Preston & Darville
[2021] FCCA 1535
•7 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Preston & Darville [2021] FCCA 1535
File number(s): MLC 6697 of 2016 Judgment of: JUDGE HARLAND Date of judgment: 7 July 2021 Catchwords: FAMILY LAW – parenting – child aged 7 with special needs – both parents have mental health vulnerabilities – which parent will be better able to facilitate the other’s relationship with the child Legislation: Family Law Act 1975 (Cth), Part VII, ss 60B(1), (2), 60CA, 60CC(2), (3), 61DA(1), (2), (4), 64, 65D, 65DAA(1), (2), (3), 69ZW Cases cited: Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
MRR v GR [2010] 240 CLR 461
Oberlin and Infeld [2021] FamCAFC 66
Waterford & Waterford [2013] FamCA 33
Number of paragraphs: 184 Date of hearing: 22 – 24 March 2021, 31 May 2021 Place: Melbourne Counsel for the Applicant: Mr Leeton Counsel for the Respondent: Mr Allen Counsel for the Independent Children's Lawyer: Mr Tesoriero ORDERS
MLC 6697 of 2016 BETWEEN: MR PRESTON
Applicant
AND: MR DARVILLE
Respondent
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
7 JULY 2021
THE COURT ORDERS THAT:
1.On 4 August 2021 all previous orders be discharged
2.The ICL be discharged in 60 days of the date of these orders.
3.The parties exercise equal shared parental responsibility for the child, namely, X born in 2013 (“the child”).
4.Within 48 hours of the dates of these orders the parties contact Ms Q to arrange for Ms Q to work with X, the mother and the father to create a social story to explain to X the changes to his living arrangements set out in these orders.
5.From 4 August 2021 the child live with the mother.
6.From 4 August 2021 the child spend time and communicate with the father as follows:
(a)Each alternate week from after school on Thursday (or from 3:30pm on non-school days) until the commencement of school on Monday (or 9:00am on non-school days);
(b)For one half of the school term holidays as may be agreed in writing, and in default for the first half from the conclusion of school on the last day of term until 12.00 noon on the middle Saturday of the holidays;
(c)For one half of the long summer holiday as may be agreed in writing and in default on a week about basis commencing in the second week of the summer holiday period, save that the child shall return to the mother’s care by 4:00pm on the third day before school resumes such that the child has two full days with the mother.
7.Unless otherwise agreed, paragraph 5 of these orders are suspended during the following periods and during those suspended periods, the provisions as set out in this paragraph shall apply:
(a)On the child’s birthday during the period from after school (or from 3:30pm on non-school days) until 6:00pm during which time, the child shall spend time with the parent with whom he is not living during that week;
(b)On Father’s Day in each year, the child shall spend time with the father from 9:00am until 6:00pm;
(c)On Mother’s Day in each year, the child shall spend time with the mother from 9:00am until 6:00pm;
(d)During the period in each year from 3:00pm on 24 December until 3:00pm on 26 December and during that period;
(i)The child spend time with the mother from 3:00pm on 24 December until 3:00pm on 25 December in each even-numbered year and from 3:00pm on 25 December until 3:00pm on 26 December in each odd-numbered year;
(ii)The child spend time with the father from 3:00pm on 25 December until 3:00pm on 26 December in each even-numbered year and from 3:00pm on 24 December until 3:00pm on 25 December in each odd-numbered year.
(e)Such further or other times as agreed between the parties in writing
Changeover and Communication
8.The parties shall communicate via a text or email save in the event of an emergency.
9.Where changeover is unable to occur at the child’s school, then parties will effect changeover at location as agreed between the parties, or failing agreement at Suburb B McDonald’s Restaurant.
Medical
10.The parties shall each inform the other immediately (or as soon as is reasonably practicable) of any serious illness or injury sustained by the child whilst in their care and provide particulars of any treatments required or received by the child together with the name and address of the treatment provider and/or location at which that child is hospitalised.
11.Each party shall forthwith notify the other parent of the details of all medical and allied health service provider involved in the child’s care, including any changes to such providers within 48 hours of such change occurring.
12.Each party shall make available to the other party any medication prescribed for the child for the other party to administer as prescribed or required.
Educational Information
13.Each party be authorised to obtain, at their own expense, copies of all school reports, school newsletters, photograph order forms and any other documents or notices normally provided to parents.
14.Each party is permitted to attend all parent/teacher interviews, sports carnivals and any other school activities which parents normally attend. In the event such activities require an allocation of tickets to families, each parent shall be permitted to have one ticket each and otherwise remaining tickets shall be distributed equally between the parents.
15.Each parent is at liberty to provide to the child’s school, a copy of these orders.
Other orders
16.The mother immediately inform the father in the even that she suffers any mental health episode that results in her being hospitalised.
17.The parties use the child’s full name, X, when enrolling or engaging the child with any school, medical or allied health practitioner or in any other situation or circumstance that the child’s name is required.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Preston & Darville is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE HARLAND:
This matter concerns X, who is 7 years old. He has been diagnosed with autism spectrum disorder and ADHD. His parents have both experienced childhood trauma and mental health issues. Both parents want X to live primarily with them and spend time with the other parent.
ISSUES IN DISPUTE
The central issues in this case are which parent is best placed to provide for X’s special needs and facilitate X’s relationship with the other parent. In determining these issues it is necessary to address and consider the following:
(a)the risks posed by the mother due to her mental health;
(b)the role of the maternal grandmother as a protective factor;
(c)the risks posed by the father due to his mental health;
(d)the communication between the parents and their capacity to facilitate X’s relationship with the other parent.
The father’s case is that he is best able to provide for X’s needs and that the mother is unable to do so. X came into the father’s care after the Department of Families, Fairness and Housing (“DFFH”) removed X from the mother’s care.
The mother’s case is that she has addressed her very serious mental health issues and is better able to look after X and facilitate the father’s relationship with X.
In addition to the considerations outlined above, there are a number of factors that will assist in determining the issues. DFFH has previously been involved in the family and provides useful information in the form of various reports and consultations. The communication between the parties and the father’s attitude towards the mother are interrelated factors, which will be considered and discussed in further detail.
The final hearing was adjourned part-heard after it became clear that the Court required further evidence from both X’s treating professionals, Dr C and Ms Q.
At the end of the trial the positions of the Independent Children’s Lawyer (“ICL”) and the mother remained unchanged. Both sought orders for the parties to exercise equal shared parental responsibility, for X to live with the mother and spend time with the father four nights a fortnight, from Thursdays to Mondays during school terms and for school holidays to be shared. Whilst the father’s position did not formally change, he somewhat reluctantly accepted that the parties should exercise equal shared parental responsibility and that the mother’s time with X should be increased. It was clear that the father was accepting the reality of the situation given the evidence rather than he being of the view that increased time with X and the mother would be in X’s best interests.
IMPRESSIONS OF THE PARTIES AND MATERNAL GRANDMOTHER
During the course of the proceedings, the father came across as rigid in his thinking and somewhat isolated.
The mother showed greater insight and flexibility. Her mental health issues are more serious than the father’s but the mother and maternal grandmother were credible in their evidence. The mother demonstrated insight into the benefit of completing a parenting course and was able to reflect on her learnings. The father did not show the same insight into his mental health or the mother’s and did not show a capacity to facilitate the mother’s relationship with X.
I was also impressed by the maternal grandmother. The mother and maternal grandmother are survivors of serious family violence. It is completely understandable that the mother would be judgemental and critical of her mother for the violent home environment she grew up in and for not leaving the relationship earlier.
It is also credible that at the time neither the mother nor the maternal grandmother understood the mother’s mental health which had not yet been diagnosed. I note that whilst the mother experienced depressive episodes since childhood she was first diagnosed with bipolar disorder in May 2018, shortly before her psychotic episode and hospitalisation.
BACKGROUND
The parties were in a short relationship from 2012 to 2014. They lived with the maternal grandmother at her home. X was a baby when they separated. The father says during the first 14 months of X’s life, the mother prevented him from seeing X.
The mother commenced the first set of proceedings on 18 July 2016. The mother had entered into a relationship with Mr D and wanted to relocate with X to Town E in New South Wales.
The parties entered into final consent orders on 2 June 2017, which permitted the mother’s relocation and provided for the father to spend time with X every third weekend. The parties agreed to various other orders including exercising equal shared parental responsibility.
The mother moved back to Victoria after her relationship with Mr D ended. At that time, the mother was suffering from poor mental health. DFFH commenced protective proceedings and placed X in the father’s care in June 2018. They ceased their involvement some 6 months later.
The father commenced these proceedings on 11 December 2018, seeking that the parties continue to exercise equal shared parental responsibility, X live with him and have supervised time with the mother at F Contact Centre.
DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING INVOLVEMENT
DFFH first came into contact with the family in March 2013. The risk concerns centred on the mother’s suicidal ideation and thoughts of harming X. DFFH noted that she attempted to commit suicide in March 2013. The case with DFFH was closed in September 2013 as the mother had engaged with support services.
The DFFH Court Confidential Report dated 13 August 2018 is Exhibit 2. That document refers to DFFH’s history with the family dating back to 2013. DFFH intervened after concerns were reported about the mother’s unstable mental health and the subsequent risks to X in the mother’s care and as such, X was placed in the father’s care on 12 June 2018. The concerns related to the mother, her mental health and her capacity to care for X. At the time, the mother returned to City G to live with the maternal grandmother after the breakdown of her relationship with Mr D.
