REEVES & GRINTER

[2015] FamCA 1037

FAMILY COURT OF AUSTRALIA

REEVES & GRINTER [2015] FamCA 1037

FAMILY LAW – CHILDREN – where subject child has significant intellectual and mental health issues – where the child has primarily lived with the mother since birth – where the mother has since separation in 2010 been the child’s primary carer – where the father has had little engagement with the child and the child’s educational and health issues until recently – where there are competing applications for residence – where the child has had significant engagement in educational services and health services in the care of the mother – where the child’s health circumstances have significantly improved in the twelve months prior to hearing – where the child has established social capital in his living circumstances with the mother – where the mother and father have agreed to jointly engage with an agreed paediatric expert in relation to the child’ future diagnosis in the future – where the father’s proposals are untested – where the single expert evidence ultimately was cautious and ambivalent in relation to a recommendation that the child live primarily with the father – where for reasons given the single expert’s recommendation not followed – where orders made for the child to continue to live primarily with the mother and spend time with the father.

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

Goode and Goode (2006) FLC 93-286
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405
MRR v GRR (2010) 240 CLR 461

APPLICANT: Mr Reeves

RESPONDENT: Ms Grinter

INDEPENDENT CHILDREN’S LAWYER: Osborne Legal

FILE NUMBER: SYC 6726 of 2013

DATE DELIVERED: 25 November 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 17, 18, 19 and 20 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Boyle

SOLICITOR FOR THE APPLICANT: KD Holmes Solicitors

COUNSEL FOR THE RESPONDENT: Mr Morley

SOLICITOR FOR THE RESPONDENT: Legal Aid NSW C Town

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Siggins

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Osborne Legal

Orders

1. That all previous parenting orders in relation to the child B born on … 2006 (“the child”) be discharged.

2. That the mother and father have equal shared parental responsibility for the child.

3. That the child live with the mother.

4. That the child spend time with the father as agreed between the father and mother in writing with such writing to include SMS or email communication and in default of agreement as follows:

   (a)       during school term on the second, fifth and eighth weekend of school term from after-school Friday to Sunday evening with fifth weekend to occur with the father in Sydney and the second and eighth weekends to occur with the father in the C Town area and for the purposes of this order the child is to travel as an unaccompanied minor between C Town and Sydney by plane with the mother to deliver and collect the child to and from the C Town airport at the commencement and conclusion of the period the child is to spend with the father and the father shall be responsible for all costs associated with the child’s plane travel and is to provide to the mother a copy of the child’s flight itinerary and proof of payment of the child’s airfares not less than 2 days prior to the commencement of the period the child is to spend with the father,

   (b)       for 10 consecutive days during the school holidays at the end of Terms 1, 2 and 3 of New South Wales school holiday periods as agreed and failing such agreement for the first 10 days thereof commencing from after school on the last day of school term and concluding early evening on the ninth day thereafter and for the purposes of this order if the father does not collect and return the child then the child is to travel as an unaccompanied minor between C Town and Sydney by plane with the mother to deliver and collect the child to and from the C Town airport at the commencement and conclusion of the period the child is to spend with the father and the father shall be responsible for all costs associated with the child’s plane travel and is to provide to the mother a copy of the child’s flight itinerary and proof of payment of the child’s airfares not less than 2 days prior to the commencement of the period the child is to spend with the father,

   (c)       for one half of the Christmas school holiday periods being the first half of such holiday period in odd numbered years commencing on the afternoon of the day following the conclusion of school term and the second half of such holiday period in even numbered years concluding on the evening of the Friday prior to the resumption of school term and for the purposes of this order if the father does not collect and return the child then the child is to travel as an unaccompanied minor between C Town and Sydney by plane with the mother to deliver and collect the child to and from the C Town airport at the commencement and conclusion of the period the child is to spend with the father and the father shall be responsible for all costs associated with the child’s plane travel and is to provide to the mother a copy of the child’s flight itinerary and proof of payment of the child’s airfares not less than 2 days prior to the commencement of the period the child is to spend with the father,

5. That the child shall have regular communication with the mother and the father when he is not in their respective care using mobile phone, Skype or FaceTime (or similar audio-visual tool) each Sunday and Thursday evening at approximately 6.30 pm with the non-carer parent to dial in and the other parent to ensure that they have available the necessary technology to use such Skype or FaceTime communication and to ensure that the child is ready to accept the call and to afford the child reasonable privacy during the duration of the call.

6. That during the time that the child is in the care of each parent that parent shall respect the privacy of the other parent and not question the child about the personal life of the other parent, speak of the other parent and the family respectfully and not denigrate or insult the other parent in the presence or hearing of the child and use his or her best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.

7. That the mother and father shall advise each other promptly of any serious medical issue concerning the child that requires the child to be hospitalised or receive urgent medical attention and provide all necessary authorities to treating medical professionals or institutions to enable the other to speak with and be consulted about the child’s health.

8. That the mother shall in a timely fashion inform the father of all specialist medical and therapeutic appointments scheduled for the child and both the mother and father are at liberty, subject to the discretion of the treating practitioner, to attend all such appointments.

9. That the mother and father shall follow all directions given by medical or therapeutic practitioners in relation to current treatment regime and prescribed medications during periods that the child is in their respective care.

10. That the mother shall give to the child’s school written and irrevocable authority to enable the school to communicate with the father and the father to communicate with the school as to the child’s progress at school and for the father to be provided with copies of school reports and school newsletters.

11. That the mother and father shall be at liberty to attend on occasions significant to the welfare of the child including but not limited to occasions relating to the child’s education, health and medical treatment, religion, sport, extra-curricular activities and other occasions where the attendance of either or both parents is to be reasonably expected.

12. That the mother and father shall within 24 hours advise the other of their current residential and postal addresses, landline telephone numbers and mobile telephone numbers and email address and shall thereafter advise the other of any changes to such a details within 48 hours of such change occurring.

13. That the mother and father shall do all things necessary and sign all necessary documents so as to procure a medical referral for the child to Dr D paediatric specialist and facilitate the child attending upon Dr D for consultation and treatment and the mother and father shall follow all reasonable directions of Dr D or any other doctor or allied health professional that Dr D may refer the child to for treatment or assistance and in particular shall follow directions about provision of medication or reduction of medication for the child.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYC 6726  of 2013

Mr Reeves

Applicant

And

Ms Grinter

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. B was born in 2006. At the time of trial the child was just nine years of age. The applicant father and respondent mother have been physically separated since 2010, at which time the child was just four years of age.

