her solicitor to the father’s solicitors dated 12 January 2016 and being annexure “TJP17” to the father’s trial affidavit. It appears that the father wanted to rearrange his time with the child to enable him to complete a first aid course as part of his employment.
There then followed two pages of correspondence exploring the following issues:-
1)What course the father was required to complete and for what purpose;
2)Why he could not undertake any of the courses which the mother sourced;
3)What course he did complete on 9 January 2016;
4)Why the father did not advise the mother earlier of his request given that he had known about the date for some months.
The mother did not resile from the contents of the letter, but rather explained that she considered the father was disorganised and that the disruption to the routine was made more difficult by the child having a broken sleep pattern.
The mother’s evidence indicated a high degree of inflexibility not necessarily justified by the child’s needs.
Her focus was on the routine and how important it was for the child.
The issues of routine were benchmarked by the use of the PECS board, the number of visitors that are present and ensuring that the child has appropriate sleep time.
The mother was keen for the communication book to continue and conceded that the father’s agreement to continue to attend upon his psychiatrist was a concession on his part.
The mother accepted that other people might see and understand the child’s presentation, namely therapists, grandparents and friends. Certainly when the child attends more formal school education he will be confronted with a vast array of unfamiliar people and unplanned experiences.
Whilst the father saw the child in the mother’s home for the first year, she wanted to continue the parenting agreement which was that the child spent time with the father each Wednesday from 4 pm to 8 pm and each Saturday from 8.30 am to 4 pm. The parties attended mediation and the father wanted to spend unsupervised time with the child. The father alleges that the mother then ceased time with the child in early March 2015 and he was not then able to see the child for a period of five weeks.
Subsequently the mother agreed that time was reinstated for a period of two hours each week supervised by one of her parents.
Notwithstanding that there were observational reports of the child interacting positively with the father, the mother determined to stop time because of her concerns about the father’s poor mental health. The father obtained a report from his psychiatrist of 1 June 2015. The report was positive and there was no suggestion in the report that he was unable to care for the child. The mother’s position is that the father will inevitably have a further relapse. She was not able to explain why a deterioration in the father’s mental health was “inevitable”.
It was put to the mother that she was meddling unnecessarily into the father’s activities with the child, in particular as to the number of people that might be in the father’s home. The mother’s response was that she was “just a mum batting for her child”.
The gravamen of the mother’s concerns was not that she now believes that the father could not managed the child, but that when he returns from the father’s care he is dysregulated. The conditions that she places on the father’s time is to explore all avenues so that the child can transition between the parties with as little disruption as possible.
The mother agreed that the child is likely to experience a good time in the father’s home. References made by the child to the mother and then recorded in the communication book would support the notion.
A concern was expressed by the father that the child may well be isolated and would benefit from contact with other children. The mother was not sure if the child had any upcoming play dates, but said that the child had been introduced to “Ready, Steady Go Kids” but could not cope and did not attend further sessions.
The mother permitted the maternal grandmother to be in direct communication with the father. The extent of the communication and the content was with her knowledge and her permission.
The affidavit of the maternal grandmother filed 6 May 2016 was put to the mother in terms of the text message communication passing between her and the father commencing on 2 April 2016. The tenor of the messages is one of increasing hostility and appears only to have added to the mistrust between the parties. The message of the maternal grandmother on 20 April 2016 is informative:-
Dear [Mr Pilau], I am really concerned that after doing all these workshops at Autism SA that you still do not understand about triggers, and how certain things can trigger behaviour in children with ASD and SPD. Children with these disorders require stability, routine and consistency with their environment in order to be regulated and happy. This stability, routine and consistency needs to be identical between my house and your parent’s house for [the child] to be well regulated. The child responds very well to consistency. A trigger can send [the child] into a horrible patterns for days. I am disappointed you will not work with me to try and eliminate any trigger that may be occurring at your parent’s house. It could be something as simple as a certain smell, a light, an electric gadget or button he wants pressed on a device that could be a trigger. This has nothing to do with micro management, and everything to do with what is best for [the child]. We need to remove our own personal feelings from the subject and just act in [the child’s] best interests. Working together on this is very important. Our communication about [the child] and his disability is important and needn’t be done through third parties all the time. I am also concerned that after [the child] showed distress and self-harm of squeezing his head you felt no need to tell me. There is absolutely no mention of this in communication book. You simply said it was ‘another wonderful visit’ I am very worried about this as there were aspects of visit that were not wonderful. Please answer my questions. Your cooperation in this matter would be appreciated as it is essential to [the child’s] welfare that the problem is solved. Thanks.
Whilst the mother conceded that the maternal grandparents held strong and uniform views as to the need for consistency and stability, she was not able to recognise that the involvement of her parents and in particular in terms of direct communication with the father was clearly unhelpful.
The mother was asked to recollect the circumstances surrounding the incident on 23 April 2016.
On 23 April 2016 the child was delivered to the home of the paternal grandparents by the mother pursuant to the order. Shortly thereafter, the maternal grandmother received a telephone call from her brother advising that he had seen the father at the front of the property with the child, unsupervised. A meeting occurred at the mother’s home and it was determined that the maternal grandparents would attend at the paternal grandparent’s home and enquire about the supervision. She did not ask her parents to do anything else other than to ask if there was a supervisor and then to sight the supervisor. If not, it was the mother’s evidence that they were authorised to do nothing more than to call her. There was no agreement that the child would be collected or removed.
The mother was asked why she did not simply make a phone call to check whether a supervisor was appropriately in place given the apparent observations of the witness.
The mother’s response was that the father might become aggressive over the phone and become angry. She was uncertain as to his response and it was put to her that her actions caused her parents to turn up unexpectedly and unannounced. The justification for the mother’s instructions to her parents and their subsequent action was necessary in order to protect the child.
When asked to consider the affidavit of the maternal grandparents, the mother agreed that the contents were misleading if it reflected a joint decision rather than a unilateral decision. The relevant issue however was that there were observations by the maternal grandmother that the father was in the company of his brother who was intended to be the supervisor. The supervisor was clearly present and the incident could have been avoided with better communication rather than pre-emptive action.
The evidence supports a finding that the mother and her parents acted without any regard for the father, the orders that he had or the interests of the child in disrupting the child’s time with the father and then resulting in a significant suspension of time thereafter.
The conduct of the maternal grandparents in their unilateral action of removing the child from the father’s care was exactly the unpredictable conduct that had been the subject of complaint by the maternal grandmother in her text message of 20 April 2016.
The child had been removed from a structured and predictable environment with the risk that he may well become dysregulated thereafter.
The father recommenced his time with the child on 28 May 2016 under the supervision of Mr C (“the supervisor”). The mother agreed that the visits went well and the first occasion lasted for about two hours. The report of Mr C suggests that the visits of 4 and 11 June 2016 went well without any observation of dysregulated behaviour. Contrary to the observations of the supervisor, paragraph 250 of the mother’s trial affidavit records:-
…[The child] displayed some dysregulated behaviour on the Saturday afternoon [11 June 2016]. His dysregulated behaviour included [the child] locking out and squeezing his body tight during the course of the day. He also started screaming and biting a cushion on Saturday afternoon. He was running around the house verbally “stimming” (making sounds). He did not appear distressed but was unable to play or participate in activities…
His dysregulated behaviour continued on Sunday 12 June 2016 but he was able to be re-regulated by the afternoon.
It was put to the mother that the child’s propensity for dysregulated behaviour may be caused by the very fact of the transition between the households rather than any activity undertaken by the father which might cause the child to be overstimulated.
The mother conceded that the role of Mr C was as a supervisor and observer but not a facilitator. He only observed and recorded the effects and the consequences of the father’s interaction with the child. If the child was stable and settled then it was a feature of the father’s conduct and management of the child rather than Mr C. The mother was not prepared to make a concession that Mr C brought nothing to the process in terms of any expertise or experience other than to supervise and report.
The mother was asked to comment on the father’s evidence that up until October 2016 when Mr C ceased his involvement the child managed the travelling and in particular the return trip to the mother’s residence. The father was able to divert the child’s attention whilst in the car as distinct from the mother’s evidence of level 1 or 2 dysregulated behaviour being apparent.
The mother acknowledged that she was currently receiving medication for panic attacks and an anxiety disorder. She was asked to contemplate whether the reason the child might be dysregulated is because the child is picking up on the mother’s anxiety and her display of emotion. The mother disagreed with that assertion and reported that the child had said “Daddy is scary”.
The mother maintained her criticism of the father in terms of his current involvement and in particular what she perceived to be his reluctance in the use of the communication book. She considered that the detailed nature of her entries were not matched by the father and that his entries were becoming less informative. The mother refused to accept that there was improvement in the child’s routine and behaviour. She did agree that nobody, including the therapists, knew with precision what triggers the child’s dysregulation. She did not accept the proposition that the overwhelming majority of handovers that have been affected by the father, his family and the maternal grandparents were without incident. The implication is that when the mother was present there is potentially a problem with the child’s behaviour.
It could be as simple as the child reacting to his obvious familiarity with his primary carer.
The mother remains mistrustful. She does not accept that the absence of any relevant driving offences is sufficient evidence that the father does not pose a risk to the child. She also accepts that at present he clearly has good mental health, but her concern is the risk presented to the child if his health deteriorates. She does not consider that he has been frank with his psychiatrist and denied that the allegations of domestic violence were exaggerated or untrue.
The mother agreed that it was necessary to start weaning the child from his afternoon naps because in October 2017 there will be no opportunity for him to do so. The mother will take advice on how to modify the child’s sleeping pattern and when asked to consider to what extent the mother will take into account any view or differences of opinion as may be expressed by the father, she conceded that on present indications there was no real likelihood of the parties adopting a cooperative approach.