The mother was hospitalised at the H Centre in June 2018. Upon being interviewed by DFFH workers, she presented as being highly paranoid and unable to understand the impact of her circumstances on X. The mother disclosed instances of family violence experienced in her relationship with Mr D. The mother said it was mainly his mother being violent towards her and not Mr D. The mother says Mr D was not physically violent to her but was controlling and did not like her having contact with family and friends. At the time she made the application to be able to move to Town E with X, her relationship with Mr D was serious and she believed it to be a long-term one. The mother did concede that there was physical altercation between them when they separated and she was an instigator of violence that day. She otherwise denied that Mr D was violent and said his mother was violent towards her. What is also very clear from the chronology is that as her relationship with Mr D deteriorated and broke down, so did her mental health. The relationship ended in June 2018 and within days, she had moved back to City G, DFFH removed X from her care and she was hospitalised.
DFFH substantiated harm on the basis of X’s exposure to historic and ongoing family violence and the mother’s unstable mental health. DFFH also noted that in July 2018, the mother had ceased the father’s time with X, however this appeared to be due to her own unstable mental health, rather than risks posed by the father. DFFH issued a Protective Application, recommending X be placed in his father’s care. They referred to the significant risk to X if he was returned to the mother’s care. Particularly, due to various concerns related to the mother’s mental health, the fact the mother showed limited insight into the impact of her mental health on X and she was unable to make appropriate decisions regarding X’s well-being. The report also referred to the mother exposing X to family violence and ongoing chaotic living arrangements with multiple unexpected moves to New South Wales and City G.
In the report, DFFH stated the mother needed ongoing intensive mental health support and additional supports to understand how mental health impacts on her parenting. The report noted that the mother had started to make some positive changes and was engaging with support services. It was recorded by DFFH, the changes made by the mother would need to be sustained for an ongoing period of time. As a result of those reasons, DFFH recommended the family preservation order, with X remaining in the father’s primary care and DFFH remaining involved to ensure X’s safety was prioritised.
The Section 69ZW report dated 6 March 2019, summarises DFFH’s involvement with the family including what has been referred to above. In December 2018, a consultation occurred and the father expressed concerns about X being unable to be enrolled in school because the current family law orders referred to the mother having custody of X. At the time, the father was in the process of making an application to the Court. DFFH expressed concern about the father withdrawing X from his Kinder Program after the mother attended and asked to be included in the enrolment information. DFFH was also concerned about the father’s lack of insight around the importance of school enrolment and his unwillingness to cooperate with the mother. DFFH referred to receiving numerous reports with respect to the mother’s poor mental health, X’s exposure to family violence and to conflict between his parents. The report acknowledges that both parents have shown a capacity to engage with services to address those concerns. The report noted that DFFH had previously assessed that both parents were appropriate to care for X on 18 November 2018. DFFH recommended the parents may benefit from further education relating to the impact of their acrimonious relationship on X and strategies for co-parenting.
THE MOTHER’S MENTAL HEALTH
The mother first experienced episodes of depression as a teenager. In 2018 she was diagnosed with bipolar disorder. Dr J, who conducted a psychiatric assessment of both parents, noted that the mother had previously been diagnosed with bipolar II disorder, but given the manic episode she experienced in 2018 he advised that it is more likely she has the more severe variant bipolar disorder. The mother also presented symptoms consistent with complex post-traumatic stress disorder (C–PTSD) as a result of her upbringing where her father was severely violent to everyone in the family.
Dr J conducted a psychiatric assessment of the mother in June 2019. In his assessment, he recorded that she has a long history of recurrent episodes of depression since she was 14 years old. He also recorded she was experiencing an episode of depression at the time of the interview, and noted that although it was not as severe as previous episodes, it was still incapacitating...
The mother has been hospitalised for various periods, including in 2013, when she overdosed on her antidepressant medication in an attempt to commit suicide.
Dr J noted that whilst the mother had sought treatment, particularly with respect to her recent episode, he had the impression that her treatment had been sub-optimal. The most obvious example, being when it was found that she responded well to an increase in the level of medication that she had originally been prescribed at a sub-therapeutic dose. He thought that she was properly treated when acutely unwell, but that there was a lack in the continuity of her care. Dr J expressed the view that the mother had not received adequate treatment for her complex post-traumatic stress disorder. It is a chronic condition. Bipolar disorder is episodic. He formed the opinion that this combination of chronic and episodic mental health problems, coupled with the lack of proper treatment, severely affected the mother’s capacity at the time of the report to provide a stable environment for X, which is all the more important for him given his special needs. He also thought that she had an ambivalent relationship with her mother.
The mother currently works as a carer. The mother currently works between 20 to 25 hours a week. She says her employer has been very flexible with working arrangements, particularly with her family commitments. The mother says she is able to take shifts during school hours and when X is in the father’s care. The mother says she really enjoys that work and would like to continue with it.
The father’s Counsel cross-examined Dr J about the importance of patient compliance in order for medication to be effective and suggested that lithium can become less effective over time. Dr J said it is relatively uncommon and said that the effectiveness of lithium in a patient is monitored by looking at the blood levels. In most cases, the dosage of lithium prescribed to patients remains the same for years rather than patients developing a tolerance to it, however, it is more commonly lowered in elderly patients.
Dr J properly conceded unexpected events happen. A doctor can see a patient who is stable become unstable shortly afterwards. However in his experience, it is more common for people to show signs of being unwell and starting to become depressed or manic over several days or weeks. He said that that is more common than someone experiencing an acute event without warning.
The father’s Counsel asked Dr J to expand upon his comments at paragraph 62 with respect to the mother having both bipolar disorder and C-PTSD. Dr J said one is a psychiatric disorder that is largely biological, and the other is based on traumatic experiences. They are two separate conditions that at times can interact with each other. Bipolar disorder is a lifetime condition.
Dr J agreed with the mother’s Counsel’s proposition that, provided the mother is compliant with medication, and continues to engage with her psychiatrist, psychologist and GP, then she is receiving adequate treatment. The mother’s Counsel asked him to comment on the likelihood of the mother having a relapse similar to that in June 2018 if she maintains this treatment regime. He replied that about half of the people who experience an index episode of bipolar are able to control their relapses and the other half do not. Dr J went on to say that with respect to the mother, the poor prognostic features include the early onset and serious suicide attempt and the good prognostic features is that she is engaged in treatment and has had a good response to lithium and has had periods of wellness. He noted that it had been almost 3 years since the June 2018 episode. He said that she may have further episodes but they may not be for many years to come. It is not possible to predict it with any certainty.
In addition to the professional supports the mother has in place, she also has the support of the maternal grandmother. Having seen the maternal grandmother give evidence, I am satisfied that she would make the appropriate reports if the mother became unwell and X was at risk. It does not automatically flow that if the mother has another episode X will be at risk.
Dr J said, with respect to the family consultant’s comments about it being common for sufferers of bipolar to be unaware when they are ill, that this usually that occurs when they are manic but they often have good insight when they are depressed. Dr J thinks that the mother has good intentions of being able to recognise her symptoms with respect to a manic episode, but it may be difficult for her when having a manic episode to recognise those symptoms. He further states that what needs to happen is for an early warning system to be developed, where the mother starts to become unwell, her psychiatrist is contacted, or failing that the Crisis Assessment and Treatment Team. He pointed out that he has not assessed the maternal grandmother, however acknowledges that knowing their relationship has improved, she may be a good person to help the mother recognise possible changes with her symptoms.
Dr J said that presuming the mother’s mood swings are controlled, she would be able to manage parenting X with the same capacity, as if she did not have bipolar.
Dr K has been the mother’s psychiatrist since November 2019. She provided a report dated 17 February 2021. After the onset of Covid-19, the mother saw Dr K for her appointments predominantly through telehealth via video. She commented that telehealth appointments are not as effective as face-to-face consultations. In her report, Dr K referred to the mother being on a “myriad of medications” when she started seeing her, which Dr K tapered and simplified. Dr K said she had concerns about the amount of medication the mother was taking at that time, particularly as the mother had also described some adverse side-effects such as over-sedation and an inability to carry out day to day tasks. The mother was transferred from the care of the Region L Community Mental Health to Dr K. She says the mother has been compliant with her treatment and her mental health has been stable with no signs of psychosis, mania or Obsessive Compulsive Disorder. She will continue to have regular psychiatric reviews and would hope that she would recognise the early warning signs. In addition to seeing Dr K regularly, the mother sees her psychologist monthly and her GP every 6 to 8 weeks. The mother seeing her psychologist regularly adds another layer of safeguards.
Dr K was cross-examined. She says the mother shows good insight into her bipolar affective disorder and C-PTSD and that she has been compliant with her treatment plan. She said it is difficult to predict whether the mother will remain the state of good mental health as it can change over time depending on tolerance to medications and psychosocial stressors. She agreed that in most cases it will be difficult for a patient to realise when they are experiencing a manic episode.
Dr K said that considering the mother’s history, if she has another episode, is likely to either be a depressive episode or a manic episode with psychotic symptoms. She agreed with Dr J that the mother would likely recognise an episode of depression, though most likely not mania.
Dr K said that if the mother remains living with the maternal grandmother she would hope that the maternal grandmother would recognise early signs of the mother having a manic, episode which can include increased energy and not sleeping. She agreed that lithium is a key element of the mother’s treatment.
THE MATERNAL GRANDMOTHER
The maternal grandmother swore an affidavit in support of the mother’s case on 11 February 2021. She is a carer, employed on a part-time basis. Apart from the time the mother lived in New South Wales, she has always lived with the maternal grandmother. The mother would like to obtain her own accommodation eventually.
In the father’s 2019 interview with the family consultant, Ms M, he told Ms M that he was grateful for the maternal grandmother’s assistance as a mediator. The father’s view of the maternal grandmother has negatively changed since the time of that interview, and he does not see her as a particularly positive factor in X’s life. He says this is because he has come to realise that she had a lot of influence and was a cause of many issues.