2. In his short life time he has experienced significant movements in relation to his primary residence and is afflicted by significant medical conditions. There is no issue that the mother has been the child’s primary carer throughout his life.

3. The father commenced proceedings in March 2014 in the Federal Circuit Court of Australia. In April 2014 interim orders were made in that Court that provided for the child to live with the mother, who at that time was living in the area of C Town, New South Wales and for the child to spend time with the father one weekend a month.

4. Further interim orders were made in May 2014 providing for the child to spend additional time with the father on the second, fifth and eight weekends of each school term and for block periods in each school holiday period.

5. In August 2014 Dr E was appointed as the single expert with his report being released on 16 March 2015. Subsequently on 20 March 2015 proceedings were transferred from the Federal Circuit Court of Australia to this Court and an order was made pending further order that the mother not leave the child unsupervised in the presence of her companion Mr F.

6. The matter proceeded to trial on 17 August 2015.

The parties’ parenting proposals

1. Both parties seek to have the child live primarily with them. Thus the substance of the evidence at trial focused on the parenting history of the child, each party’s parenting capacity in the light of their competing proposals, the special needs of the child, each party’s capacity to meet those needs and the effect on the child of any change in his living arrangements.

2. At trial the applicant father sought orders that provided for:

   a)The father and mother to have equal shared parental responsibility for the child;

   b)The child to live with the father;

   c)The child to spend time with the mother until the commencement of the 2016 school year for a block period during the Term 3 2015 school holiday period and for a 4 week block period in the Term 4 Christmas holidays 2015 and thereafter on the fifth weekend of each school term from after school Friday until Sunday afternoon, for a substantial portion of the Term 1, 2 and 3 school holiday periods and for one half of the Christmas school holiday period;

   d)Specific orders facilitating the child’s travel between Sydney and C Town for his time with the mother;

   e)Various other specific issues orders including electronic communication between the mother and child, mutual information as to any significant medical issue, exchange of information as to schooling matters, mutual ability to attend child events including sporting fixtures, extracurricular activities and school functions and keeping each other informed as to address and telephone contact numbers; and

   f)A restraint on the mother from leaving the child unsupervised in the presence of her companion Mr F.

3. The mother ultimately at trial sought orders to the following effect:

   g)That the mother and father have equal shared parental responsibility for the child;

   h)That the child live with the mother; and

   i)That the child spend time with the father substantially in a mirror arrangement to that proposed by the father.

4. The mother otherwise opposed any order in relation to her companion Mr F.

The issues

1. In light of the competing applications, especially where the father’s proposal sees a substantial dislocation of the child’s settled arrangements and removal from his primary carer, the primary issues for determination are:

   a)Any risk of  harm to the child;

   b)The likely effect of a change in the child’s circumstances as advanced by the father; and

   c)The respective parenting capacity of the parties in terms of meeting the child’s special needs both in the past and into the future.

2. The evidence that assists the determination of the identified issues and of course the overarching determination of the best interests of the child falls into discrete categories:

   a)The history of the parties’ relationship  both before and after separation and their engagement with the child,

   b)An overview of the child’s schooling history and now settled schooling circumstances and

   c)An overview of the child’s medical history and each parent’s engagement in that history.

Relationship history

1. At trial the mother was aged nearly 45 and the father 42.

2. The mother suffers from a hearing deficit, wears a hearing aid and supplements that with a good skill at lip reading. As a consequence that her oral evidence was at times animated and expressive.

3. The mother has an older child Mr G, who at the time of trial was 21 years of age. Mr G formed part of the parties’ then the mother’s household until such time as he commenced university studies.

4. The mother had spent her childhood in H Town in the central west area of New South Wales.  The parties initially commenced cohabitation at I Town, New South Wales in about August 2005. The parties married in 2008.

5. In December 2005 shortly after the commencement of cohabitation the parties relocated from I Town to J Town and then in 2006 to K Town, Queensland. In K Town the father obtained work as a foreman/carpenter. The parties purchased a property in K Town.

6. In August 2006 the child B was born. The mother sought to obtain part-time work when the child was about eight months of age but the child became distressed and she ceased work. The mother observed that the child did not walk until 15 months and was speech delayed.

7. In January 2009 the mother and the children the child and Mr G (the child’s older half-brother) relocated to the Southern Highlands area of New South Wales where they resided in a rural cottage. In August 2009 the father was also able to relocate to the Southern Highlands having completed his work obligations in K Town. In December 2009 the parties and the two children moved to rental accommodation in L Town.

8. In January 2010 the father went to Perth for work. The mother and the two children relocated to Perth the following month.

Separation and thereafter

1. On 13 October 2010 the mother and the child relocated from Perth to M Town, South Australia to reside with the mother’s maternal aunt. The mother commenced to receive single parent government assistance.

2. The child Mr G remained with the father in Perth to complete his TAFE studies that year.

3. The mother contends that she and the father separated in October 2010 and she separated in circumstances where she was concerned as to the father’s physical discipline of the child and his use of a raised voice to the child who was only four. The mother considered that the father exhibited impatience and frustration with the child.

4. The father contends that separation was not until March 2012 when he became aware of the mother’s relationship with Mr F. In reality nothing turns on the issue as the parties spent little time together in the intervening period.

5. In November 2010 the father arranged contract work in Adelaide, South Australia. However in late 2010 the mother relocated herself and the child to N Town on the New South Wales south coast to help a friend in her business. Mr G joined them shortly thereafter.

6. Christmas 2010 was spent by the parties and the two children with the father’s family in HH Town. In January 2011 the mother and the two children returned to N Town. The mother then went to J Town to her sister’s and then to live at O Town, Queensland where Mr G in 2011 completed his year 12 studies to gain university admission. The father paid the mother’s moving expenses to O Town.

7. The father went to Perth for employment in early January 2011. The father was able to visit the mother and the child in O Town on three occasions in 2011.

8. In January 2012 Mr G commenced his university studies at Griffith University in Brisbane. At about this time the mother and the child relocated to P Town, Queensland. In P Town the child, then aged five, was prescribed a food plan by the local GP, Dr Q, to address behavioural issues. Both parents continue to ensure as best they can a low sugar diet for the child to address hyperactivity issues.

9. The father visited the mother and children in P Town for a period in January 2012 and then again in March 2012.

10. In early 2012 the child, then aged five, commenced to attend kindergarten at the R School in S Town with the fees paid by the father. The child over several months had significant absences from the R School in this period with school documents revealing difficulty in settling the child in. The mother says the child had trouble settling and exhibited very bad behaviour. It is later reported that the child had in fact been expelled.

