Ralph and Medlock

[2010] FamCA 721

FAMILY COURT OF AUSTRALIA

RALPH & MEDLOCK [2010] FamCA 721

FAMILY LAW – CHILDREN – Interim parenting orders – Where the child has been diagnosed with severe autism by experts – Where the father is sceptical of the child’s need for a high level of care – Where Notices of Child Abuse have been filed by the father – Where some parts of the mother’s evidence seems to be corroborated and supported by expert reports – Where the father has made complaints to government departments and other agencies and organisations – Where a risk arises if the father spends unsupervised time with the child – Order requiring the father to forward any complaints only to the Independent Children’s Lawyer – Father not to spend any time with the child until further orders – Mother to have sole parental responsibility

APPLICANT:

Mr Ralph

RESPONDENT: Ms Medlock

INDEPENDENT CHILDREN’S LAWYER: Ms Barbara Fox, Solicitor

FILE NUMBER: BRC 6966 of 2009

DATE DELIVERED: 29 July 2010

PLACE DELIVERED: BRISBANE

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 29 July 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: The Applicant Father appearing in person

COUNSEL FOR THE RESPONDENT: Mr Holloway, Solicitor appearing for the Respondent Mother

SOLICITORS FOR THE RESPONDENT: Holloway Jenkins, Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Barbara Fox, Solicitor appearing as the Independent Children’s Lawyer

Orders

IT IS ORDERED THAT:

1. The proceedings be adjourned for case management review to 9.30 am on
   4 November 2010 at the Brisbane Registry of the Family Court.

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The child, K born … August 1999, live with the Mother.

2. The Mother have sole parental responsibility of the child.

3. Paragraphs 1 to 9 inclusive of the Orders of Principal Registrar Filippello be suspended.

4. If the Father has any complaint about the Mother’s treatment of the child he is not to complain to any Department or anyone in authority.  He is to complain only to the Independent Children’s Lawyer with any supporting documentation regarding the complaint.

5. The Father is not to institute any further applications on any child related issues unless he receives on an ex parte basis, permission from the Court to institute such proceedings.

6. The Mother is permitted to remove the child, K (a male) born … August 1999, from the Commonwealth of Australia.

7. The Australian Federal Police remove the name of the child, K (a male) born … August 1999, from the Airport Watch List at all points of international arrivals and departures in Australia.

8. The Marshal of the Family Court of Australia and the Commissioner and all Federal Agents of the Australian Federal Police and Officers of the Police Forces and Services of the various States and Territories are required and empowered to take all necessary steps to give effect to these Orders.

IT IS FURTHER ORDERED THAT:

1. Pursuant to s 62B and s 65DA(2), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Ralph & Medlock is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6966 of 2009

MR RALPH

Applicant

And

MS MEDLOCK

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The parties to this litigation are the parents of a 10 year old boy.  He turns 11 soon.  The father, who is the applicant, seeks orders that the child live with him and that he see his mother during daylight hours once a week.  The mother seeks an order that the child live with her and spend no time with the father.  The medical reports would indicate a severe level of autism.  There is material before the court which would indicate that, in some instances, the father is not accepting of the medical diagnosis as to the severity of the level of autism the child is said to exhibit.

2. On 17 December last year, the Principal Registrar, for reasons she gave at the time, made orders in the following terms.

   1.Paragraphs 2 and 3 of the orders of Jarrett FM made 13 October 2009 be varied in accordance with order 2 of these Orders. 

   2.Subject to the father complying with the orders 3 and 8 of these orders, the father spend time with the child as follows:

   (a)The commencement date for the father to spend time with the child is deferred pending the development of a transition program facilitated by Dr [F] and the organisation known as [M Organisation].

   (b)The time spent by the father with the child is to increase incrementally from periods of more than 45 minutes and gradually increase to four hours each Saturday.

   (c)The initial periods of time spent by the father with the child are to take place in a location which is familiar to the child, such as a park, and to occur in the presence of the child’s carer.