The father annexed an affidavit the maternal grandmother prepared herself on 31 May 2017. At the time of preparing the affidavit, the maternal grandmother was estranged from the mother, because she opposed the mother moving to Town E to live with Mr D. She observed Mr D to be controlling and was concerned about the mother prioritising her relationship with Mr D over X’s needs.
The mother agreed when she sought to move to Town E, her mother filed an affidavit opposing her move saying it is not in X’s best interests. At that time, her relationship with her mother was strained. She is of the view that they both contributed to the strains in their relationship. Factors that also contributed to the strains in the relationship were the mother’s unstable mental health and their past family trauma. The mother disagreed with Dr J’s characterisation of there being deep-seated issues in her and the maternal grandmother’s relationship. The mother went on to say they have been working on their relationship and provide a strong support for each other. The mother said that she has matured and now has a lot more appreciation for her mother, which she did not in the past.
The mother said she was in a relationship with a man called Mr N however, the relationship ended in early 2020. She introduced X to Mr N after they had been dating for about three months. The mother says she now understands the introduction occurred too early. The ICL’s Counsel cross-examined the mother about comments to the family consultant regarding difficulties in her relationship with the maternal grandmother being her mother’s disapproval of her wanting a romantic relationship. The mother says she thinks she would navigate any future romantic relationship with caution and would be very mindful of introducing X to someone new and that X would be her priority. She agreed with the proposition that she prioritised her relationship with Mr D over X and said she has learnt from that.
The maternal grandmother said the mother saw a psychiatrist in 2006 but was not diagnosed with bipolar disorder at that time as far as she was aware.
In the affidavit of 11 February 2021, the maternal grandmother expresses her gratitude to the father who facilitated her relationship with X during the period that she was estranged from the mother. She was not cross-examined by the father’s Counsel with respect to the criticisms she made of the father about his impatience, temper and parenting skills. The maternal grandmother was cross-examined about an incident where the father attended the home after he and mother separated and the mother complained the father was banging on the windows aggressively. The maternal grandmother agreed that they did not call the police and the maternal grandmother said that at the time, they did not know what to do and never had any involvement with the police. She described the father as menacing and rejected the proposition that she was particularly sensitive to doorknocking because of her experiences of family violence.
The father had denied being aggressive and said he knocked on the window to see if anyone was home after no one answered his knocks at the door.
Shortly after the mother returned to City G and her mother’s home with X, the mother was hospitalised for 3 and a half weeks. The maternal grandmother cared for X whilst the mother was in hospital. Once the mother was released from hospital, the maternal grandmother reported her concerns to DFFH about the mother’s capacity to care for X at that time. During the cross examination by the ICL’s Counsel, the maternal grandmother said that at the time, she did not know anything about bipolar disorder and had not realised that it would take several weeks for the mother’s medication to start to work. She said it was a bad situation and she felt that the father could better care for X at that time. She is now of the view that the mother is better placed to care for X. She said X gets more opportunities with his mother and has taken out more places and the mother is very interested in X’s upbringing. She said once the mother received the correct medication, she noted there was some tweaking of the medication, the mother has transformed. The maternal grandmother described her as “a girl I’ve never met before because unbeknownst to me she was always ill”.
The mother discusses her medication with the maternal grandmother and says it was her suggestion to the mother that her medication be put in a Webster Pak to avoid confusion. The mother took up that suggestion and arranged the Webster Pak with her chemist. The maternal grandmother said that way they always know she has taken her medication and not missed one. The ICL's Counsel asked the maternal grandmother if the mother had discussed the effects of medication with her. She said the mother told her that she feels wonderful now because she is coping with work a lot better than she did when X was small. The mother appears to be able to work and manage home duties, whilst having plenty of time for X. The maternal grandmother makes a comparison to how the mother acted before she was prescribed lithium medication. She says that it is difficult to explain, however in her view, the mother did not seem right and nobody knew what was wrong with her at the time. When asked about the comments in Dr J's reports, the maternal grandmother said the mother had a co-dependent relationship with unresolved issues from the mother's childhood. The maternal grandmother said further, that at the time when reading the report, she recalled looking at the mother and said “that's rubbish”. Both experienced a difficult period when the maternal grandmother was still in a relationship with the maternal grandfather. The maternal grandmother said that during this time, the mother was very angry with her as she thought that the maternal grandmother did not want to leave the relationship. The maternal grandmother explained that there was more going on at the time, which the children were unaware of. The maternal grandfather had access to guns and threatened to kill them if they left. The maternal grandmother said that she believed him. The maternal grandmother said she has spoken to the mother about their past experiences since then.
THE FATHER’S MENTAL HEALTH
Dr J assessed the father in June 2019. The father receives a carer’s pension and is not currently employed. He told Dr J he is looking to work but has previously been limited in his capacity to do so because of his caring commitments for X. He has a few friends and does not socialise often. Whilst his parents and siblings were supportive, the father rarely reaches out to them. Dr J records the father telling him that he has his own system of doing things and when others are involved it is “like a foreign system that messes me up”. The father said his main issue is anxiety.
Significantly, Dr J records the father telling him that for the past 18 months he was being treated by a psychologist, Ms O, fortnightly, which he found very helpful. This is false and has taken on some significance in the case. The subpoenaed records established that in fact the father last saw Ms O in November 2018 and only attended seven appointments.
When challenged about this, the father said that he had been to his GP many times seeking a further referral and had not received a response. He explained his GP said something about there not being funding. This is not consistent with Ms O’s records when she recommended a further referral be obtained. I have real doubts that the father made serious attempts to continue to engage with psychological supports and his answer does not explain why he told Dr J at the appointment in October 2019, that he was still seeing a psychologist, when in fact he had not seen her since November 2018. He misled both Dr J and the family consultant with respect to this period. It is consistent with the references that Dr J made in his report in relation to the father not complying with treatment in the past. Dr J recorded that the father was recently more motivated to address his mental health difficulties. When the ICL’s Counsel suggested to the father that he told that to Dr J he responded “I guess so”. The only inference I can draw is that the father did so deliberately. He would have been well aware that he had not seen her for several months at the time of these interviews.
The father agreed he read the report at the time it was released but has not read it since. When pressed, he conceded he had not complied with the recommendations of Dr J until two weeks prior to the trial. My impression is that the father did this because of the upcoming hearing. It is somewhat ironic the father complains about the mother not addressing her mental health issues, yet the mother has demonstrated far greater commitment and engagement with treatment than the father. I accept that as the father pointed out, the mother’s mental health issues are more serious, nevertheless it is apparent from the father’s own evidence and also his presentation that his anxiety impede him in everyday activities. It is consistent with Dr J’s comments that the father appeared depressed. The father showed a lack of insight when he referred to his mental health issues not impacting significantly on X. I think it shows a lack of understanding as to how when someone is suffering from mental health issues, such as depression and anxiety, this can impact on their responsiveness and emotional engagement as a parent.
The father said he is seeing another counsellor in Ms O’s office and when questioned further, he disclosed he has seen her for one appointment the week before the trial and had another appointment scheduled. He said he was being treated for “just a bit of anxiety”. The father denied being controlling and disagreed with Dr J’s characterisation of his insistence on changing the appointments with him three times as being an example of controlling behaviour. He also denied being controlling during his relationship with the mother.
Dr J recorded his impressions of the father’s insight was such that he wanted to blame the mother for most of the difficulties they experienced. Further, Dr J was of the view the father had limited insight into his own contributions to the breakdown of the relationship and that he also appeared to be unable to differentiate between his own needs and X’s needs. It could well have been part of his anxiety.
The father also had a difficult childhood with a grandfather who was violent. At age 15, he was beaten by a group of teenagers which resulted in him being hospitalised and thereafter suffering symptoms of post-traumatic stress disorder. He had episodes of anxiety and depression following the separation, which he appeared to have overcome.
At paragraph 52 of his report, Dr J states the following:
Mr Preston describes long standing symptoms of difficulties with sensory overload, especially loud noises, and a need for routine, all of which are identified by him as signs of Autism Spectrum Disorder (ASD). I have not carried out specific testing assessments to determine whether he meets the criteria for ASD but this remains a distinct possibility.
Dr J observed the father’s compliance with treatment has not been adequate. When he was prescribed with antidepressants, it was noted that he only took them sporadically at a sub-therapeutic dose. It was further noted by Dr J that the father also gave up counselling. He appeared as though he had been depressed for some years but that the recent psychotherapy with Ms O, has been more effective and the father has made an effort to be fully engaged in seeing her regularly in contrast to this compliance with previous treatments. He did not think that the father’s condition had fully resolved as his mood appeared lower and he was socially withdrawn. When taking any new medication, it is important to take them, in accordance with the directions particularly with respect to antidepressant medications as they generally do not work immediately and have to be taken for a period of time before knowing whether or not they will be effective.
The father strongly denied telling Dr J that he identified as having autism. Dr J said the father identified with some of the challenges X faces because he experienced similar issues as a child with respect to schooling, particularly concentrating and being able to stay on task. When questioned, the father answered that those are because of his ADHD. He had issues identifying specific examples of difficulties X experiences, particularly with respect to his autism and when given further opportunity to explain his understanding of X’s autism, he said he was mentally fatigued and needed to clear his mind in order to answer it. The father asked for a break during the proceedings and after, was better able to explain his understanding. The father was also able to refer to X struggling with understanding instructions and not having greater insight and awareness of things compared to other children. He also has difficulty retaining information received. He says X works quite well in groups and has taken on a leadership role at school in year two. Initially, when X started school he tended to play by himself. The father agreed that his autism makes it difficult for X to interpret people’s facial expressions and body language.