It did not surprise Ms S that the observations of the child with the father may be one of good regulation, but with the mother he has a “melt down”. It is not uncommon for the more florid aspects of a child’s dysregulated state to occur with the primary caregiver.
Ms S was shown the video footage, but it was not surprising given her own experience that little can be gleaned from the child appearing to be either regulated or dysregulated.
Ms S was concerned that when the child is well regulated he is able to learn. If he is dysregulated that process is significantly compromised. The more tired the child is, the more likely that he will be dysregulated. At this stage the concern is that the child is not ready to manage even early learning.
Ms S did not accept the proposition that the child may become dysregulated as a result of the mother’s anxiety.
She was initially of the view that limiting the time with the father may assist until the child is older and is by necessity exposed to a range of external stimuli likely to occur when he attends school.
The more difficult question is whether the concept of consistency and routine could be better enhanced by the child spending longer periods with the father rather than shorter periods.
The unknown is the extent to which the child is likely to learn at all and whether he could be integrated into a mainstream environment or whether he will need a special education program.
The witness was impressive and clearly independent of the parties. She was prepared to concede that even with her focus and skillset the child’s regulation was not consistent even across the more limited therapy sessions of 45 minutes.
The child may well appear comfortable and well-regulated with the father, but later may become dysregulated in the mother’s home for reasons that are not able to be identified. The witness is strongly supportive of a cautious approach, with the prime focus on attempting to minimise the extent of the child’s dysregulation to provide better opportunity for the therapeutic intervention to have maximum effect.
The overarching concern of Ms S was that the child appeared to be poorly regulated for long periods.