   3.The father was to immediately commence therapy with [M Organisation] or such other organisation as directed by the independent children’s lawyer and attend upon Dr [D] of the [C Organisation] together being the therapy, the object being to educate in form and assist him to accept and accommodate the special parenting needs of the child.

3. I am mindful when considering all of this material that, whilst the child was born in 1999, separation was when the child was nine years of age, and so the father must have some level of experience of the child in his care.  However, exhibit 1 is on the letterhead of the organisation, M Organisation.  It is a report from a Dr F, who is a clinical psychologist specialising in this field. Under the heading Purpose of Report, she commences by saying:

   To provide the Family Court of Australia with information regarding whether, after attending a series of appointments at [M Organisation], a specialist clinic for Autism and Asperger’s Syndrome, [the father] has been able to demonstrate an acceptance of his son, [K’s] autistic disorder and a commitment to parent [the child] in a way which appropriately and properly met his needs. The written request dated 10 January 2010 from Independent Children’s Lawyer, Mr Fred Lang, was a result of court orders dated 17 December 2009.

4. Under the heading, Details of Contact:

   [The father] attended a total of five one hour appointments at the [M] Clinic between 4 November 2009 and 2 March 2010.  [The father’s] first appointment occurred prior to the implementation of the court order dated 17 December 2009.

5. And then she sets out the various dates that the appointments were held, and noted that at all times, he was accompanied by his partner, Ms R.  Under the heading, Aims of the Sessions, she notes:

   The aim of the sessions were to assist [the father] in better understanding his son’s diagnosis of autistic disorder and how best to manage this.  I plan to discuss some of the challenges experienced by individuals with autism, such as coping with change, difficulties with sensory processing, and emotional and social understanding.  I hope to discuss evidence-based strategies to assist in the management of [the child’s] challenges, including providing information on visual schedules, referral options for speech and occupational therapists as well as basic emotional education and management programs and ways to enhance [the child’s] social skills.

6. Under the heading, Conclusions, on the penultimate page of the report, she noted:

   [The father’s] acceptance of [the child’s] diagnosis of autism was not consistent over the five sessions.  Over the course of the appointments, there were times when [the father] and his partner, Ms [R], presented as being interested in listening to the information, advice and strategies.  The couple demonstrated an effort to research and obtain information to assist [the child] in between some of the sessions.  The session on Tuesday, 2 February 2010, was perhaps the most in line with the court order.
   [The father] and [Ms R] appeared to listen to ideas to assist [the child] and participated in discussions around this.

   At other times, they instead wanted to speak about their dissatisfaction with the legal process, the futility of the sessions with me, and their concern for [the mother’s] parenting.  At times they seemed to listen when I was providing information or advice but find opportunities to dispute what I have said or indicate that it did not apply to [K].  At the end of the strategy focus session on February 2^nd, [the father] inquired about genetic tests for autism.  This may indicate natural puzzlement about why his son had developed autism or may indicate continued doubts about the diagnosis.

   When it was explained that autism tended to run in families, [the father] stated there was no history of autism spectrum disorders in his or [the mother’s] family.  [The father’s] question was not consistent with what had been discussed in the session and suggested he may have continued to have doubts about his son’s autism diagnosis.  Even after raising my concerns regarding [the father’s] overconfidence in his ability to manage his son’s difficult behaviours, [the father] continued to report that he did not find parenting [the child] difficult. 

   Taking into account the information obtained over the course of the five appointments, [the father] did not demonstrate a consistent acceptance of his son’s autistic disorder and the magnitude of his difficulties.  Despite my efforts to redirect [the father] and [Ms R] so that we could discuss strategies and ways to manage and better understand [K’s] often difficult behaviours, the couple had their own agenda and seemed more intent on speaking of their frustration with the legal system and [the mother’s] parenting than receiving new information and ideas.