The father was able to name several children X plays with at school but notes he does not socialise with them outside of school. The father said he has contacted the parents about going to the park or organising other social activities, however he said they have either been busy or have not responded. My impression of the father is that he is socially isolated apart from spending time with his family. My impression is also that it would be difficult for the father to organise social arrangements such as the ones mentioned earlier. When the ICL’s Counsel asked the father if he thought it would be beneficial for X to have friends and socialise with them outside of school, he said that usually X is surrounded by his family and the father’s nephews and niece. He did not accept the proposition that X was having difficulty developing friendships, as a child of his age would have developed friendship groups outside of school. In response, the father talked about X interacting well with other children and used as an example how he attends swimming classes, but that response is somewhat missing the point of the question.
The father says that he spoke to his GP about it but that such investigation would be expensive. The father said he could not recall Dr J also stating that the father had complex PTSD and required a protected period of treatment with Ms O to address that. The father has not seen Ms O since November 2018 and the counsellor he saw from Ms O’s office the week prior to the trial, was for the purpose of assisting with his anxiety.
When it was put to him that the father denied ever telling him that he exhibited symptoms of ASD, Dr J said he recalled the father describing difficulties with sensory overload and need for routine. The fact that the father is now denying not only saying it to Dr J but denying any possibility of having that condition is congruent with Dr J’s impressions of the father that he is trying to paint himself in a better light, sees himself as responsible for his own treatment and does not identify as needing external help and support. It did concern him that the father has a pattern which appears to be continuing of engaging the treatment for short periods of time and then treating himself. Dr J quite properly pointed out that he has not seen the father with X and has not read the family report and so does not know what effect it would have on the father’s parenting capacity. Dr J thought that in situations where the father feels stressed, he may start to decompensate as the father does not have external supports he will find it more difficult and that level of stress will impact on his parenting capacity.
Orders 8 and 9 of the consent orders made on 25 March 2020 read as follows:
Within 14 days of the date of these orders the father attend upon his general practitioner for a referral to a qualified specialist practitioner to be assessed as to the possibility he may be on the autism spectrum and within 7 days of receiving the referral contacts the specialist rooms to schedule an initial appointment and if so assessed, promptly follow all directions of professionals engaging in helping to manage that condition.
The mother continue to attend for regular psychiatric reviews as recommended by her treating psychiatrist and follow all reasonable recommendations and undergo such treatment as may be prescribed by the treating practitioner.
The father made no serious attempt to comply with this order. The fact that this order was made, indicates that it was clearly a significant issue for the proceedings. The father does not mention his disagreement with Dr J and Ms M in his trial affidavit. It was only after being cross-examined and seeing the cross-examination of Dr J and Ms M, that he obtained an assessment during the weeks the trial was adjourned part-heard.
The father’s Counsel sought to tender the letter from the P Centre dated 11 May 2021. After hearing argument I allowed the tender but only with respect to it being evidence of the father’s actions. The father attended for what is referred to as “the Cambridge Autism Research Centre, Autism-Spectrum Quotient (AQ)”. I reject the submission by the father’s Counsel that this only became a major issue in the case during cross-examination. Not only was it the subject of commentary by both experts in their 2019 reports, but the consent order on 25 March 2020 illustrates that the parties and the ICL were of the view the father should be assessed.
It is not possible to place any weight on the substance of the letter due to a number of limitations. The author of the letter has not sworn an affidavit and is not available for cross-examination. Whilst the letter refers to the author’s qualifications, it does not refer to any expertise in carrying out the above assessment. The nature of the assessment is unclear as there is no explanation as to what test was applied and whilst the father’s scores are referred to, there is no explanation as to how those scores are arrived at and so on. The second paragraph of the letter sets out various conclusions the author has reached but not the basis for those conclusions. There is no reference to what information the author was provided with and the scope of his brief.
What is apparent on the evidence is that the mother has complied with treatment recommendations and proactively engaged with her treatment. I do not have concerns about her disengaging in such treatment in future. In contrast, the father misled both Dr J and Ms M with respect to his treatment. The father does not demonstrate a good history of engagement with treatment and lacks insight. It is unlikely that his attitude towards seeking treatment will change. Dr J described the father as being very devoted to X, with X forming the central part of the father’s life. This is not necessarily negative, however, the father could run into difficulties as X gets older and starts to individuate.
Dr J stated that it is always difficult to predict the future but his impression of the father is that he would find loss difficult and would find X’s increased individuation also very difficult to manage. Dr J found the father would require psychological support when this occurs and would benefit from psychological treatment ahead of time, which is why he recommended the father continue to receive psychological treatment.
In Dr J’s opinion, the father only has partial insight into any need for treatment or help for himself. The father does acknowledge that he becomes anxious and frustrated. He had the impression that the father finds interactions with people, including interactions such as co-parenting, quite difficult, and that he may become anxious and frustrated if people disagree with him.
Dr J said the father’s action in seeking further psychological assistance shortly before the trial raised the question as to whether he was seeking that treatment because of the family law proceedings rather than because he felt a need within himself for assistance.
Ms O’s treatment notes are exhibit 1. She refers to providing the father with cognitive behavioural strategies to deal with his anxiety and depression and to assist him in dealing with stress such as the child protection involvement or in the Court proceedings and challenging cognitive distortions. Her file note dated 30 October 2018 gives an example of the cognitive distortion being the “right to have control over what happens with X”.
The mother’s Counsel put to Dr J that the father was dishonest with him with respect to his ongoing engagement with Ms O. The father told him in June 2019 that he was seeing Ms O and the treatment was progressing well when in fact he saw her for seven sessions and ceased seeing her in November 2018. Dr J said the significance of this is really with respect to the father’s future which makes him more vulnerable to periods of anxiety and difficulties coping with stress and it would have provided him with considerable help to have continued to see Ms O.
COMMUNICATION BETWEEN THE PARENTS
The father was cross-examined about the arrangements he made for X to be circumcised. The father said he and the mother discussed a few weeks earlier because the ointment X was prescribed, had not cleared up his condition. The father was cross-examined about the text message he received from the mother on 19 January 2021 which is read as follows:
Hi Mr Preston. As per our conversation back on the 8th of this month at changeover, I was wondering if you have booked X a follow up appointment with his GP as to follow up issues he is still having with his foreskin and then not resolving with the prescribed ointment. We also discussed and agreed I’m getting X a referral from the GP to a specialist for further treatment options.
The father agreed the text message on 19 January 2021 was the last communication he received from the mother about this issue. The father then said that the mother had told him verbally, she agreed to X having a circumcision. The father also conceded that regarding the text message she sent him, it stated that she wanted more medical information and options. The father said he took X to a doctor for a referral and that the doctor suggested circumcision was the only further treatment. He did not communicate this to the mother. I have some concerns as to whether the GP actually said this. I do not suggest the father is lying. My concern is that he may have misinterpreted what was said. This would be consistent with his interpretation of the mother’s text.
Counsel for the mother suggested to the father that he did not raise the doctor’s recommendations with the mother and did not tell her the operation should proceed. The father said in response to the mother’s Counsel’s questions that he did not tell the mother, the operation would go ahead and at what date, “it was my belief that she was in agreeance with X being circumcised”. Further, he said that her text message led him to believe she wanted X to be referred further treatment, which is what he did. The father seemed unable to appreciate the concern of his complete failure to inform the mother about the appointment with the doctor and also the doctor’s recommendation. He agreed it was a significant medical procedure.
When Counsel for the ICL cross-examined the father about the issue, he conceded the mother’s verbal agreement was prior to the text message she sent him. The mother disputes ever verbally agreeing to X being circumcised. When Counsel for the ICL suggested to the father that the text message could not be interpreted as the mother agreeing to a procedure taking place, the father said it was how he read it anyway. The father’s response highlights his inflexible and somewhat narrow thinking. I accept that he was genuine in his response but that interpretation was not reasonably open on the plain wording of the text.
The ICL’s Counsel further cross-examined the father about the circumcision issue. The father said X saw a specialist a few weeks prior, after first saying the GP told him there was no other option.
The mother says that they briefly discussed the issue on 8 January 2021 at changeover, when the father asked how she would feel about X being circumcised. She commented that the cream had not helped and she would be open to the operation but as a last resort. She said she would like to see if other options were available and to be involved in the process. The mother says she did not hear anything further since sending the text message and had not received any further information from the father or noticed any problems when X was in her care.
Dr J was asked about the text message the mother sent the father about X being circumcised. Counsel asked if it surprised him that the father took the text message as the mother consenting to the procedure. Dr J said the father had taken the text messages to go further than it actually did. The father could have misinterpreted it. It was difficult for Dr J to assess whether or not the father was genuine when he said he perceived that text to be consenting or whether there was something else at play, and said it could be both. He thinks the parties will find it difficult to reach joint decisions without external assistance and he suspects that the father would become frustrated if someone disagrees with him, rather than he being able to use alternate ways of negotiating with an opposing point of view to work out what is best for X.
Dr C was cross-examined by the mother’s Counsel about his comment in his report of 15 April 2021 that X’s foreskin was normal. He said he conducted a physical examination. He thought that the mother could have been seeking a second opinion as he was examined previously via telehealth and it looked normal. The father was worried about it and had gotten an opinion from a general surgeon, his understanding was that the mother want a second opinion. Exhibit 6 is the letter that was tendered in evidence which briefly states that X did not require a circumcision unless the condition became a recurrent problem.