Ms F – family consultant

Following a joint referral for an update Family Assessment Report, the family consultant prepared a report dated 13 July 2016 as an update to the initial Family Assessment in 2015 which assisted in interim orders being made on 22 December 2015 for the child to spend time with the father under the supervision of his parents from 9 am to 1 pm each week.
The parties were interviewed on 5 July 2016 and there were observations made of the child with each of the parties. When observed with the father the child’s behaviour was unsettled and anxious and the family consultant noted that the child displayed the following behaviours:-
Pacing and rocking, spending the majority of the time standing, shifting focus between activities frequently, poorly articulated speech and significant echolalia and minimal eye contact.
The child was more settled when observed with the mother and whilst the child exhibited signs of stress, the mother was able to effectively intervene.
The family consultant sought the input from the child’s speech pathologist and from Ms S.
The focus of recommendations by Ms F was that supervision could be reconsidered as the child’s development progresses.
Under cross examination, the family consultant conceded that she did not have any expertise or experience in terms of working with children with Autism or displaying Autism Spectrum Disorder.
In relation to her first report, she agreed that the child presented as comfortable and at ease with each of the parties and it was clear that he had a meaningful relationship not just with his primary carer being the mother, but also with the father. In the first report the mother had conceded that the father was a good parent.
In terms of equal shared parental responsibility, the family consultant considered that the child was vulnerable both by reference to age and his diagnosis of Autism and equal shared parental responsibility is highly dependent on the parties being able to co-parent. She considered it would be a stretch for the child to become a functional five year old.
The family consultant repeated that the issues of concern as raised by Ms S and reinforced the view that whilst change is inevitable, the parties should do as much as was reasonably practicable to ensure some continuity of parenting and environment in their separate homes.
The tenor of evidence of the family consultant was that whilst she does not have the experience in assessments involving children with Autism or Autism Spectrum Disorder, nonetheless, a cautious approach must be adopted to the extent to which time with the father is increased consistent with the child needing to remain regulated in order to gain the maximum benefit from the ongoing therapeutic intervention.
A significant event will be the child turning five years of age and looking to enter formal school education whether that be mainstream or special education.