   This difficulty led to the decision to cease the appointments prior to their participation in the court-ordered six sessions.  I remain concerned in [the father’s] overconfidence in parenting [the child], his overly optimistic view of [the child’s] prognosis, and given their hostility and the allegations of child abuse and psychiatric illness towards [the mother], question whether he and his partner would be able to work collaboratively with the child’s mother in care arrangements.

7. Dr D, a paediatrician, is an Associate Professor at the University of Queensland.  His specialty is child development and behaviour.  He provided a letter to the mother’s legal representative on 9 December 2009, and that letter is annexed to the affidavit of Mr Holloway, filed on 9 December 2009.  He was asked a series of questions.  It’s clear that Dr Dl has had dealings with the child since 2004, but he has not seen him for over 12 months as at December 2009.  He says in the second paragraph of his report:

   From the information available, particularly the initial presentation in 2004, I would rate the degree of autistic disorder as substantial rather than marginal. This was not only because of the obvious delays in his development generally, such as language, but also because of the clear difficulty he had with understanding psychological states of other people and the social interactions that came with this.

8. Responses to the letter.  In the final paragraph, he notes:

   The final area where you asked an opinion was on the question of what is in the child’s best interest.  If, as information to date suggests, [the child’s] father has been disengaged and does not believe in the underlying disorder, then it is unlikely that this attitude is going to fundamentally change.  This raises the risk that this young boy will be denied access to appropriate supportive services.  If this is the case, and [the child] does have an underlying autistic disorder, then I would be concerned about lost opportunity for development or improvement. 

   In a home and school environment that includes inappropriate developmental expectations, [the child’s] development and mental health could even deteriorate.  Management of an autistic developmental disorder is such that the collaborative and mutually understanding relationship with professionals and other care providers is of significant prognostic importance to future wellbeing.

9. The Independent Children’s Lawyer arranged for the parties to see Dr H, a psychiatrist in private practice, in Brisbane.  Dr H has done a very detailed report and reports on the mental state examination of the mother, the father, and the child.  Of the mother, he said:

   Her thoughts involve anxiety around her child’s wellbeing ---

10. This is at page 9 of the 25 page report:

    She specifically denied any other anxiety or mood symptoms herself.  She did not have evidence of formal thought disorder, no perceptual disturbance was noted.  She appeared to be alert and oriented to the interview.  Her history and presentation suggested that she was of at least average intelligence.  Higher cognitive testing was not performed.  No formal psychometric evaluation was available.  She was able to discuss how the father might play an appropriate role in the child’s life and might be supported to do this.  She was in favour of this. 

11. The doctor then administered what is known as the Paulhus Deception Scales, and it’s a 40 item self-report checklist.  He noted that the mother had very elevated scores and said the authors of the test describe this profile as usually associated with individuals who are:

    …restrained and generally well socialised, but when they do have problems, they lack the insight to deal with them and they appear rigid.  They may also appear sanctimonious about other’s problems. 

12. The doctor noted the mother’s scores fell in the range suggesting that other self-report measures would be probably invalid because of the overly positive socially desirable responding.  In relation to a parenting stress index that she completed, the doctor observed at page 10:

    This suggests the person who is parenting a child with multiple difficulties along the range of distractibility, hyperactivity, adaptability, demandingness, mood and acceptability.  It suggests that the parent does find the child reinforcing to parent and that the only source of stress in the parental domain is perceived lack of spousal support and parenting.  These results are consistent with parenting a child with a severe developmental disorder such as autism. 

13. Of the father, Dr H notes at page 13 under the heading, Concerns:

    He was very concerned that the child, in his opinion, was not getting the exposure and appropriate social interaction the child needed.  He acknowledged the child had an autistic disorder.  He also claimed that he had no conflict with Dr [D] and this was not consistent with the tone of the written material as later described.  He acknowledged the child had some intellectual impairment and speech and language delays.  He went on to say that the child was not happy and needed space and loves nature and likes to run.  He was extremely confident in his ability to manage the child under all circumstances.