11. In April 2012 the mother then relocated herself and the child to back to I Town, New South Wales where the parties initially resided. The mother obtained rental cottage accommodation. The mother had grown up in H Town, a nearby town. She wanted the child to attend a smaller country school. It is of note that the father seemed to take no objection to the mother’s relocation.

12. The mother now resides in a two bedroom cabin on a 26 acre rural property, 17km from H Town and 60km from C Town. The mother keeps various domestic animals on the property.  She maintains an organic garden and orchard. The child has various chores that she says assist with his discipline and respect. To the mother’s observation the child enjoys the rural setting and “thrives”.

13. The child’s older sibling Mr G visits during university holidays. The child catches the school bus to and from school on his own.

14. The mother commenced a relationship with Mr F in August 2012 although she has known him for 16 years. Mr F lives primarily in I Town. Mr F has an engaged relationship with the child. To the mother’s observation he has a patient and good relationship with the child.

15. The mother has been unable to engage in paid employment as a consequence of the child’s behavioural issues, ongoing issues at his school and ongoing engagement with the child’s health professionals. She is undertaking TAFE studies and has been able to undertake placements during school holidays when the child is with the father.

The child’s initial diagnosis and schooling

1. An insight into the child’s special needs is available from the child’s schooling history and the resources that have been made available to assist him to integrate into the wider school community together with relevant health professional interventions.

2. In early May 2012 the child, aged five, commenced attendances at the I Town Public School in kindergarten. The child was identified on enrolment as having behavioural disorders relating to food (no sugars) and “slight autism”.

1. In May 2012 the mother met with the child’s class teacher and Principal for a negotiated transition to full time attendance (Exh K). It was planned for the child to be in full attendance by the end of Semester 1in late June 2012 with the plan to be reviewed weekly. The child’s Semester 1 report reveals the following general comment:

   [B] is steadily settling into [I Town] Public School. During his time in KP, much of it has been used to provide support through his personalised behaviour support plan. The aim of this plan is to enable him to fully participate in a mainstream classroom. Encouragement has been given for the child to listen to others and he is rewarded after each minute interval for successful listening. This is the key focus of his behaviour plan. It has been fantastic to have the child in KP and I look forward to supporting his development.

2. During this period the child commenced to spend some periods, including two weeks in June 2012, with the father who was continuing his employment in Western Australia.

3. In July 2012 the child was seen for the first time by Dr T, a paediatric specialist in C Town (Exh K) with a report to the child’s GP of the same date after detailed observations and assessment of the child. The mother’s Behaviour Rating Scale for the child showed symptoms of hyperactivity and inattention. It is noted that the mother did not see the child as suffering from ADHD but considered “autism and sensory overload” as issues and, if so, there could be a request for class support for the child. Dr T recommended speech therapy and an occupational therapy assessment.

4. As observed by Dr E later in his Single Expert Report, the mother at this time was “significantly bothered by his conduct problems”. A teacher’s report indicated significant problems across almost all of the clinical scales. On a more diagnosis-based scale the child scored in the clinical range on affective problems, attention deficit hyperactivity problems, oppositional defiant problems and conduct problems, while his score on the attention problems was in the borderline clinical range. His teacher also reported him performing well below his age peer group with overactivity and inattention making it difficult for him to learn. She also identified that the child physically attacks people and talks about killing himself.

5. The Semester 2 report December 2012 from I Town Public School was preceded by a School Counsellor’s Report of mid-August 2012. The child was tested using the Wechsler Preschool and Primary Scales of Intelligence, Deveraux Scales of Mental Disorders (DSMD) and the Social Responsiveness Scale (SRS). The report concluded:

   [B] is a child of average verbal and performance ability as measured on WPPSI-3. His verbal and visual reasoning are average for his age. [The child] has a particular difficult (sic) discriminating visual information, and as a result a processing speed score could not be calculated. This will directly affect [the child’s] ability to write and discriminate symbols.

   [B’s] general maladaptive behaviour, as measured using the DSMD, was rated as more extreme in the school setting, where his ability to relate to others, is more obvious.

   The Social Responsiveness Scale (as observed by the class teacher), revealed severe deficits with understanding the behaviour of others toward him, the ability to mix with others, and the ability or motivation to have a wide range of interests.

6. The school counsellor recommended a referral to an occupational therapist to further explore the child’s difficulties with visual discrimination and paediatric assessment.

7. In late August 2012, after the school assessment, the child was seen by Dr T for a paediatric assessment. The child was prescribed Risperdal liquid by Dr T and assessed as mild to moderately autistic within the Autism Spectrum Disorder. Problems were otherwise identified as ADHD and aggression including animal cruelty.

8. An occupational therapy sensory profile report was completed on 13 December 2012 by Ms U, Occupational Therapist, Western New South Wales Local Health District (Exh G). The occupational therapy report included assessment through parent interview, classroom observations of the child and a sensory profile completed by the child’s teacher.

9. The occupational therapist reported:

   Parent and school identify [the child’s] main area of difficulty to be his behaviour which is directly impacted by his Sensory Profile. [The child] seeks movement and touch information more than his peers as well as processing information through his eyes and ears differently. This impacts [the child’s] concentration skills, social participation and willingness to engage in activities throughout the day. [The child] has a diagnosis of autism and ADHD which should also be considered in the management of [the child’s] behaviour.

10. In classroom observation the occupational therapist reported:

    Class were expected to listen and follow instructions in order to carry out maths activities in small groups. [The child] was observed to seek out touch information including clapping hands on face, leaning against the wall on entry to class. [The child] sought additional movement opportunities to peers including performing somersaults on floor while receiving instructions for task. [The child] performed head stands in group time, touching other children in play. [The child] was observed to have some difficulties in recognising peer emotions to the point of annoying peers.

11. The child’s Semester 2, December 2012 report from I Town Public School revealed a reasonably successful transition to full time attendance with nine full days absent and five partial days absent; although for a short period the child was suspended for behavioural issues. In general comment the report noted:

    During the second semester, [the child] enjoyed coming to school each day. He strengthened his relationships with his peers through playing at break times.

    [B] completed an Individual Behaviour Management Plan. In this plan he was supported to improve a small number of targeted behaviours. When he reduced the frequency of these we moved on to a new set of behaviours. In Term 3, his behaviour was excellent with him showing longer periods of focus and listening without disruption. However, in Term 4 the frequency of the previously targeted behaviours increased and he was given lots of encouragement to follow the school’s core values of Respect Honesty and Responsibility.