During cross-examination, the father said he was supportive of the mother having a role and being involved with X’s school and medical issues relating to X. He was then asked about paragraph 68 of the family report where he told the family consultant that he did not feel comfortable with X spending time with his mother because of her mental health. He said he currently still feels this way. The father did, however say that he did not think the mother having a couple of hours on alternate Sundays would be good for X, as it was significantly less time with his mother. He could not identify why that was important and said he was struggling with answering questions because of his anxiety.
Orders were made by consent on 4 November 2019 providing for the father to complete a Great Dads, Great Kids program and for both parents to enrol in a post separation parenting program. The Orders made on 25 March 2020 also provided for the father to, if he had not already done so, enrol in and complete a post separation program. The father acknowledged he has enrolled in a post separation parenting course but is yet to complete the course due to Covid-19. The father said he followed up and is enrolled in a course due to commence in September 2021. He further acknowledged that the family report writer also recommended he participate in such course in her report released in October 2019. The father completed the Great Dads, Great Kids program 2020. He annexed his completion certificate to his trial affidavit on 25 March 2020. He was asked whether he thought it was important that he participate in this course, to which he said he was willing to do it. That is not directly answering the question. He is enrolled in a course which is due to start in September 2021.
The mother gave specific examples of how she benefited from the post separation course she completed. She said she learned about importance of keeping communication friendly and focused on the child and also how it is important to keep the other parent informed of significant matters. She gave an example where the day before, X fell and grazed his knee. The mother then sent a text to the father explaining what happened. I am hopeful that the father will benefit from the course when he completes it.
THE FAMILY CONSULTANT
Ms M records the father admitting to her that he had a breakdown shortly after separation and overdosed on anti-depressants. As a result, he spent a short time in hospital.
She described the father as appearing genuine in his love for X and his desire for X to have stability but at times his thinking was fixed and when challenged he became defensive.
The father denied being financially controlling and claimed it was the mother who was financially controlling as well as being violent. When discussing the mother’s accusations of him being violent, he became distressed and expressed gratitude that the maternal grandmother as acted as mediator and expressed significant concern about X’s welfare.
The father disagreed with Dr J’s assessment of the mother and told the family consultant that the mother has a history of telling professionals what she wants and then does not follow through. Significantly, the evidence shows it is the father who does not follow through with medical advice and has not been fully frank and open with medical professionals.
The family consultant records the father telling her that he agreed with Dr J’s assessment of him that he might be on the autism spectrum and wish to get assessed. He also told her that he was working with his psychologist as he had a lot of unresolved issues from his relationship with the mother.
The family consultant commented that the mother appeared genuine in her desire for X to return to live primarily with her. Ms M recalled the mother appeared flat at the time which could have been indicative of the depressive episode or side effects from her medication. The mother acknowledge periods of estrangement from the maternal grandmother but said they have a strong relationship now. She identified the maternal grandmother as a key support for her.
The mother expressed concerns about the father using physical discipline on X.
The family consultant said that since returning to City G and her dosage of lithium being increased, the mother is doing better and acknowledges the mother sees her GP on a fortnightly basis to monitor her medication and her anxiety. The mother told the family consultant she could not afford to see a psychiatrist and as such, she is attending counselling with her psychologist. The mother told the family consultant she was working with her psychologist to develop a plan with respect to her bipolar disorder. The family consultant and said the mother recently suffered an episode of depression and said when she recognised the signs, the mother immediately sought help.
The family consultant disagreed with Dr J’s assessment of her relationship with her mother and thought it was exaggerated. The family consultant said the mother has been estranged from the maternal grandmother on two occasions only and during both, she suffered an episode of bipolar.
The mother said she was in regular contact with X’s psychologist and occupational therapist. She expressed concern about Dr C who she had not met and that he might be influenced by the father’s negative comments about her. That is reasonable given his report.
Both parents complained to the family consultant regarding their attempts to communicate with the other parent. In particular, the father said he felt like he is talking to a brick wall and the mother said that the father would talk down to her as if she did not know anything and that it was his preference that communication between the parties is now through the maternal grandmother.
Ms M said she did not think the parents’ relationship is likely to improve without professional support and noted that both make claims and counterclaims of abuse against each other. However without corroborating evidence, it was difficult to determine what accusations, if any, could be substantiated.
The family consultant said X appeared to have a good relationship with both parents and did not show any difficulty in transitioning between them during the assessment.
Ms M observed that if the father is on the autism spectrum, then some of the allegedly controlling behaviours that the mother complains of, could be due to that condition. Further, she said it may be that any disruption to his ability to maintain control over his life arouses his anxiety response which may have been poorly expressed by him and interpreted by the mother as being coercive control. She says that does not excuse the behaviour but could explain why it is not his intention to intimidate or control the mother. I think it is likely that there is an element of this. The father admitted to attending at the mother’s home shortly after separation and that appeared to stem from his grief from separating and his ongoing concerns about his relationship with X. The father admitted to some of his abusive behaviours. The mother did not admit to any abusive behaviours.
Both parents told Ms M they want to improve their communication. She noted communication is all the more important for X’s benefit given his special needs.
The family consultant said that given X’s diagnoses, it will be important that any parenting arrangement takes those into account. Children with ASD tend to respond well to boundaries, structure and routine. Large or small changes can be difficult for them.
The family consultant was cross-examined during the trial. After being updated as to the state of the evidence, she said that based on the fact that the parents communication had not improved, combined with X’s special needs, it may be worth considering that one of the parents has sole parental responsibility of X. They may be assisted by using an online parenting application but other than participating in joint counselling, she cannot see how the relationship between the parents would improve given the intractable nature of the discord between them.
Ms M’s confidence in the mother’s progress with respect to her mental health and her engagement with supports gives more confidence about the mother being able to provide stability for X and being able to safely care for him.
Ms M said that if X is progressing well and his professional health practitioners are confident that his needs are being met, then she would not necessarily say that X was better off in one or the other parent’s care. She was concerned however, about the father being non-compliant and deceptive about his own treatment. The mother’s Counsel put to Ms M referring to the father being somewhat deceptive about his own treatment is an understatement and that it is significant that he lied to both her and Dr J about receiving treatment from Ms O. Ms M agreed that it raised serious concerns for her when considering this in combination with the father only having just enrolled in a post-parenting program. She said it causes her concern that the father would not have faith in the professional assessments of X’s needs, although she noted the father appeared compliant about following directions from X’s practitioners. Certainly, I am satisfied that the father has been and will continue to be proactively engaged with X’s practitioners, following their directions and seeking assistance, compared to his attitude and insight into his own mental health.
In contrast, Ms M is now satisfied the mother has progressed with her mental health treatment and has appropriate supports in place. She also agreed that it was concerning the father does not place any weight on the treatment the mother has received with regards to her mental health, believing it to be solely for these Court proceedings.
Ms M also recalled the father telling her he may have ASD and that he had indicated to her that he could benefit from having this investigated. It was put to Ms M that the father denied ever saying to her and Dr J that he may have ASD. She was firm in her response and disputed this proposition. She was ultimately of the view that the father potentially has ASD and or other mental health issues. She clearly recalled the father telling her that. She agreed it is possible the father has undiagnosed ASD and/or other mental health issues. In my view, whether or not the father is diagnosed with ASD or some other condition, is less important and more weight should be placed on the father’s attitude towards receiving treatment for the mental health issues he does acknowledge. Whether or not the father has ASD or some other mental health difficulty or perhaps personality issues, the father has quite rigid thinking. People with ASD have very fixed thinking and become anxious with change so if X started to behave in a way the father could not control, it would be difficult for him to manage.
Ms M said that in contrast to bipolar disorder or borderline personality disorder, someone on the spectrum may become aware that they are on the spectrum. The issue then becomes whether or not they are able to implement strategies to manage the anxiety responses and how they interact with others and so in that case, the issue of compliance is more important than the issue of awareness.
Ms M was then asked about the father’s actions in not sending X to his last day of school last year. Ms M said she was concerned when she read about that in the mother’s trial affidavit and said the last day of school is often a very fun day and can be the last day with particular teachers. She said regardless of what reasons the father had, she was concerned he did that.
Ms M was asked to comment about her recommendations and whether or not she has changed them in light of further evidence. She said, notwithstanding her concerns about the father, her main concern is how X would manage a transition and the professionals involved in X’s care. She was also concerned about X having a recent diagnosis of oppositional defiant disorder which led her to wonder how well he is doing in the father’s care.
In this regard, I accept Dr C’s evidence that this is not in fact a recent diagnosis and that X has been doing well in his father’s care over the past couple of years. Ms M said she now no longer had concerns about X being in the mother’s primary care but had some concerns about him being in the father’s primary care. She further said that the parties would need to be guided by his treating professionals to assist X manage any transition.
One observation Ms M made in the family report was that she thought X may have been coached when he referred to his father hitting him everywhere, and said she reached that conclusion because his language was similar to what she read in the mother’s material. It is a serious allegation to make and without specific reference to what material she is referring to I do not place any weight on that. During cross-examination, Ms M then said that X was very unsettled during his interview, and that it was difficult to make any assessment of him or the veracity of much of what he was saying, and she said that in light of this, she guessed she agreed with the father’s observation that “X says peculiar things all the time”. I find this somewhat concerning, that rather than expressing this observation in the report, she expresses the view that the mother may have been coaching X.
Ms M said that she would be encouraging of the mother spending increased time with X if X remained in his father’s care subject to advice and guidance from X’s treating professionals. She would also want to be guided by his professionals with respect to what time the father should spend with X if he was placed in the mother mother’s primary care. She noted that it appeared to X that he and the father had a strong and affectionate bond and maintaining a meaningful relationship with him would be important.