    He stated, “It may come as a surprise to some people, but I taught him how to mow the lawn and ride a bike and do physical things and gymnastics.”  He also stated, “He is a born athlete.”  He said that, “I’m very annoyed and very angry that he’s placed among kids that are much worse than him,” and he referred to this as “dumbing down”.  He blamed this for some of his son’s lack of developmental progress. 

14. Under the heading, Mental State Examination, Dr H reports:

    He presented as an extremely confident man who gave a history which was all broad brush strokes and very light on detail, even when pressed.  He attempted to control the interview and gave long histories of matters he wished to talk about, and was hard to redirect despite repeated questioning on occasions.  He administered the same two tests to the father and the results were almost identical to those provided by the mother.  He noted that the scores fell in the range suggesting that other self report measures would probably be invalid because of the overly positive social desirable responding. 

    In relation to the parenting stress index, [the father’s] scores showed defensive responding;  that is, under-reporting of problems, on the built in validity scale of the measure.  This is consistent with the results on the deception scales above.  He had no significant scores over the 85th percentile on any sub-scales which would be consistent with under-reporting.

15. Under the heading of Opinion, at page 21 of the report, he says:

    [The mother], in my opinion, did not have evidence of a diagnosable psychiatric disorder.  She has some obsessive-compulsive personality traits, but these do not reach a level of interpersonal dysfunction that would be required to make a diagnosis of personality disorder.  In my opinion, she does not pose a physical or emotional risk to the child’s wellbeing, and is able and willing to cooperate in supporting the father in having a parenting role in a way that is appropriate and supportive of the child.

16. For the father, he says:

    [The father] does not have any evidence suggesting a diagnosable psychiatric disorder.  He has significant narcissistic traits, but these do not appear to cause pervasive social or occupational dysfunction and therefore do not reach the level of diagnosis of personality disorder.  They have, however, in my opinion, interfered with him developing an appropriate working relationship with the medical specialists involved in caring for his child and his accepting other people’s expertise in their relevant field. There does not appear to be any material that suggests he poses a physical risk to the child. 

    In my opinion, he has a significant set of unresolved emotional reactions to the child’s disability, which results in him utilising denial and other primitive defence mechanisms as a way of coping.  This has the unfortunate effect of resulting in his limited insight into the child’s profound developmental difficulties and his general overconfident and unrealistic statements he has made regarding the child.  His past behaviour has not always been consistent with his stated commitment to the child, particularly in leaving the household and having no attempt at contact for a significant period of time.

17. Under the heading Therapeutic Recommendations, the doctor says:

    If the father continues to demonstrate poor insight and co-operation with regard to a joint approach to parenting and co-operation with treating practitioners, the court may need to consider removing his guardianship rights with regard to health and education matters so as to streamline the decision making process in the future regarding the child’s medical and educational needs.  Contact with the father should be a graduated process with the child introduced to the father in familiar situations with other familiar people present initially.  Attempting to do something like supervised contact at a contact centre with a child with this kind of disability would be a recipe for disaster.

18. The other report to which reference has been made is the report of the family consultant, Ms E.  Under the heading, Child, at page 2 of her report, she said:

    [K], aged 10 years and four months, attended the interview but was unable to formally participate as his behaviour prevented this from occurring.  [The child] attended the interview secured into a mobility chair, not dissimilar to a pram, and was observed to be unco-operative.  He showed obvious signs of stressors.  He kicked his legs.  Scuff marks from [the child’s] shoes were left on the hallway walls and he used them to inhibit his mother from manoeuvring the chair through the door.  [The child] was observed hitting his head with his fists and red scratches were sighted on one of his legs.  [The child] was non-verbal as evidenced by his lack of spoken word.  Rather, he made loud, guttural noises. 