    [B] worked on a differentiated education plan that focused on his learning needs. He was sometimes given one-to-one support for him to learn his numbers and sounds. He enjoyed working in this situation.

    [B’s] efforts in homework were good this semester. He sometimes completed homework and borrowed several RATS readers. These activities provide students with the opportunity to revise and strengthen their knowledge and abilities. It also provides students with strong work habits for later years. Thank you for your efforts in supporting the child’s classroom learning experiences.

    I want to thank [the child] for his positive behaviour and fantastic efforts towards his learning. His curious personality has been enjoyable to have in the class. I would also like to congratulate [the child] for completing a Kindergarten. Good luck in the Year 1.

12. In the period discussed above the father appears to have had little or no engagement if the child’s educational and medical issues.

2013: the child’s continuing health assessments and schooling

1. In January 2013 Dr T had referred the child to the Paediatric Psychology and Social Work Team at the C Town Community Health Centre with concerns regarding autism spectrum disorder, in particular problems and behaviour in school setting and requesting assistance with the management of the child’s behaviour. The child’s engagement with this service (Exh H) included:

   a)A social worker for comprehensive individual assessment;

   b)An occupational therapist for assessment/therapy – sensory processing skills;

   c)A dietician for assessment and review with diet information and advice provided; and

   d)A child and adolescent mental health psychiatrist for assessment, medication review and discharge from the service.

2. The child’s Semester 1, 2013 school report revealed significant progress in relation to the child’s schooling and his integration into the school community. The report noted:

   [B] is a very lively and cheerful pupil who gets along well with others. His bubbly and friendly personality brightens up the classroom and he is well liked by his peers. [The child] has shown some improvement in his attitude towards his studies. His attitude and maturity towards schooling is improving. [The child] is learning to be a cooperative member of the class. He is showing more confidence in class and will at times, ask for assistance when he requires help. the child has the ability to use his time effectively in class when he chooses to. When [the child] puts in more effort, his work is more presentable. When he is focused, he can work independently with minimal supervision. [The child] generally participates in classroom activities. He needs encouragement at times to concentrate more attentively on a set task. [The child] brings an element of fun to the class and he’s (sic) efforts thus far should be commended. Keep it up, [B]!

3. In mid-August 2013 the school implemented in conjunction with the mother and the child a Personalised Learning and Support Plan for the child (Exh K).

4. In about September 2013 the mother and child relocated their residence to V Town, H Town NSW. The rural property occupied by the mother is owned by her companion Mr F. The property is a broad acre property on which stands the ruins of an old two-storey manor house.

5. To the mother’s observation this rural environment offers a different lifestyle to the child with the benefit to the child becoming evident to her in the child’s behavioural improvement and progress particularly at school. Dr E speaks positively about the rural environment for the child.

6. In early September 2013 concurrently with the mother relocating her residence to H Town New South Wales the child changed schools to H Town Central Public School.

7. Initially as reported by the Principal, the child required a staff member to be with him at all times and displayed violent and aggressive behaviour to staff and children. In early November 2013 he was suspended for four days for fighting and placed on partial attendance. It is to be inferred that the child’s regression in schooling behaviour arose as a consequence of the issue relating to the child’s medical conditions coupled with substantial change implemented by the mother in changing residence and the child’s school. It is to be further inferred from Dr E’s evidence that any significant change in the child’s settled arrangements will lead again to disruptive behaviour.

8. The child’s Semester 2 December 2013 report from his new school in general comment showed guarded improvement and observed:

   [B] shows that at times he can be a cooperative student who follows class rules. the child is studying his own independent program but needs one to one assistance to stay on any given task.

The Paediatric Psychology and Social Work Team at the C Town Community Health Centre report February 2014

1. The detailed report dated 18 February 2014 (Exh H) from the Paediatric Psychology and Social Work Team at the C Town Community Health Centre includes the following under “Clinical Impressions”:

   [B] is a 7 year old boy with significant difficulties with behaviour, social relationships, anxiety and mood and has been diagnosed with ADHD and possible Autism Spectrum Disorder. Recently the child was seen by [Dr W] who listed four diagnoses: ASD, Learning Disorder, Oppositional Defiant Disorder and ADHD. He is presenting significant challenges at school and home and displaying a level of insight and awareness into his difficulties.

   Academically, the child is performing below his grade as reported by his teacher. [The child’s] Hyperactivity and Inattention (associated with Attention Deficit Hyperactivity Disorder) make it difficult for him to learn.

   [B’s] teacher identified in the Teacher Report Form, that [the child] physically attacks people and talks about killing himself. This raises significant clinical concerns for [the child’s] emotional well-being. He presents as quite distressed by his experiences of school in particular.

   Socially, his aggressive behaviour makes it difficult for him to be build peer relationships. In addition the child has a number of impairments that are consistent with Autism Spectrum Disorder, and make it difficult for the child to form relationships with other children. The main developmental domains that [are] affected are social interaction (especially the perception of social cues) and impaired communication skills (both verbal and non-verbal).

   [B’s] presentation is quite complex. He has been assessed as having Autism Spectrum Disorder, yet his communication with assessors has been engaging and appropriate. He has not had any assessment of his communication. He has been given a diagnosis of learning disability however this has not been assessed as far as I am aware. His mood difficulties appear to have slipped out of the clinical picture yet have the potential to significantly impact on his ability to learn and behave appropriately.

2. The report made a number of recommendations for the ongoing management of the child including a referral to Dr X, Associate Professor in Child Psychiatry for review and opinion.

3. Thereafter the child has had a number of medical interventions including with the Dr W, psychiatrist in February 2014 and Dr X at the Y Hospital in April 2014.

4. Dr X reported to Ms Z at the Centre in C Town by letter dated 2 May 2014. The report observed “[i]t would seem evident that the child has suffered serious emotional, behavioural and developmental disturbance”.

5. It was reported that the mother:

   … describes him as having been different from birth, and when he first started school she became aware of his sensory overload and having a constitutional sensitivities to sugar, gluten, wheat and other food types. She describes that [the father] accuses her of making [the child] “sooky” (emotionally dependent) whereas [the father], whom she describes as “selfish by nature”, expects a high degree of emotional independence.

6. It was further reported that the child has tried a number of appropriate medications without much benefit, that the child in the last six months had gained 16kg to 45kg as a consequence of increased appetite. After noting the child’s current medication levels the report observed: “it is difficult to get a history of what benefit there are from each medication”.