When cross-examined by the father’s Counsel, Ms M stated that routine stability and structure are very helpful to children with ASD as one of the challenges for them is how to deal with change because it is impossible for life to always be about routine and structure. In relation to whether an immediate change or incremental change should be made to X’s care arrangements, the family consultant further re-iterated that she would need to be guided by his treating professionals.
Ms M said that if the father pulled X out of his last day of school due to his frustration with the mother, based on his view that there was a breach of the orders. It would be an example of his frustration interfering with X’s well-being.
THE FATHER’S ATTITUDE TOWARDS THE MOTHER
I have some concerns about how the father presented at the time of giving his evidence. He appeared flat and referred to his anxiety causing him difficulty answering questions. I accept that his anxiety contributed to his presentation and that being cross-examined is stressful for everyone, even without anxiety. It was clear that he struggled to say anything positive about the mother. The father was adamant in his evidence that there is nothing the mother can say or do to provide him with any assurance that she is no longer a risk to X. As I noted previously, the father appeared as inflexible and lacking in insight.
The father’s first trial affidavit contains much material that was inadmissible and as such he was required to file a further trial affidavit. That affidavit, filed on 16 March 2021, also suffered from issues relating to inadmissibility and also appeared very negative towards the mother and the maternal grandmother. For example, he describes the relationship between the mother and maternal grandmother as toxic and co-dependant and says that this toxicity spilled over into his own relationship with the mother. The father says the mother was aggressive and verbally abusive but does not provide any examples.
At paragraph 53 he says:
Since X’s birth, Ms Darville’s behaviour has been very damaging causing constant disruption and harm upon X’s life mainly after our separation.
At paragraph 54 of the father’s trial affidavit he says:
From what I can recount, Ms Darville has been an inpatient of a mental health facility on at least seven occasions during X’s entire life, which I believe proves her incapacity to successfully care for X.
Again the father does not provide any particulars. Certainly the mother was hospitalised in 2013 after she attempted suicide and again in 2018. I have not been referred to other hospitalisations in evidence.
The commentary in the father’s affidavit is significant as it demonstrates the father’s attitude towards the mother. I note however, that this is the amended affidavit. The father is keen to present a picture of the mother being unstable, unreliable and dangerous to X. This has not been established on the evidence before the Court.
The mother’s Counsel suggested to the father in cross-examination that the mother has progressed extremely well with respect to her mental health since June 2018. Significantly, the father stated that he does not believe that her progress is genuine. When it was further put to him that the mother’s psychiatrist says she is doing well, attending appointments regularly and taking medications as recommended, the father responded that he believes it is all for the purpose of the court hearing. I do not accept that this is the case. It would be extremely difficult to maintain such a charade for a lengthy period. The father’s answer is illustrative of his rigidity in thinking.
The father believes himself to be a good parent and accepted that part of being a good parent involves supporting the relationship between X and his mother. However, he said that he did not believe the mother had the capacity to care for X for any longer period of time than she has currently does. His proposal actually reduced the mother’s time slightly by proposing that the mother’s time starts on the weekend from 5:30pm on Friday rather than after school. The father denied that this was because he did not want the mother to go to X’s school. In fact, later in his cross-examination, the father admitted he is still uncomfortable with the mother spending time with X.
The father acknowledged there being at least two occasions where he has taken X’s bag home from school so X would not have it on the weekend with his mother. The father said he did this so X did not have to carry the bag around. The father did not think that there was any issue with respect to the message that taking the bag might send to X. Further, he did not think it would significantly affect X with respect to his need for a regular routine due to his autism. The father emphasises the importance of routine for X. It is more likely that the father preferred the mother not to have X’s school bag.
The father was cross-examined about the dispute that occurred with respect to the mother’s time during the last week of school in 2020 and the father’s actions in keeping X at home. In answer to the suggestion that the last day of school is a fun day, the father said it is only to “clean up” and the principal said there would not be much happening and parents elect to keep the children at home. He denied doing this with the intent of the mother having a meal with X on the Thursday night, which was the night before the last day of school. The orders provided for this to occur. In response, the father said he thought it was too disruptive for X and he wanted to minimise the changeovers as he would be spending time with the mother on Friday.
Order 5 of the interim orders made on 25 March 2020, by consent and considered in chambers, included the following spend time arrangements:
5.The child spend time with and communicate with the Mother as follows:
a.Each alternate weekend from the conclusion of school on Friday, or from 3.30pm on a non-school day, until 5.00pm Sunday;
b.Each Thursday, from the conclusion of school, or from 3.30pm on a non-school day, until 6.00pm that same evening;
c.During the term school holiday periods, for a period of one week, commencing 3.30pm on the first Thursday of the holidays, until the following Thursday at 3.30pm, with the usual weekend time to resume on the following weekend, for example, resuming on 10th April 2020 in the Term 1 school holidays;
d.During the holiday period referred to above, the usual Thursday afternoon time be suspended.
I note the following:
·The parties asked the Court to make these orders by consent.
·The orders provide for X to spend time with the mother for a few hours each Thursday.
This essentially means that in one week, the mother sees X for a few hours and the next day collects X from school to spend the weekend with her. These orders extended the mother’s time with X.
The orders made on 6 February 2019, also by consent, provided for the mother to have time with X each Sunday from 10AM to 4PM and each Thursday from after school until 6:30PM. The significance of this is that the arrangement for X to see his mother every Thursday had been in place for almost 2 years at the time of the dispute.
In his trial affidavit the father says he was concerned about the number of handovers X would have to navigate in the week before Christmas and so he texted the mother proposing that she have care of X from 18 December to 25 December 2020. As the father does not annex the text to his affidavit, I do not know if he proposed that the mother’s time on 17 December 2020 being the Thursday, be suspended. The mother annexes part of a text exchange with the father where it is clear parties disagreed about the interpretation of the orders. The mother annexes a series of correspondence between the lawyers about this issue. It is clear from the correspondence the father’s position was that the mother’s time on the Thursday afternoon should be suspended as it is suspended during school holidays and his view was that X would be confused by seeing the mother for a few hours on Thursday and then returning the next day to the mother’s home for a week. The mother’s lawyers responded to that pointing out that 17 December 2020 was during school term. The mother’s lawyers also pointed to the school’s newsletter, which advised that the last day of school being 18 December would finish at 1:30PM. Despite this, the father was insisting that the mother could collect X at 3:30PM. The mother expressed concern about the tone of the several heated messages that she received from the father about this issue and stated that she would reluctantly agree to forgo the Thursday afternoon.
The mother decided to follow the ICL’s proposed solution, that is, for the mother to attend school at 1:30PM on 18 December 2020 to collect X. The mother attended school at this time, but upon arrival was informed that the father had removed X from school the day before. It was further indicated in the correspondence that the father forgot to take X’s medication, which his school asked the mother to take with her.
It is clear that the text exchanges annexed to the mother’s trial affidavit does not include the complete chain of correspondence. It is most unfortunate that considerable time and effort was spent with respect to this dispute. The father’s approach to this issue is concerning. It is difficult to see how it would have been disruptive to X to see his mother on Thursday for a couple of hours, and then to have overnight time with the mother, with the next day being the first week of school holidays, given that this was a pattern that would occur frequently for him with respect to alternate weekends during school terms. I am satisfied on the balance of probabilities that the father deliberately kept X at home in order to frustrate the mother’s time. If he had not formed this intention he would not have removed X’s belongings from school on the Thursday as he could have done so when he took X to school the following morning. That action was not in X’s best interests and was not a child-focused decision by the father. The father’s actions would have caused more disruption to X, not less. It illustrates the father’s limited capacity to be flexible and deal with disputes constructively. I do not think that this is an isolated incident. The father’s interpretation of the mother’s text about X being circumcised and his subsequent actions also illustrate this period. It also permeates the father’s written and oral evidence.
The mother’s Counsel suggested to the father that his response about resolving the dispute was to simply not send X to school on the last day. The father denied this. He also denied collecting all of X’s paintings and schoolbooks on Thursday because he was not intending to send X to school the following day. The father conceded that he did that but said it was not with that intention. His answer reflects his limited insight.
X’S SPECIAL NEEDS
Ms Q is X’s psychologist and has been treating X since 2018. Typically she sees X every 2 to 3 weeks. Currently she is seeing him weekly as he participates in an eight week social skills group course at school. Ms Q was very clear as to the scope of her expertise and her role. She works with X to address his ASD and to meet his NDIS goals. Those goals include X being able to follow instructions, to perform non-preferred tasks and to socialise more in the playground. X has been diagnosed with ASD level 2. She explained that this is a reference to the DSM 5 which refers to 3 levels for ASD and so X is in the moderate range.
Ms Q said both parents are positively engaged with X’s therapy. The father is actively involved in working on his NDIS goals, he asked questions and follows up on things. The mother also showed similar interest and engagement. The mother regularly makes appointments and prepares questions for Ms Q in an effort to assist X. Recently she asked Ms Q to prepare a visual social calendar for X and she has been asking a lot of questions about how she can help X at home.
Ms Q prepared a psychological assessment of X dated 1 March 2019 which is annexed to her affidavit. The father annexed more recent reports from her to his trial affidavit being a letter dated 24 February 2020, which referred to X continuing to attend regular therapy sessions via telehealth during Covid-19 lockdown. She notes that the father actively participates in the sessions, asks questions regarding X’s development and requests feedback about how to manage X’s behaviours.