1. Paragraph 10:

   Accumulatively, [the child’s] behaviour was alarming for all involved as it drew the attention of other court staff who appeared to be concerned about this child’s overt distress and inability to settle.  Efforts were made by the mother to calm [the child], utilising one of the strategies identified by Dr [F];  that is, the happy book, which contains pictures of [the child] in happier times, or pictures of things that made [the child] happy, with no success.  The interview was therefore terminated.

2. And under the heading, Summary, at page 5 of the report, paragraph 27 and paragraph 28:

   [K] is a child who clearly has special needs to say the least, although to what extent is argued differently by each parent.  This is the major source of conflict consequently with [the mother] and [the father]. [The father’s] different opinions with respect to this is reflected in their attitudes about how to best parent him and what they perceive to be in his best interests.  This is likely to fuel the conflict and cause great harm for [the child] as his needs will be met in a conflicting and inconsistent matter, clearly not something he needs.  Conflict only serves to undermines these needs being met, hinder progress and generates regression.

3. Paragraph 29:

   It will be essential for the court to possess an accurate assessment of [the child] in order to understand the nuances of his condition.  That’s what he will require in terms of parenting him appropriately.  Once it’s been identified what [the child] requires from a caregiver, it may be beneficial to then assess whether the parents, individually or together, possess the necessary abilities and capacities to parent him. 

4. Paragraph 30:

   Common sense would prevail that it will be necessary for [K], like all children, to have a parent who is accepting of his limitations as well as encouraging of his strengths, thus has realistic expectations of his potential for future outcomes.  It’s not uncommon for a parent of a child with special needs to struggle to come to terms with their child’s limitations.  They often believe that it is a reflection of them or that they’re responsible for their child’s shortcomings.  It will therefore be beneficial to the court to have an appreciation of whether there is anything that may prevent the parents from fully acknowledging [the child’s] condition, thus impacting upon their parenting of him, whether it be minimising or embellishing his condition.

5. The father filed a notice of child abuse on 18 January this year, together with a very lengthy affidavit.  The lengthy affidavit has annexed to it a number of articles on autism.  It appears to have been obtained by research on the Internet.  In part F of the document, under the heading About the Alleged Risk of Abuse, the father refers to his affidavit:

   Obsessive physical restraints used in parenting this child. Excessive restrictions to liberty and opportunities for interaction. Psychological and emotional abuse of the child. Violation of human rights. Contravention to the Disability Discrimination Act.

6. The report of Dr D has indicated that he does not wish to be involved in the litigation process.  Dr F and her organisation, M Organisation, similarly do not wish to be involved.  I turn, then, in the light of this summary of the expert evidence before the court, to the future direction of this matter.  The father has filed affidavits of seven witnesses.  He indicates in his list of proposed witnesses he proposes to call seven witnesses apart from himself.  He has filed affidavits from a couple of them.  Ms R is his partner. 

7. There’s Mr T, who is a family friend from Fiji.  There’s a Ms TQ, who is a carer in the period from 2007/2008, and there’s her daughter, AQ, who cared for the child February 2008 to August 2008.  Another carer, NO.  Another carer, CI and Mr P, who is a family friend and a cousin of the father.  I note that none of the witnesses is an expert.  I have read the report of the daughter, AQ, and she makes positive comments about the child being calmer and responding more when in the father’s care.

8. Having regard to the fact that there will be eight witnesses for the applicant, the mother and another carer will give evidence. The Independent Children’s Lawyer would have at least four witnesses. Dr H, Dr D, Dr F, and Ms E and there may be evidence from the school principal.  It is suggested that a five day trial would be needed.  I’m unable to offer a five day trial before March next year.  I do note that apart from perhaps an updating family report and some other proposals I intend to raise, not a great deal more needs to be done.