7. The report recommended that the child have a trial of a gradual reduction of his medication to ascertain what extent that could be beneficial, leading to a consultation with both parents in deciding what medication the child should continue with. The mother was against any reduction of medication for the child as a consequence of the child’s improvement whilst on the medication.

8. However there was a gradual reduction in medication over a period of weeks until Dr T reported in the following terms:

   I have reviewed [the child] after three weeks of gradual reduction of his Risperdal … His mother reports that he has become worse, more aggressive since reduction of the medication on 16 June 2014.

   Any further reduction in the child’s medication was put on hold.

9. Dr X thereafter recommended that the child’s Risperidone medication be increased again but noted the dispute between the parents as to the child’s treatment that should be resolved by the Court. The child’s medication has remained at the dose implemented by Dr T.

10. Regrettably the Centre at C Town in mid-2014 informed the mother that it was unable to continue support in the context of ongoing family law proceedings (Exh N). It is to be inferred that this was as a result of the father not providing his consent.

2014-2015: schooling

1. The child resumed at his new school in the 2014 school year with difficulty in full-time integration initially.

2. On 11 March 2014 the mother attended a learning support meeting at the school with various staff and other representatives.

3. Following the learning support meeting and on 18 March 2014 the school made a Departmental Access Application requesting immediate additional student support services for the child (Exh K). The application for additional support revealed that by this time the school itself was funding a student learning support officer for the child. The application states:

   The Paediatric and Social Work team with the Western NSW Health have recommended a referral to Associate Professor in Child Psychiatry for review and opinion which will be on 29 April 2014 via telemedicine link. [The child] was also referred to speech pathology for an assessment as well as sensory processing therapy with [Ms AA], occupational therapist at [C Town] Community Health Centre. the child is also been allocated [Ms Z], Provisional Psychologist for further psychometric testing of educational achievement as well is individual therapy.

4. The child continued to have major outbursts of behaviour at school and in June 2014 the Assistant Principal of the school reported to Dr T in relation to the child’s behaviour and academic progress. The report dated 24 June 2014 observes:

   [B] has begun to be more settled at school and is learning to accept the rules and regulations of the typical school day. He catches the bus to school and usually arrives happy. He is able to put his bag away and search out friends to play with before school. He lines up with the other children at assembly and is able to follow those procedures without assistance.

   [B] has a full time aide to help him in the classroom. [The child] has a very short attention span but we are noticing changes in his ability to apply himself to a task. [The child] was well below the academic level of a child of his age and has struggled with all facets of formalised schooling. His aid works with him on an Individual Learning Program and we are seeing some progress academically.

   Unfortunately, [the child] still has minor and sometimes major outbursts of behaviour. He often refuses, will climb under tables, hit, pinch or scream at his classmates. He often needs to be given warnings about behaviour and obviously, his learning program is differentiated from that of his classmates due to [the child’s] need for movement. Usually by 11:30 or 12:00 we notice an escalation in [the child’s] inappropriate behaviour. He becomes much louder and can become hyperactive and aggressive. [The child] receives his dose of medication between 12:45 and 1:15 and we noticed more settled behaviour in the last session of the day (from 2 – 3:00pm).

5. The child’s Semester 1 (June 2014) school report in general comment noted:

   [B] has made great gains this semester. He has been attending full time schooling and as each week passes he is becoming more accepting of the school routine and more able to behave in a way that is acceptable amongst the group. [The child] has been able to establish friendships and is learning to make compromise (sic) with his friends and the staff. He is engaging more in class discussions and he will often seek help when he is experiencing difficulty. He is increasingly able to display cooperative behaviour in class. [The child] would gain from utilising his time effectively to ensure that all work is completed in the allocated time. the child has acquired an elementary level of knowledge and competence in the content covered.

6. On 27 October 2014 the child’s teacher and school Principal prepared a collaborative report in relation to the child’s circumstances (Exh K). The report presents a picture of ongoing improvement in the following terms:

   [B] has settled quite well into the school routine. Upon arrival at school he is able to get off the bus, put his bag away and find a friend to play with. He responds to the school bell and joins the other children at morning assembly without assistance. [The child] then participates in ten minutes of vigorous activity with his peers and lines up with his classmates ready for class.

   The morning session at school (9:00 – 11:00) is usually quite smooth. We do have some days when he is tired, or upset, or just out of sorts (like any child). [The child] is becoming increasingly interested in writing and has begun to write a short story (2 – 3 sentences) independently. He has an aide available to work with him. [The child] completes modified tasks with the support of his aide. Is generally able to concentrate quite well unable to control his own behaviour so that he is learning and so are his classmates.

   At recess [the child] often needs to be monitored to make sure he is eating. His behaviour at recess time is much improved. At the beginning of the year he was unable to play with his peers without becoming upset, violent or aggressive. We now have very few issues of this kind with [the child].

   At 11:30 [the child] lined up with his classmates and participates in intensive reading. [The child’s] behaviour and concentration begins to ‘slide’ just before 12:00. He has trouble focusing and often begins to refuse teacher instructions and can become aggressive. At about 12:00 we take [the child] to have his medication. He then does some physical activities (running, kicking a ball, digging, shooting hoops) for about 20 minutes. [The child] is then usually able to concentrate back on his learning tasks. This period between recess and lunch (11:30 – 1:15) is definitely a difficult time for [the child]. He enjoys lunch play and usually likes to kick the football around or play soccer with other boys. He is no longer a danger in the playground, though he still has an aide nearby, just in case. After lunch [the child] is very settled and able to participate fully in the school routine. At the end of the day is able to pack up his equipment, collect his bag and line up for buses.

1. On 28 October 2014, early in Term 4, a meeting was held in relation to the child’s Individual Education Plan (“IEP”) (Exh J). Present were the mother, the child’s class teacher, the child’s teacher’s aide, the school counsellor and the Learning and Engagement Officer. The meeting minutes provide a useful insight into the detailed engagement the school has with the child and mother. The formal minute signed off by the Principal, the mother and the class teacher evidences a close engagement between the mother and the school with the child’s issues. The “agreed action plan” includes plans to:

   a)Continue working on his adjusted program with the assistance from the School Learning Support Officer (SLSO);

   b)Modify and extend elements of the child’s program as his skill set and achievements improve over time;

   c)Develop and maintain an IEP for the child;

   d)Continue to reward positive behaviours with extra time out for creative and sporting activities;

   e)Continue to develop and extend upon the child’s basic literacy and numeracy skills;

   f)Close communication between home and school to constantly revise and reset learning and behavioural goals; and

   g)Continue to closely monitor the child’s behaviour in the playground to minimise risks (as per risk assessment).