In her reports, Ms Q refers to the father completing a baseline parent report of strengths and difficulties questionnaire with respect X’s challenging behaviours. It is a brief emotional and behavioural screening questionnaire covering five areas being emotional symptoms, conduct problems, hyperactivity, peer relationships problems, prosocial behaviour and impact score. When first assessed, he scored very high in all of the scales. On 18 March 2020, he scored in the average range on all of the scales and again on 10 February 2020, scored an average range on all of the scales. The father reported that he felt that therapy together with consistency retain and predictability and at home had improved X’s behaviours.
In a further report dated 10 March 2021, Ms Q noted that X had a difficult start to the school year. At times, he hid under tables during class and did not engage in schoolwork. The father said X was finding the year two school work difficult and was not receiving any education support in the classroom. She thought that the disruptive start to the year could be due to a combination of factors including returning from remote learning, a new classroom, new teacher and lack of education support during class. X had the same teacher and education support in the classroom the past two years. She noted that X was keen to join the social skills and community participation group run by children therapy services at the beginning of term two.
Ms Q said that any change is difficult for a child with ASD but not impossible. X will need support strategies to adjust to those changes. One of those strategies would be using a social story to prepare him for the change. In her view, there would be no benefit to X in having an incremental transition rather than one major transitions as any change would be difficult and there would be no particular benefit of one over the other. Ms Q said the preparation is the key and that while any transition will be difficult for X, it is important to note that change is a part of life. Ms Q is well-placed to do that work with X and his parents. It is part of the work that she does with X, for example, when there are changes at school. Generally speaking people with ASD do not manage change well as it is a trigger for them. The important thing is providing them with supports to help them cope with those changes.
Ms Q emphasised that any transition will be difficult for X and will require the same strategy whether it be gradual change or immediate. She said that they would need 2 to 3 weeks to prepare a social story and work on that story with X and his parents prior to the changes being made.
I was impressed with her evidence and as I indicated during the hearing I will order that the changes take place in four weeks from the date of the orders so the preparation work can be done with X and his parents.
Dr C is X’s paediatrician. He has been treating X since 3 December 2018. He sets out X’s diagnoses in his report dated 2 February 2019 X with the following conditions:
(a)Autism spectrum disorder level 2;
(b)Attention Deficit Hyperactivity Disorder of the Combined Form;
(c)Generalised Anxiety Disorder with characteristics suggesting PTSD;
(d)Insomnia
(e)Restrictive eating.
Dr C annexed two brief reports to his affidavit filed on 5 May 2021. The father annexes a letter from Dr C dated 4 March 2021 in his trial affidavit, where he refers to X’s diagnoses which now includes oppositional defiant disorder. In oral evidence, Dr C stated that oppositional defiance disorder is referring to a challenging behaviour, as opposed to a separate or new diagnosis. He said it is not a medical diagnosis, rather it is short hand for a challenging behaviour. He goes further to say that it is part of his autism spectrum disorder. Dr C stated there was a lot of crossover with X’s disorders and that they are all frontal lobe disorders. The overall umbrella is autism spectrum disorder but underneath that there is inevitably some anxiety and attention difficulties.
Dr C said he has seen X interact with both his parents and has a good relationship with them both. He has observed the interactions both in person and via telehealth. He said it appeared to him that X is stable regarding his behaviour, self-care and respect for authority when in the care of both parents. In his view the quality of care by the parents seems equal. Even though children with ASD struggle with changing environments, he thought that because X has good relationship with both parents, he would cope with whatever arrangements the Court deems appropriate. Dr C agreed with Ms Q’s recommendations of having his psychologist involved in using social stories to assist X with the change. At eight years old, X is mature and old enough to intellectually understand what is being discussed but would be unable to conceptually visualise that change in arrangements.
Dr C said he has been pleased with X’s progress. He said X has a really nice nature and settled into kindergarten reasonably well and then into school and has become more familiar with the teaching environment from year to year. Typically for children with ASD, middle primary school becomes harder as the work is more difficult and the social interactions become more complex. This can spin off into the home environment where the child plays up and is more fractious. In Dr C’s view, X has followed a typical pattern and is not above average in terms of progress for someone with such complex needs. He has a stable support team around him, including his parents, the school and his therapy team. It is normal to there to be challenges as X becomes more independent.
I note that had both Dr C and Ms Q not been called to give evidence on the last day of the final hearing, it might not have been as clear to the Court that both parties were highly engaged and committed to X’s ongoing treatment.
SUBMISSIONS
Independent Children’s Lawyer’s Submissions
The ICL supports a change of residence and proposes the orders set out in the ICL’s case outline, where X lives with his mother for 10 nights a fortnight and the father for 4 nights a fortnight.
The ICL submitted that Ms Q’s evidence was impressive. She will be able to manage preparing X for the change in his living arrangements and provide whatever support X and his parents need. Ms M’s evidence was very different to that of her report reflecting passage of time and the evidence given at trial.
The ICL submitted that the mother showed good insight into her mental health and has good supports in place. The mother also shown a capacity to engage with X’s doctors.
In contrast to the mother’s progress, the ICL is concerned about the father’s lack thereof. The views of the father towards the mother is concerning. The father’s actions in seeking an assessment as to whether or not he has ASD whilst the trial was part heard was illustrative of the father seeking to deal with a criticism of him at trial rather than a desire for assistance. It is similar to his actions in recently engaging with a psychologist. It was clear from the father’s evidence that he is not open to receiving a diagnosis and engage in treatment. The ICL was troubled by the false evidence the father gave to Dr J and Ms M with respect to his engagement treatment and it is unlikely that he will engage with treatment in the future and is likely to remain as he is now.
The ICL was also troubled by the father’s evidence that the mother has only engaged in mental health services because of the Court proceedings. The ICL was further with respect to the father’s view that he does not think she could have benefited from telehealth appointments and that there is nothing the mother can do to show the father she is no longer a risk to X. The ICL submitted that it raises real concerns about his capacity to facilitate the relationship between the mother and X.
Despite concerns as to how the parties will be able to effectively exercise equal shared parental responsibility, the ICL continues to propose such an order. However, the ICL does acknowledge that it may lead to further proceedings if the parties are unable to reach agreement.
The ICL submitted that both parents have demonstrated good capacity to manage X’s emotional and intellectual needs, but given the father’s difficulties was social engagements, the mother may be better able to manage X’s relationships which will be difficult for X. This is likely to be more challenging as X gets older.
The ICL submitted that whilst there are allegations of family violence during the parties’ relationship and during the mother’s relationship with Mr D, the allegations are historical and whilst family violence should never be diminished, it is not a significant factor in this case. I accept this submission.
The mother’s Counsel continued to seek orders which are set out in the mother’s case outline. It was submitted that the mother is not untested in the area of arranging and engaging with medical professionals for X’s needs. It was submitted that she did so when X was very young with the maternal health care nurse, paediatrician and developmental psychologist and provided those reports and information to the father.
The real issue is with respect to the possibility of the mother suffering a relapse. Since the manic episode in June 2018 and hospitalisation, the mother has been fully compliant with all treatment requests, is well-engaged and has shown great progress. The reality is that bipolar is a lifelong condition. Since 2018, the mother has been properly diagnosed and placed on an effective medication regime with a good support team in place. The mother has shown good engagement and insight.
The maternal grandmother is another support for the mother. The maternal grandmother can be relied upon to report any concerns to the appropriate authorities as she did in June 2018 and the Court can be confident that the maternal grandmother will place X’s needs ahead of the mother’s. The maternal grandmother was forthright in her evidence and particularly forthright about difficulties that she has had in her relationship with her daughter. It is also of significance to note that the fact the mother has obtained part-time employment during the Covid-19 pandemic is an indication of her progress.
It was significant that Dr C commented that the quality of care the parents give X is equal. The difficulty with leaving X in the father’s primary care comes down to the strong pattern of the father of denial and avoidance. The father is resistant to seeking assistance for himself. The father was clear in his evidence that he still is not comfortable with the mother spending time with X. The father is entrenched in his negative view of the mother. The issues surrounding X needing to be circumcised is indicative of the father’s limitations in being able to address major issues regarding X with the mother, and reflects the rigidity in his thinking and attitude, and his avoidance of conflict. The father keeping X out of school the last day of term was indicative to his response to disputes with the mother and it was an example of him putting his negative attitude towards the mother above X’s best interests.
Dr J’s evidence to the effect that the father somewhat over identifies with X is concerning. I note that as X become is older and seeks to individuate, the evidence provided by Dr J suggests he will become more challenging which the father will find difficult to manage. The mother would be better placed to manage these growth changes.
Father’s Submissions
The father’s Counsel points to the fact that the mother has not always facilitated X’s relationship with his father, particularly in the first 14 months of X’s life. This is relevant when considering the fathers willingness and capacity to facilitate X’s relationship with the mother. With respect to the issue of X being circumcised, the father did not simply go off on a frolic of his own. Whilst I accept that submission what it demonstrates is the father’s rigidity and limited capacity to engage effectively with the mother with respect her decision-making for X’s benefit. I have previously said the text message the mother sent the father could not reasonably be interpreted as her consenting to the father arranging for X to be circumcised and not needing to consult with the mother any further. It is somewhat concerning that despite a very clear request for further consultation and information by the mother, the father, made further medical appointments and did not involve or inform the mother of them. I have more confidence in the mother’s ability to involve the father in decision-making for X in the future.
The thrust of the father’s Counsel’s submissions was that X has been progressing well in the father’s care since June 2018. Given this, whilst the father accepts that the mother’s time should be increased there is no justification to take the risk of reversing the care arrangements, which would be a significant upheaval for X. He pointed to the fact that X has been seeing his mother regularly whilst in the father’s care and one incident in three years being the last day of school should not detract from that. He further submitted that there is a difference between a change of residence and increase in the mother’s time and that changing residence would cause an unnecessary stress on X.