9. The evidence seems to be solidly in place.  That leaves me to consider what orders should be in place in the meantime.  The mother and the Independent Children’s Lawyer support the making of orders, largely in terms of the orders set out in the compliance document filed by the mother on 9 July 2010.  Page 2 of that document part A sets out minutes of the orders sought by the mother.  Order number 1 is that the child live with her, that she have sole parental responsibility.  These are all, of course, interim orders.  They’re temporary orders until final orders can be determined at a full hearing.

10. They seek the suspension of orders 1 to 9 of Principal Registar Filippello of 17 December last year.  The other orders consist of seeking a series of injunctions.  As I understood the position, the mother would be content with an order that if the father was to make any complaint in the future to any government department and such like, the complaint had to be made via the Independent Children’s Lawyer, who would have the discretion to pass on the complaint if it was deemed to be a legitimate complaint.  Of course, the parties would have the right to refer the matter back to court in the event that they wished to agree or dissent with the Independent Children’s Lawyer’s determination.

11. The mother says the child acts out because of the appearance of the father in the child’s life after such a long absence.  The father says the child acts out because he’s missing his father and wants to see him and the mother mistreats him.  At an interim hearing such as this, I am unable to determine where the truth lies.  I simply note that in most areas, the views of the parties are diametrically opposed, but that in important areas, the mother’s evidence seems to be corroborated and supported by the expert reports.  I do not have to accept the evidence of experts, but I need good reason to reject such evidence.  Evidence, for example, of another equally qualified expert.  Evidence of incompetence or bias.  A failure to consider relevant facts.  So if, for example, all the carers came into court and said, “This child is looked after superbly by his father and he’s much better off in his father’s care,” it may be sufficient evidence to allow me to question the opinions of the experts.  I detect from the tone of the father’s affidavit, and other material on the court file, that the father has been very critical of the mother’s parenting and has made complaints to persons in authority about alleged mistreatment of the child by the mother. 

12. One example is the notice of child abuse to which I have referred, which was filed in January this year.  There was a previous notice of child abuse filed four months previously on 22 September 2009.  Why the father needed to file two notices in the space of four months is not clear.  Perhaps it’s because the matter was transferred to this court.  Under the first notice, under the heading About the Alleged Family Violence, he says:

    The child is psychologically being damaged with continual yelling and screaming orders and commands to him.  The child has been witness to verbal abuse and personal insults from the mother directly towards the father.  The child has been refused rights to see his father or spend time with his father since separation in July 2008.  The child has been forced to sit in a pram all day at the age of nine when at Dreamworld with other children in a family outing or group.  The child has not been allowed to experience many different things during these younger years and is not taught the basics of awareness of the world around him that will help him integrate into normal society in the future as an adult.  Simple things such as road safety rules and crossing the road.  The child has been stressed and missing his father to the point of his searching the house and becoming aggressive with frustrations and anger. 

13. To the notice of child abuse, the father annexes what appears to be an undated letter he forwarded to the Child Safety Services Department.  At paragraph 2 of that letter, he says:

    I’ve been married for 20 years to [the mother], and on […] August 1999, we have a son, [K], who was born with a speech and language delay caused by what the doctor diagnosed as a deficiency in the body to absorb a certain protein that aids in the development of spirit and language. 

14. The fourth paragraph, he says:

    During the child’s early development, my ex-wife restricted and controlled the child and refused to allow me any form, changing to any other parenting style other than what she dictated. 

15. At page 2 of the report, he said:

    Since the child was born, and even more strictly after the diagnosis, [the child] has been controlled and restricted even further with these development by his mother, and on several occasions during the marriage, when I attempted to stand up to her to allow the child some freedom to experience things or learn something new, I face an onslaught of personal abuse and personal insults, so I gave up trying.

16. I find it puzzling that, on the one hand, the father informs the court today that for nine years up to the time of separation, he was the primary caregiver, yet the contents of the letter, which he’s annexed to his own document, it was the mother who made all the decisions concerning the child and he had little opportunity for input.