PRINCIPLES RELEVANT TO PARENTING ORDERS

Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. Best interests of the child are to be considered by the application of the objects of s 60B(1).
I am cognisant of the primary and additional considerations in respect of the matters as set out in s 60CC(2) and (3). I am mindful of the directions contained in s 60CC(2A) and have regard to the allegations of the mother that during the relationship there was aggressive conduct on the part of the father which could be categorised as family violence.
It is not alleged that the child is at risk from the father by reason of family violence, although it is the mother’s concern that unless the father is vigilant in respect of his mental health issues, there are clear risk to the child’s safety should the father suffer an episode of ill-health.
A significant focus has been on the psychiatric evidence as presented by the father’s psychiatrist and the psychiatric assessment obtained on the instructions of the ICL.
I propose to adopt the following approach:-
4)To give consideration to the proposals put forward by each of the parties as they are identified and presented to the Court;
5)Have regard to the objects as expressed in s 60B(1) and underlying principles in s 60B(2);
6)Have regard to the provisions of s 60CC in order to determine in each case what is in the child’s best interests;
7)Have regard to the primary considerations under s 60CC(2) namely, the benefit of the child having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm;
8)Have regard to the additional considerations under s 60CC(3);
9)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and (3) are to be considered and if more weight is to be given to one or more of the matters raised then this must be the subject of delineation and comment.
Section 61DA requires the Court to consider whether to apply the presumptions of equal shared parental responsibility by having regard as to whether the matters as set out in s 61DA (if relevant) would rebut the presumption.
In that respect the provisions of s 61DA(2) are relevant:-
The presumption does not apply if there are reasonable grounds to believe that a parent of a child (or a person who lives with a parent of the child) has engaged in:-
(a)the abuse of the child or another child who at the time was a member of the parents’ family (or that other person’s family); or
(b)family violence.
The presumption may be rebutted if there is evidence that would satisfy the Court that it is not in the best interests of the child for the parties to have equal shared parental responsibility.
This consideration is relevant in these proceedings as the father seeks an order of equal shared parental responsibility, whereas the mother seeks sole parental responsibility.
If the presumption is rebutted the Court can proceed to make parenting orders having regard to the provisions of the Act, but based on findings pursuant to s 60CC. If the presumption applies (and in any event the parties seek an order of equal shared parental responsibility) and it is not rebutted, then s 65DAA requires the Court to consider whether there should be an order for equal time. If not, then substantial and significant time. The test is whether the orders would be in the interests of the child and reasonably practicable as was said in MRR v GR (2010) 240 CLR 461 that the consideration of whether equal time is feasible “requires a practical assessment”.
I am of the view that notwithstanding the provisions of s 65DAA would not apply if the presumption of equal shared parental responsibility is rebutted, nonetheless, the separate proposals of the parties and the orders that each of them seek would require a consideration as to whether they are reasonably practicable.

PARENTING CONSIDERATIONS

Current order

Following the hearing on 19 August 2016, orders were made on that day which provided for the parties to have shared parental responsibility for the child, with the mother to have the final decision in respect of health issues affecting the child. The child was to live with the mother and following six periods of supervised time, providing there was no incident or significant issue, the child would spend unsupervised time with the father from 9 am to 4 pm each Saturday.
By order made 20 December 2016, paragraph 7(b) of the orders made on 19 August 2016 were suspended and the father’s time with the child was altered to occur each Tuesday and Saturday from 9 am to 1 pm. The handover for the purposes of the order were to be effected by the mother delivering the child to the father at the commencement of the time and the father returning the child to the mother at the conclusion of time.
The mother seeks sole parental responsibility. The father continues to seek equal shared parental responsibility.
The father does not challenge that the child should live primarily with the mother. The dispute centres upon the extent of time that the father should spend with the child. The mother does not now strongly press that the father’s time be supervised.