The father’s Counsel submitted that the mother’s mental health is only a concern in so far as it represents a risk to X and impact on her parenting. He submitted that with respect to the discussions surrounding the father’s mental health, it is not evidence as to how this affects his parenting. He goes further to suggest that, in contrast, there was very clear evidence as to how the mother’s mental health affected her parenting of X. The father’s Counsel submitted that it is likely the mother will have a further episode in the future and put it as, why take that risk when what is known is that X is doing well in his father’s primary care. He also said with respect to the maternal grandmother that whilst the relationship with her daughter seems to be good at the moment, the previous periods where they have been estranged are of concern. Particularly, he was concerned about whether the mother would follow the maternal grandmother’s advice given that in the past, with the maternal grandmother opposed her proposed move to New South Wales, and that the mother falsely reported to police that her mother was threatening her.
With respect to the above submissions there is a difference in the two positions of the parties. With respect to the mother, there is no doubt that in 2018 the mother’s mental health was such that X would have been at an unacceptable risk if left in her care. The father refers to her long standing history of mental health problems, but it is important to note in her history is that she was only diagnosed with bipolar disorder in 2018 and since then she has received proper treatment, is successfully responding to medication and is engaging with her medical practitioners. There is always a risk that she will suffer another episode. That can never be eliminated. The picture of the father’s mental health is less clear.
The father’s submissions did not engage with the long-term concerns with respect to the father and his capacity to manage X’s behaviour as he gets older. The fact that there is not a diagnosis for the father does not detract from the father’s case. The father too on his own admission said that he had mental health issues. He has not had as serious issues as the mother. But in contrast to the mother, the father shows limited insight into his mental health, has resisted treatment and has actively lied to the experts with respect to his engagement in treatment. The label is not important. His actions mean it is unlikely that he will actively seek assistance in the future. This combined with his rigid thinking and negativity about the mother not only raises real concerns about his capacity to facilitate the mother’s and X’s relationship, but also how he will effectively manage X’s behaviour as he gets older, particularly if he starts to rebel against his father.
The parties seek identical orders in their case outlines for the mother to continue to see her psychiatrist. None of them seek such an order as being conditional upon compliance with other orders. Recently in Oberlin and Infeld [2021] FamCAFC 66, the Full Court of the Family Court has again referred to limitations on the Court’s powers of making these types of orders. I accept it is important that the mother continue to be engaged in her mental health supports. I am confident she will do so. The father would also benefit from engaging with mental health supports but I am not confident that he will do so.
LEGAL PRINCIPLES
The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (Cth) (“the Family Law Act”). The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.
The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). Section 65D of the Family Law Act gives the Court the power to make a parenting Order which is defined by s.64.
In deciding whether to make a particular parenting Order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), being the additional considerations.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Family Law Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates, are consistent with the first two objects of Part VII. As stated in s.60B, the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405.
There are 13 additional considerations which are set out in s.60CC(3). X is young and has not expressed his views about his preferred living arrangement. He has a close and loving relationship with both parents.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any Order I make is consistent with any family violence Order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the children’s best interests being treated as paramount.
Section 61DA(1) provides that when making a parenting Order, the Court must apply a presumption that it is the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence (s.61DA(2)). The presumption may also be rebutted if the Court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility (s.61DA)(4)).
If the presumption is not rebutted and I accept it would be in the best interests of the children to make an Order for equal shared parental responsibility, I am then required by s.65DAA(1) and (2) to consider whether to make Orders that the children spend equal time, and if not equal time then substantial and significant time with each parent.
For a parenting Order to involve the children spending substantial and significant time with a parent, s.65DAA(3) requires that it must at least provide for the children to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the children’s daily routine and on occasions and events that are of particular significance to the children and for the children to be involved in occasions and events that are of special significance to the parent.
In MRR v GR [2010] 240 CLR 461, the High Court found that s.65DAA(1) requires a Court to consider both whether the best interests of a child is served by an order for equal time and that it is reasonably practicable for children to spend equal time. Both elements must be present in order for a Court to make an order for equal time. At paragraph 13 of the judgment the High Court said:
Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words in which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each court has the power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subs (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
The High Court also addressed the relationship between section 65DAA(1) and section 61DA(1) at paragraph 15:
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
CONCLUSION
The parties and ICL seek an order for equal shared parental responsibility, despite the parent’s difficulties in communication. The parents can improve their working relationship, including their communication, through counselling.
I am satisfied that the presumption should apply. Both parents have shown great interest and commitment to ensuring X’s needs are met. Both parents still have their vulnerabilities.
The reality is that it is impossible to discount there being any relapse of the mother’s mental health whether it be a depressive episode or a manic episode. What is important is how that risk is ameliorated and I am satisfied that the mother has shown good insight into her mental health and the importance of remaining engaged in her treatment and relying on the supports that she has from her psychiatrist, psychologist GP and also her mother. The mother has seen the benefit of the difference within herself when properly diagnosed and receiving medication that assists her condition. Even if X was to remain living with his father and spend increased time with his mother, the Court cannot rule out the possibility that the mother will become unwell when X is in her care. That risk simply cannot be eliminated. It is however ameliorated by the supports that the mother has in place which mean it is likely that if the mother’s mental health does deteriorated she will be given appropriate assistance much earlier than what occurred before. It must be remembered that whilst it is clear the mother has suffered from mental health issues since she was a child, the real change appears to have occurred when she was diagnosed with bipolar disorder. The evidence suggests that this only occurred in June 2018.
I am unable to accept the father’s evidence that the father’s mental health issues have not been shown to have any impact on his parenting capacity. It seems clear on the evidence that the father has some mental health issues and may have some personality issues or other undiagnosed conditions. The fact that the father has not been diagnosed with ASD is not a critical factor, as a diagnosis or label is less important than the behaviour and attitude.
I have no doubt that the father is sincere in his beliefs that he is better placed to care for X. The father has demonstrated his commitment to X and his willingness to step in when the mother was unable to care for him. The father has also shown a commitment and willingness to engage with X’s medical practitioners and to not only follow their advice but to proactively engage with them seeking the best outcomes for X. This is particularly clear after hearing from the experts for both parents and I have no doubt that both parents will continue to do so.
The father’s unilateral actions in changing X’s school is not of such concern in circumstances where that occurred at the time when he had taken full-time care of X and the mother was significantly unwell. What is more concerning is the father’s attitude towards the mother and his limited capacity to deal with disagreements. His actions in keeping X home for the last day of school is a clear example. The father’s concerns that X seeing his mother for a few hours on Thursday and then being collected by the mother from school the next day to spend the first week of school holidays with him, shows a real lack of insight and flexibility in thinking. This is because the father’s actions and the father attending the school on Thursday and taking home X’s school bag is indicative of him deciding in advance, not to send X to school the last day of term. The father’s actions in fact caused more disruption to X than the potential disruption that he was concerned about. The last day of school term, whilst often not involving formal lessons and education in that sense, can still be an important ritual involving celebrating the end of the school year and saying farewell to fellow students and teachers. It can involve rituals that students prepare for in advance and look forward to.
The father’s own evidence is that his main difficulty is dealing with anxiety. Dealing with change and unexpected challenges can heighten an individual’s anxiety and increase the need to seek to control whatever they can in their environment given that there is so much that is outside of their control. It is not unlike the difficulties that X faces dealing with changes although to a much greater degree. Of course many people deal with anxiety, depression and other mental and other health conditions and that does not necessarily impact on their parenting capacity. The real contrast between the parents at this stage is the father’s lack of insight and resistance to engaging in treatment for himself against the mother’s active role in engaging with her practitioners and treating her mental health. The fact that the father has focused on X’s care exclusively since X came into his primary care and not sought to work on it is not necessarily a negative. The concern relates more to looking long-term and certainly the impression of the father is that he is somewhat socially isolated and may himself struggle with friendships. It was clear from the father’s evidence that he has support from his family and regularly engages with them and X regularly sees his cousins. I do have real concerns as to how the father will manage as X becomes older and seeks more independence and engagement in friendships and peer relationships. The task of the Court in matters such as this is considering the child’s long-term welfare as well as short-term welfare.
All of the parties, albeit with some reservations, seek an order for the parents to exercise equal shared parental responsibility. The Court is then obliged to consider whether or not an equal time arrangement would be in X’s best interests. Significantly none of the parties seek an order for an equal time arrangement and given the need for the parties to be able to communicate well and have respect for each other for such an arrangement to work, I am comfortably satisfied that the decision must address whether or not X should remain in his father’s primary care with an increase in time with his mother to say four nights a fortnight, or orders for X to return to his mother’s primary care and spend four nights a fortnight in his father’s care, as well as half school holidays.
Having weighed up all of the evidence, I am satisfied that it is in X’s best interests to return his mother’s primary care.
It is significant that what was very clear from the evidence of X’s doctors is that unlike what is commonly the case for many children where a series of transitions and incremental changes to parenting arrangements is easier for children to understand and adjust to than one major change, this is not the case for X. In fact introducing a series of transitions is simply to introduce a series of challenges for X rather limiting it to one. I accept the evidence that transitional change or a major change would be just as difficult for X to manage. In those circumstances considering all of the evidence, I am satisfied that it is in X’s best interests to make orders for X to live primarily with his mother for 10 nights a fortnight during school terms and spend four nights a fortnight from Thursdays after school to Mondays before school with the father. In order for that to occur, the necessary preparatory work must be done to assist X managing the change, which I accept will be challenging for X, but probably also both his parents and as such, should not take place for 4 weeks to enable that work to be completed as priority.
I certify that the preceding one hundred and eighty-four (184) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Harland. Associate:
Dated: 7 July 2021
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