RECORDED : NOT TRANSCRIBED

1. It’s quite possible that an expert explanation will be forthcoming in the fullness of time.  I simply am puzzled about it at the present time and I raise that concern.  It seems to be common ground that the child was looked after from time to time by carers.  The young AQ girl says she looked after the child up to about 15 to 20 hours a week.

2. I am informed, and, for present purposes I accept that the father has made complaints to government departments and other agencies and organisations.  I note there is a considerable quantity of subpoenaed documents from a wide variety of sources, including: the Disability Services of Queensland;  the M Organisation;  Queensland Police;  Department of Communities;  Department of Education, Training, and the Arts;  Dr S;  Dr D;  and Dr RS.

3. I stress I have not seen the subpoenaed material and I haven’t read all the material that’s currently before the court.  I do propose to make an order requiring the father, if he has any complaint about the treatment of the child whilst in the mother’s care, to make such complaint with any supporting documentation, to the Independent Children’s Lawyer, and only to the Independent Children’s Lawyer.  He is not to complain to the Department of Child Safety, by phone or by letter, or by any other means including email.  He is not to complain to: the Department of Communities;  Department of Disability Services;  the police;  hospitals;  medical practitioners;  Department of Education;  the child’s school, including any teacher.

4. Now, that is not going to be in the order. 

ORDERS DELIVERED

I take into account the father is not legally represented, the mother is not legally aided.  I have counted up that leaving aside affidavits of service and formal-type documents, it would appear that the father has filed 14 affidavits in these proceedings from 11 August last year until the present time.  It’s less than one year. 

ORDERS DELIVERED

1. So the father cannot simply come to court, file a document and litigate against the mother.  I’ll be the Judge hearing this matter, and he has to convince me that it’s not a frivolous or a vexatious matter, that it is a genuine matter that needs judicial determination.  I stress the court is not seeking to gag the father;  however, it would have to be an arguable case before involving the mother in the time and expense of contesting any further applications.  In coming to the decision I have to come to today, I have considered the terms of section 60CC and all the various factors set out in that provision. 

2. The best evidence would indicate the child needs stability and routine.  I fully accept for present purposes Dr H’s assessment that the prospect of time in a Contact Centre is unworkable.  No other supervisor has been put forward by the father or anybody on his behalf.  Because of the high level of care the child requires and because of the father’s scepticism of the child’s need for a high level of care at the present time, I do not propose to make an order for the father to spend any time with the child in the immediate future.  It seemed to me that if the father did have unsupervised time with the child, there is a risk, given his state of mind that he would seek to undermine the mother’s position or, in some other way, denigrate her role.

3. The best course is to endeavour to bring this matter on for a final hearing as early as possible in the new year.  The mother appears to have the confidence of Dr R and Dr D.  As I’ve said, I’m conscious of the evidence of the carer, Ms Q, to which I have previously made reference.  It seems to me that prior to the hearing, the court would need to provide some way of observing the father interact with his son in as objective a setting as possible.  That seemed to be the aim of Principal Registrar Filippello.  I assume she did it on the evidence before her.  It’s a similar conclusion to that which I reached.

4. One suggestion is to bring forward these people who have cared for the child in the past, such as either Mrs Q Senior or Junior and request the Independent Children’s Lawyer to arrange for that person to supervise some time with the father, with strict instructions as to what’s acceptable behaviour and what is not.  I will hear submissions on that aspect shortly. 

ORDERS DELIVERED

1. It is better that she have sole parental responsibility.  I am mindful of the presumptions in the legislation when I come to this finding, however I have to have regard to the high level of conflict in this matter, the seriousness of the allegations that are made, and have to act in what I perceive in the short term to be protective measures to protect the child as far as possible from the ongoing, unseemly dispute that is going on around him.  

ORDERS DELIVERED

1. It seems to me that, in the event the mother wanted to travel to Fiji for any reason, there would be every likelihood she would return.  She has property here and family.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry.

Associate: 

Date:  29 July 2010