2. The formal report includes details of progress towards previously agreed goals and learning outcomes. These include:

   a)B has recently qualified for a SLSO after an access request was successfully granted in Term 3;

   b)B works one-on-one with the SLSO on a modified curriculum programme;

   c)B is currently improving in his behavioural and academic goals;

   d)B participates well in the (adjusted) literacy and numeracy programs with his SLSO;

   e)B is currently reading at level VII;

   f)B enjoy his PDHPE activities and has extra time out for these as a reward for appropriate behaviours;

   g)B enjoys his creative activities including drama, music and visual arts. He is currently having piano lessons in school with Mr LL;

   h)B responds well to sensitive people who nurture his needs; and

   i)B’s medication levels are regularly revised and monitored by his mother, in consultation with medical and health care professionals.

3. As discussed below there is little reference to any contact from or engagement with the father in relation to education or the child’s health interventions. The father was having time with the child by arrangement with the mother in 2013 while he was in Perth and in Sydney and in terms of interim orders made in the first half of 2014.

4. The mother was the person responsible for the child’s special needs intervention and educational issues without any meaningful assistance from the father or the provision of any period financial support from him.

5. The IEP for the child has resulted in positive improvements in all areas of the child’s school engagement. In the child’s Semester 2 report in December 2014 the general comment reveals:

   [B] is demonstrated significant progress both academically and socially this semester. He has developed some solid friendships with his peers and is learning to play cooperatively. [The child] shows compassion towards his peers and treats his classmates with respect. Academically, [the child] has really begun to increase his periods of focus and willingness to approach tasks in an independent manner. [The child] takes pride in the work he produces and enjoys showing his work to the teachers.

6. The child’s attendance at school was regular in Semester 1 2015, missing only a few days of school (Exh I). Comments by the child’s school Principal and classroom teacher in early 2015 (Exh K) revealed the benefit of the child’s medication and the child’s significantly better engagement at school and with other children.

The parties, their perceptions as to the child and their issues

1. The mother in early 2015 described to Ms BB, Educational and Developmental psychologist (whose evidence is considered in detail below), the child’s ritualistic behaviours. The mother reported that the child copes very badly with changes in routine and needs to be well forewarned.

2. The mother describes the child as “coming along in leaps and bounds, with the medication demonstrating a lot of benefit”. She reported to Ms BB that she was thrilled with the child’s present educational environment and the mother’s view was supported by the child’s Principal, Ms CC in her report to Ms BB with the focus now moving from the child’s behaviour to academic catch up.

3. The child’s classroom teacher Ms DD also reported to Ms BB that the child has settled with a regular group of friends and displays appropriate social skills. The child’s behavioural issues now revolve around hyperactivity, inattention and disruptiveness in contrast to the child’s initial extreme presentation involving frequent violence, defiance and oppositional traits. Ms DD reported improvement in the child’s impulse control and emotional regulation after periods of exercise or after weekends with the father.

4. The mother demonstrates an understanding of the purposes of the child’s medication regime, particularly as to Ritalin which she has observed to be extremely effective in relation to his learning and socialisation. She detailed to Ms BB how the child’s life had significantly improved since the commencement of his current medication regime.

5. The mother is open to the prospect that following trial and error in the future in relation to the levels of the child’s medication he could move to a circumstance where he was on no medication.

6. Her present appreciation of the child’s health circumstances are in contrast to her early struggles with the child’s issues and her early coping methods revealed in the report from Ms BB, to whom she presented as a “very involved and energetic mother”. The mother has read widely on the management of special needs children and has completed various parenting courses including “1-2-3 Magic” that focuses on management techniques for children with difficult behavioural issues.

7. The mother reported to Ms BB that she is alert to the different parenting styles of herself and the father who she describes as having “little patience”.

8. She acknowledges that it would be a better circumstance if she was better able to communicate with the father but said that she could work with Dr D who was recommended by the Single Expert. She has some comfort in this arrangement as she is aware of a relationship between Dr D and Dr EE, the paediatric specialist in C Town.

9. The father’s evidence and objective material reveals little engagement in his son’s educational or health circumstances. He remained in employment remotely and it appears made no effort to relocate to improve his relationship with his son or so as to be more engaged in his son’s day to day life.

10. The burden of the child, his day to day upbringing, his accommodation, his behaviour, educational and health issues and financial support have fallen squarely on the mother.

11. In 2014 the father spoke to the child’s teacher and sought to have the child tutored although it was to be the mother’s responsibility to implement same. Later in late 2014 he spoke to the child’s teacher about extracurricular activities for the child yet did not speak to the mother.

12. His evidence reveals little ability to confer with the mother as to the child’s needs.

13. In 2014 the father, pursuant to interim orders, spent time with the child three weekends per school term and in school holidays. The mother expresses concern that this has had on the child as his behaviour deteriorates after time with the father especially where time is in Sydney necessitating air flights and lengthy travel for the child. The mother suggests that one mid-term weekend would be better with the father to have the majority of school holidays. Such a midterm arrangement is supported by Dr E as the travel is disruptive.

14. In June 2014 the father received a copy of the child’s classroom assistant’s (SLO) report as to the child’s behavioural issues. The child continued to demonstrate inappropriate, disruptive, aggressive, disobedient and unsafe behaviours at various times. This is reflected in the school reports referred to above. This coincides with the trial of gradual reduction of the child’s medication.

15. The father expresses concern in his trial affidavit that the child is “falling behind his peers” at school. That concern reflects little insight by the father into the child’s intellectual capacity assessed as “within the borderline range of intellectual functioning” by Dr E (Exh B) and the child’s complex health issues where even the medical and health practitioners differ as to a diagnosis.

16. It further reflects little acknowledgment by the father of the matters raised in relation to the child by his school reports by educational staff that have had a significant involvement with the child and by the considerable community health resources that have been made available to help the child.

17. The child is with the father for school holiday or weekend time at intervals during school term. The father’s observation in general is that the child was compliant, with the odd behavioural issue including bed wetting well into Term 1 2015. His time with the child has been significantly in the presence of other adults but no evidence is adduced from them in support of the father’s contentions save for evidence observations from the paternal grandmother whose observations of the child are not at odds with the child’s improving presentation at school in late 2014 and early 2015.

18. By the end on Term 2, 2015 the father observed that the child’s behaviour “was improving each day”. The inference is that the child presented with adverse behavioural issues although the father’s evidence was non-specific. The tenor of his evidence is reflective of the child’s improving engagement at school and his behaviour generally at school and as described by the mother.