Meaningful relationship

The mother acknowledges that it is of benefit to the child that he has a relationship with the father. The child relates well and affectionately to both of his parents. Whilst the mother may be mistrustful of the activities that the father engages in with the child when in his care, the objective evidence from Mr C over numerous periods of supervised time strongly promotes a finding that the child enjoys his time with the father.

The need to protect the child from harm

The father acknowledges that there has been family violence as exemplified by his assault on the mother and his plea of guilty on 11 December 2015. Whilst it is a matter of some mitigation that a determination by the Presiding Magistrate to not record a conviction but to impose a good behaviour bond for a period of 12 months may suggest that the offending was at the lower end of the scale, nonetheless, the impact of family violence, particularly in circumstances where the mother complains of mental health issues and impulsive behaviour of the father, promote the mother’s ongoing concern as to the adequacy of the father’s ability to parent the child.
The relationship of the parties whilst they were together was clearly marred by conflict and at times aggressive behaviour by the father.
Following separation the parties have had little to do with each other, other than where necessary to give effect to parenting orders. There is no assertion by the mother that the father has continued to behave aggressively and the evidence of the father’s psychiatrist supports a contention that his mental health issues appear to be in remission. The father presents as stable and his behaviour appears appropriate, particularly in the context of his employment, parenting programs undertaken and evidence from his parents, but also as observed by Mr C, the family consultant and his limited involvement with the I Children’s Development organisation.
Moreover, the father has had the advantage of unsupervised time since late 2016 without complaint other than the extent to which the very nature of the arrangement may be exacerbating the child’s propensity to dysregulate.
I do not consider that the father presents as a risk to the child arising from family violence, nor is the child at risk of physical harm. There is no evidence that would support a contention that the father has any propensity to abuse or neglect the child.

Views expressed by the child

There is no evidence of the views of the child. The child’s age and the diagnosis of Autism Spectrum Disorder does not allow for the child’s views to be of relevant consideration.

The nature of the child’s relationship with his parents and other persons

Whilst the mother’s early position was that the child had little attachment to the father and he had little interest in the child, she now concedes that the relationship between the father and the child is important. The concern of the mother is the doubt she has that the father is committed to doing all that is necessary to minimise the child’s dysregulation.
Each of the child’s grandparents, both maternal and paternal, are strongly attached to the child. The mother is heavily reliant on the assistance of her parents and in particular the maternal grandmother. The father is also dependent on assistance from his parents.
The evidence supports the finding that the child benefits not just from the relationship with his parents but from the extended families.
The child is looked after by the maternal grandparents on four afternoons a week and I accept the evidence of the maternal grandmother that she usually is at her daughter’s home most days.
On almost every occasion that the child spends with the father there is one or other of his parents in attendance.
Whilst supervision has not been required for some time, the father’s brother has been a supervisor in the past.
Orders that each of the parties seek are not likely to have an adverse impact upon the child’s relationship with extended family.

The ability of each of the parties to facilitate and encourage an ongoing relationship between the child and the other parent

The father would argue that he does not in any way seek to impede the relationship that the mother has with the child. He recognises that she should fulfil the role of primary caregiver and as such the focus of the proceedings in not where the child will live, but rather the extent of time that the child spends with him.
There has been no evidence presented that would support a view that the father has attempted to interfere with the mother’s relationship with the child. The father however is mistrustful of the mother’s intention in that regard and considers that the restrictions and conditions that she has historically placed upon him in relation to the extent of time that he spends with his son is motivated not only by the dictates of his Autism diagnosis, but to also limit the child’s time with him and therefore to disrupt their relationship.
Whilst I have found by reference to the evidence that the mother is hypervigilant in respect of the child and his time with the father, I do not find that she is motivated by malice or that there is a strategy designed to deliberately place a barrier to the development of child’s relationship with his father. There is however a level of rigidity in the mother’s presentation and I am cognisant of her evidence that she will comply with orders of the Court only to the extent that she does not consider them to be inconsistent with her view of what is in the child’s best interests.
I am generally satisfied that the mother does support the relationship, but would seek to temper the father’s proposal for increased time with the child’s ability to cope with change and thereby minimise his deregulation.

The likely effect of a change in the child’s circumstances including the effect on the child of separation from his parents

The child is demonstrably familiar and closely attached to each of the parties.
The mother’s concern is that significant periods of separation from her care, is likely to exacerbate the child’s propensity for dysregulation. The issue of dysregulation should not be considered in the abstract but rather in the context of the evidence of Ms S that dysregulation is the very antithesis of her ability to administer beneficial therapy.
Whilst it is perhaps an unfair summary of the mother’s position, at this stage in the child’s development, she considers that longer periods with the father is likely to be more destabilising to the child and therefore there is more change of the child’s emotional state becoming dysregulated. That is not to suggest that there is a finding that the child does not enjoy his time with the father, or that he is at risk. It is rather a reflection of the complexity of the child’s presentation as noted by Ms S and exemplified by the difficulty she experienced with regulating the child’s behaviour even during the relatively short period of the consultation time. Both parties agree that even in respect of the parameters of their separate proposals, the transition to more time should be gradual. The parties do not agree as to the endpoint of that transition, but at least there is recognition that orders have to be child focussed and within the child’s ability to cope, at least for the mid-term until the complexity that will arise when the child enters mainstream education or special education classes.

The practical difficulty and expense of the child spending time with each of the parties

Each of the parties are employed. Each have strong support from extended family. There is no evidence that supports a practical difficulty that would arise from either of the parties separate proposals.

The capacity of each of the child’s parents and any other person to provide for the needs of the child including the emotional and intellectual needs

The father has completed various parenting courses and has become informed on the topic of Autism and how it is likely to affect his son. Whilst the father did not engage directly with Ms S, the notes from I Children’s Development indicate an interest and involvement by the father and a willingness to be included in the child’s therapy.
The mother and her parents are well able to care for the emotional and intellectual needs of the child.
I consider that the father is also able to do so and he has the unique advantage of the paternal grandparents holding the separate professions of occupational therapy and psychiatry.
The parties are able to communicate via text messaging and I am satisfied that once the litigation is concluded the parties will be able to establish a level of communication necessary to promote the child’s interests.
The difficulty is the extent to which each of the parties considers the level of communication in the communication book to be adequate. The mother’s entries tend to be prolific and detailed. She is critical of the father for what she considers to be inadequate particularity in his responses.
I do not propose to order the extent to which the parties provide information to each other. Given the evidence of Ms S, the high level of uncertainty as to what may ultimately be the catalyst for the child becoming dysregulated, may not be capable of forensic inquiry. Even subtle differences between the parties may be sufficient. It was a consideration of Ms S that the relatively short periods of time spent with the father maybe in and of themselves a destabilising circumstances.
The evidence supports the goal of the parties, doing the best that they can, to provide continuity, stability and sameness in each household, but the complex presentation of the child may mean that the propensity to dysregulation can be minimised but certainly not avoided entirely.

Family violence

Family violence is raised not only by the mother’s allegations, but also the father’s guilty plea to the charge of assault in 2015.
I am not persuaded however that there are current issues in respect of family violence that need to be brought to account in terms of the orders that are made, save and except that it may play a part in the mother’s ongoing mistrust of the father’s protestation that he is able to safely parent the child free from psychiatric incident.

Parental responsibility

The interim orders of 19 August 2016 provided for shared parental responsibility between the parties, but entitled the mother to make any final decision in respect of the child’s health.
I consider that the presumption of equal shared parental responsibility must be rebutted, not just because of the father’s admission that he assaulted the mother, but the conflict between the parties is such that in relation to the critical area of the child’s health it is not in the interests of the child for there to be equivocation by the parents.
The mother is clearly a competent and engaged parent. The evidence from Ms S demonstrates a high level of parental involvement. The needs of this child are such that there is little room for error or argument.
There is no good reason, other than in respect of the child’s health, where the parties are not able to give mature and appropriate consideration to other important aspects of parental responsibility.
Where the child attends school and the nature of education is an important consideration and the child is likely to be better assisted by the joint input of the parties.
They are able to communicate via a communication book and of recent date by text messaging.
Notwithstanding the evident mistrust that the mother has for the father, the parties are intelligent parents and away from the litigation they each show a willingness to communicate and recognise the benefits to the child of cooperating with each other.
I propose to order that the parties have shared parental responsibility, but that the mother has sole parental responsibility for the health needs of the child.