19. The mother acknowledges that the child’s behaviour could be perceived as more settled with the father. The father’s time is effectively holiday time for the child whereas the child when in her primary care has chores and responsibilities that are important to his discipline and development. This distinction was also the subject of comment by Dr E.

20. To the mother’s observation the child appears to be over the more serious of his behavioural issues and this conclusion by her is supported by the objective educational and health documents in evidence.

21. The child has established social capital in the area where he resides particularly as to his primary residence, his school, his friendship network and his sporting and other extra-curricular activities including music. She acknowledges that the child loves the father and that the father could be a good role model for the child.

22. The relationship between the father and mother is poor. The father gives much evidence designed to be disparaging or critical of the mother. Little weight can be given to such evidence where the adults being the makers of the representations relied on by the father were not called to give evidence and thus be available for cross examination. The mother however is supportive of the child’s relationship with the father.

23. The father gives evidence of circumstances where clearly other adults were present at times when they had the opportunity to observe the child’s behaviour and the child’s interactions with the father. This is particularly so of the mother’s sister Ms FF with whom the father and child have spent significant time on weekends in C Town. They were not called to give evidence. The only witness in support of the father’s case was from his mother who resides in the Southern Highlands area south of Sydney, some two hours plus drive from where the father resides in Suburb GG. Her evidence is referred to above.

24. Many of the father’s criticisms of the mother that he asserts fall from what he says the child has said to him. There is no corroboration. Little weight can be given to such evidence where the mother denies such matters when they were put to her, where the child has clear special needs and poor intellectual functioning and it is clear that the parties are in significant conflict.

25. The father further complains as to the mother’s historical propensity to physically discipline her now adult child Mr G. This was rejected by the mother. Whilst available to give oral evidence, Mr G was not required for cross-examination by the father.

26. There is no doubt that the father and mother are at odds with the child’s “diagnosis”.

27. In early 2013 the child spent a block period with the father and his family in HH Town. The father was provided with no medication for the child and to his observation there were no behavioural difficulties with the child, who to him appeared well behaved and happy. Subsequent to the child being returned to the mother she made reference for the first time to the child having medication.

28. Later in 2013 the child again spent a two week period with the father. On this occasion the child arrived with medication for the holiday period, although the mother provided no appropriate instructions to the father in relation to its administration. The father subsequently ascertained that the medication provided was Risperidone and Fluoxetine (Prozac). The father became concerned in relation to the nature of the medication provided by the mother in circumstances where he had not had the opportunity of conferring with the prescribing practitioner. The mother inappropriately refused to provide details of that practitioner to the father.

29. After inquiry and following some information provided by the child the father was able to speak to Dr T. The father says he was informed that the child was diagnosed on the basis of his school reports and information related by the mother without having a one-on-one session with the child. That contention is simply false: see reports from Dr T in Exh K.

30. In December 2013 the father became aware that the child was to consult the Adolescent Mental Health Clinic in C Town. He had difficulty in obtaining information from that service, as it transpires because he had changed his name by Deed Poll.

31. The child was with the father for the school holidays commencing late June 2014 with all his medication. In the September/October school holidays the father complains that inadequate medication as provided. Save for a change in brand the father makes no complaint about medication provided in the December/January holidays and the Easter holidays 2015. Medication was not provided by the mother for a weekend stay with the father in early June 2015 and there was a delay of a day or two in the provision of medication for the June/July 2015 school holiday stay. It is appropriate that both parents have access in their own household to such medication as is prescribed for the child. No doubt that can be attended to by Dr D.

32. The mother says the child’s behaviour over the last 12-18 months has improved. The child on occasions yells and swears at the mother and is defiant. This often occurs after time with the father, when the child is tired or near his next dose of medication. This is supported by the school’s observations referred to above.

33. The child has not been excluded from school since an incident in mid-2014. The mother is careful with the child’s diet and does not permit the child to be exposed to over stimulating movies or games. The mother has engaged the child in soccer during the winter months and swimming in the summer months.

34. The mother’s observations as to the child are supported by her older son Mr G who more recently was part of the household from November 2014 to mid-February 2015 while on university holidays. He was not cross-examined. Mr G says that the child has told him of watching inappropriate videos and games whilst with the father. Yet again such assertions need to be treated with caution.

35. The mother is engaged with the child’s school on a regular basis and formal minuted meetings are held with the staff as to the child’s progress. The school has been provided with a copy of the psychological assessment of the child by Ms BB. The mother sought further direction from Ms BB in April 2015 but did not receive a response.

36. The mother acknowledges that she presents a more passive role in her management of the child but asserts that such avoids the child being more oppositional should she act assertively. She contrasts her style to what she perceives to be a more rigid and impatient style adopted by the father. She has, she says, had to “pick her battles” in dealing with her son and his daily routine on a day to day basis for years whereas the father sees him for holiday and weekend time.

37. The mother has engaged in counselling to assist her parenting style especially as to discipline issues arising out of the child’s behaviour. She has completed the “1-2-3” Magic course at the C Town Community Health Service in C Town and sought subsequent assistance directly from the C Town Community Health Service. Her “time out” approach she had implemented in early 2013 with the child was fine-tuned by further input she received. The mother acknowledged that before 2013 she was hesitant to discipline the child. Now she sees the issue of discipline as a complex process involving also the child’s diet.

38. The child is actively engaged in the farm chores and activities each day in circumstances where to the mother’s observation he is much happier outside and doing physical activity. The mother has the child in a stable routine supported by the child’s school and local health professionals.

39. The mother identifies the child’s issues as a reaction to certain foods, ADHD and, originally, an ASD diagnosis she was given. As to the latter she says it is not much of an issue now as the child gets older and she identifies it not as a something he suffers from but a descriptor of his condition. It is her view that the current medication regime is working for the child; something that is supported by the observations of the child at school and the father’s own observations and desire to see that he is provided with appropriate medication.

40. The mother is open to a trial of medication reduction or cessation so as to properly identify if the medication is in fact addressing the child’s issues notwithstanding the previous failed trial earlier under the auspices of Dr T and Dr X. The mother does not herself consider such a trial will be helpful.

41. Following recommendations in the Single Expert Report by Dr E the father unilaterally sought to have the child seen by Dr D, paediatrician, in Sydney on 29 July 2015. The mother agreed and now agrees to the child seeing Dr D, who is experienced in autism and ADHD issues, when the child is in Sydney with the father. She can attend consultations electronically. Dr D has a professional connection with the child’s health professionals in C Town.