The time that the child is to spend with the father

The ICL proposes that the current interim orders namely, that the child spend time with the father each Tuesday and Saturday from 9 am to 1 pm continue until the child’s fourth birthday in 2017. Thereafter, it is proposed that the child spend eight hours with the father on one occasion each week.
The mother proposes that from the child’s birthday the father spend from 9 am to 4 pm on each alternate Saturday and intervening Sunday.
The mother does not propose any further extension of time.
The father considers that there should be an immediate transition to overnight time each alternate weekend and from 9 am to 4 pm on the intervening Sunday. The father also proposes an additional one night per week during the short school holidays and for two nights per night in the December/January school holidays.
The father’s time should transition to each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday morning, each intervening week on the Wednesday evening from 4 pm to 7 pm and an additional three nights per week during school holidays.
Whilst the father seeks that there be shared care upon the child reaching the age of 10 years, there is little or no evidence that would enable the Court to consider whether that is in the child’s best interests.
The evidence of Ms S and the family consultant provide no support for any significant or immediate change to the current arrangements.
As indicated, I was impressed with the evidence of Ms S, in particular her summary of the child’s ability to cope with significant change in terms of the juxtaposition of the need to minimise the child’s dysregulation and to promote and facilitate behavioural therapy.
I am also mindful of the mother’s mistrust and misgivings as to her assessment of the father’s ability to appropriately parent the child.
Whilst I do not consider that the father presents a risk to the child in terms of any mental health incident or misadventure, nonetheless it is important that she be given an opportunity to accept the future arrangements and the child’s time with the father to increase consistent with the differing experiences the child will inevitably experience as he progresses to school age.
I propose therefore to make orders that are not dissimilar to those proposed by the ICL, but with some minor adjustments to reduce the period that the child does not see the father.

Supervision

There is no order at present for supervision. Whilst it was a significant aspect of the mother’s orders sought, she appears to have accepted that supervision is unnecessary. The father however has been taking his time generally in the presence of members of his family.
I do not consider that supervision is required and I expect that whilst not exclusively so, the majority of the time that the child spends with the father is likely to be spent with a member of his family, if only for convenience.

The need for any further family assessment

The parties each seek final orders. I am obliged to consider orders that are least likely to lead to further litigation. The parties are both physically, emotionally and financially weary of the litigation. I do not consider that there is any advantage to either a further family assessment, nor indeed any involvement of the child’s psychologist. The child is currently undergoing therapy with I Children’s Development. As discussed, I was impressed with the evidence and expertise of Ms S and am entirely satisfied that the focus should be on providing the child with therapeutic assistance to manage his many and complex difficulties. The involvement of a child psychologist is not likely to assist.

The father’s ability to drive with the child in the car

The mother is clearly concerned at the risks that she sees to the child if the father is permitted to drive in a car without supervision. The mother’s concerns arise from her own experience, but in particular on certain specified occasions. Whilst they may well have been distressing to the mother at the time, a number of years have now passed and there is no evidence to suggest that the father has a poor driving history. He holds a licence. There is no impediment to him driving on the road. There is no evidence that would support an arbitrary order that would not enable the father to transport the child unaided. I do not propose to make such an order.

Should the father attend school events without the mother’s consent?

No evidence was led as to the risk to the child of the father attending school events to which parents are normally invited. There is no family violence order in place. There is no restriction on the father. The parties have had no significant interaction for a number of years and the issue of any attendance at a school event will not arise until the child commences formal school education, but at this stage not before October 2018 and probably not likely to be a significant issue until the commencement of the 2019 academic year.
The father would like to attend school events and whilst I can see no immediate reason to restrict his ability to do so, there may well be some advantage in terms of relieving and/or reducing the mother’s anxiety and therefore her ability to appropriately parent the child by restraining the child from attending the child’s school events (save and except for those events which the mother does not attend and separate/teacher interviews) until the child attains the age of five years.

Management of the father’s psychiatric care or health

The father consents to following all reasonable directions of his treating psychiatrist and is prepared to advise the mother should there be a termination of his professional relationship.
I was impressed with the evidence of the father’s psychiatrist and the extent to which the father has consistently consulted with him. I do not consider there is any need for the Court to impose any order with respect to medication, or that the mother be provided with the details of the father’s psychiatric care or medication changes. Any risks that the father might pose to the child are matters about which the psychiatrist would be obliged to mandatorily report.

CONCLUSION

I make orders as appear at the commencement of these reasons.

I certify that the preceding three hundred and fifty five (355) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 20 July 2017

Associate:

Date: 20 July 2017

[2017] FamCA 523

20 July 2017

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness

1983	Father is born
1985	Mother is born
2002	Mother diagnosed with depression and anxiety
2003	Mother starts business
Prior to 2004	Father suffers anxiety and depression
2004 – 2005	Mother alleges father had “severe psychiatric breakdown” and subsequently developed Bipolar Disorder and Paranoia
September 2004	Father first attends upon Dr D and subsequently attends on a monthly basis
August 2006	Parties commence a relationship
February 2007	Mother alleges father became “cocky” at a birthday party and subsequently was driving erratically
October 2007	Parties commence living together
2008	Father obtains employment but was unable to maintain work commitments
March 2008	Father alleges parties argued over the state of the house and mother threatened to commit suicide
2009 – February 2010	Parties reside in a stand-alone unit at the rear of maternal grandparents’ property
26 January 2009	Mother alleges father had an episode of paranoia becoming angry and pushing the mother. Maternal and paternal grandparents were called
April 2009	Father commences employment at maternal grandfather’s company
February 2010	Parties purchase the former matrimonial home
Mid 2010	Parties are married
March 2011	Father alleges parties argued and he was concerned mother might self-harm
1 January 2013	Father leaves employment as company became insolvent
March 2013	Mother alleges father was driving erratically to a family barbecue
August 2013	Mother alleges father pushed her “neck and collarbone” whilst driving following an argument
September 2013	Mother alleges father went missing for several days
September 2013	Father says he stopped seeing Dr D at mother’s request
Late 2013	Child is born
December 2013	Mother alleges an argument where father locked himself in the study
December 2013 – March 2014	Father alleges he ceased working to care for the child
Early 2014	Child is diagnosed with pelvic kidney (kidney has not risen to the abdomen)
20 January 2014	Mother alleges father punched the child’s mattress when the child was sleeping. Mother called the police.
24 January 2014	Father attends X Hospital
February 2014 – June 2014	Period of trial separation
26 September 2014	Mother alleges parties had an argument where the mother asked the father to re-commence seeing his psychiatrist. Father punched mother in the abdomen repeatedly
8 October 2014	Parties separate
Post-separation	Mother discovers father’s medication which is prescribed for schizophrenia
8 October 2014 – 11 March 2015	Father spends supervised time with child 2 – 3 times per week for a period of 4 – 8 hours as agreed between the parties
January 2015	Father recommences seeing Dr D fortnightly
18 February 2015	Mother alleges paternal grandmother was asleep whilst “supervising” the father’s time with the child
11 March 2015 – 10 April 2015	Father did not spend time with the child.
11 April 2015 – 23 May 2015	Father alleges mother only permitted him to spend a period of 2 hours with the child per week
24 May 2015 – 18 July 2015	Father alleges the mother did not permit him to spend time with the child
19 July 2015 – 28 November 2015	Father spends time with the child at children’s contact centre
9 September 2015	Private child dispute meeting report prepared
11 December 2015	Father enters a plea of guilty in regard to assaulting the mother on 26 September 2014
24 December 2015 – 23 April 2016	Father spent supervised time with child pursuant to court orders of 4 hours per week. Mother alleges the child displays dysregulated behaviour following time with father
February 2016 – March 2016	Father attends upon various courses to become informed of child’s diagnosis
February 2016 – April 2016	Parties attend co-parenting counselling with Ms G
2 February 2016	Child diagnosed with sensory processing disorder by an occupational therapist
12 February 2016	Child diagnosed with receptive language delay by a speech therapist
26 February 2016	Father commences employment
23 April 2016	Mother alleges father’s time with child was not being supervised by paternal brother (“the incident”)
30 April 2016 – 21 May 2016	Father did not spend time with child following the incident
28 May 2016 – 8 October 2016	Father spends 2 -3 hours per visit with child supervised by Mr C
23 August 2016	Father completes the “Kids are First” parenting program
15 October 2016	Father’s time with child increases to 7 hours per visit each Saturday
22 October 2016 – 19 November 2016	Mother alleges the child became dysregulated following time with father
26 October 2016	Child diagnosed with autism by paediatrician
31 October 2016	Child diagnosed by paediatrician with thalassaemia minor (smaller than normal blood cells)