The Expert Evidence: The Reports

Ms BB, educational and developmental psychologist

1. Following a request from the Single Expert Dr E, psychiatrist, the child was seen with the consent of the parents by Ms BB, educational and developmental psychologist, for the purposes of an educational and social/communication assessment. Her report is dated 4 March 2015 (Exh A) and is referred to above. She was not required for cross examination.

2. The nature of the dispute between the parents was immediately evident upon Ms BB interviewing the father on 5 January 2015. The father stated “that he hoped this assessment would re-evaluate his sons pre-existing diagnoses and need for current medical intervention” (emphasis added). It is clear that the father sought to reject any suggestion of autism. Yet the father acknowledged that in the early years the mother was not coping with the child’s hyperactive and defiant behaviour.

3. Notwithstanding he accepts the previous accounts of the child’s violence and disruption at school the father puts this down to an anxious and frustrated child who was being asked to complete tasks by teachers that he couldn’t complete. The father outlined to Ms BB his observations in relation to the child’s behaviour and his behavioural management techniques. The father acknowledged that the child’s numeracy and literacy skills were behind, observing that in his opinion the child needs greater repetition at tasks before retaining information but that the child has the capabilities to learn.

1. Ms BB after clinical assessment concluded (Exh A) that:

   73. [The child] fulfils DSM-5 criteria for a moderate – severe Specific Learning Disorder with impairment in reading, mathematics and written expression (DSM-5 315.00, 315.1, 315.2). The DSM-5 defines this as a neurodevelopmental disorder of biological origin manifested in learning difficulty and problems in acquiring academic skills markedly below age level. Despite [the child] having age expected verbal and non-verbal skills on the WISC-IV, the working memory and processing speed components of his cognitive functioning are significant deficits. This will mean that [the child] will experience difficulties in the acquisition and retention of phonological skills across literacy and numeracy, and will require additional support and a modified learning program.

   74. The academic achievement test (WIAT-II) is consistent and suggestive of the severity of a Specific Learning Disorder as described above. [The child] is performing consistently below his peers across the domains of literacy, comprehension, mathematics and spelling.

   75. The prognosis for [the child’s] learning in the future is difficult to predict given the history of poor engagement in school in previous years and the disruptive nature of his behaviour. Given that [the child] is eight years old it would not be expected that his academic skills will substantially respond to intervention programs as they would at age six, given his cognitive deficits. The magnitude of any improvement is reliably predicted by the degree of deficit and in [the child’s] case this is substantial. However given the inconsistent educational history with this child it would be still be beneficial to persist with a phonetically based intensive intervention program (e.g. Reading Recovery) and furthermore his response to such an intervention will serve as an indicator of the severity of the diagnosis. In addition to this, classroom accommodations may be made, such as the provision of a teacher’s aide and extra time given for completion of tasks.

   76. [The child’s] psychosocial and behavioural screening assessment pointed to significant difficulties around emotional regulation, hyperactivity, impulsivity and aggression. These traits were not disputed amongst either of his parents or school teachers and have been longstanding across multiple environments. Complicating this present evaluation was the fact that the child’s presentation was significantly different over the two days of being assessed. On the first occasion he was a chatty, hyperactive, impulsive child whilst two days later he presented as withdrawn, subdued and introverted.

   77. Given behavioural accounts of [the child] from multiple people across environments, combined with results from the Conners Parent Rating Scale and my own observations, it is my opinion that [the child] fulfils DSM-5 Criteria for Attention Deficit Hyperactivity Disorder (ADHD) (314.01) with the combined presentation of persistent hyperactivity and inattention. The current severity of this diagnosis is largely unattainable and would only be adequately assessed whilst the child is off any medication.

   78. Based on my own observations, review of historical reports and documentation, SCQ screener and interviews with parents and teachers I believe it is likely that [the child] does not fulfil criteria for an Autism Spectrum Disorder. This original diagnosis was suggested by clinicians who failed to provide a multidisciplinary comprehensive assessment and relied to heavily on one parent’s verbal reporting.

   79. [The child’s] diagnosis of Autism was made with the emphasis on his aggressive tendencies, hyperactivity, inattention and impulsivity – all of which are much clearer markers of an attention deficit disorder (ADHD). In this assessment I cannot see substantial evidence that the child presents with ritualistic and repetitive patterns of behaviour such as repetitive motor movements, fixated abnormal interests, rigid thinking patterns or verbal echolalia. It is reported that he has hypersensitivity to sensory inputs in his environment, but this alone is not substantial enough to justify an autistic diagnosis.

   80. Socially, [the child’s] inability to make meaningful peer relations in the past has been due to his tendency to become aggressive. In the past twelve months this has decreased and according to his classroom teacher he now has regular friends that he socialises with appropriately on a daily basis. Based on the mother’s Conners-3 Parent Rating Scales, the areas of peer relations as of the least concern to her.  Therefore it is unlikely that [the child’s] previous social difficulties can be explained by an Autism Spectrum Disorder marked by persistent difficulties in the social use of verbal and non-verbal communication. On the reports of previous assessments and current observations, the child is a socially engaging child and certainly during this assessment he was able to share items of interest, read body non-verbal language and adapt his behaviour to the environment.

2. Ms BB raised concern in relation to the father’s allegation that the mother has “shopped around”, visiting various clinicians before obtaining a diagnosis and pharmacological treatment. She made no finding that this was the case on an assessment of the objective material examined by her nor does the evidence of the child’s medical intervention history support the father’s contention. The evidence is that the child was seen by various health professionals in locations where either the parties or the mother resided.

3. It is further noted that Ms BB raised some concern as to the historical absence of input from the father as to his experiences with the child. Yet the father’s input would need to have been limited to his observations based on his limited time with the child as opposed to the mother’s observations as primary carer and the reports from the child’s present school where the child had been attending for over 12 months before Ms BB’s assessment. Ms BB, noting that the extreme differences in the parents’ reporting of the child’s behaviour, elected to put more weight on the independent observations of the child’s behaviour from independent sources including teachers.

4. Ms BB expressed concern as to the lack of “collaborative communication between professionals”. That view seems strangely at odds with the objective material reviewed by her in preparing her report, much of which is referred to above.

5. Importantly in summary Ms BB concluded:

   a)That in her opinion the child does not fulfil the criteria for Autism Spectrum Disorder;

   b)That the child fulfils the criteria for moderate - severe Specific Learning Disorder (DSM-5) with impairment in reading, mathematics and written expression, a disorder of biological origin. The child will require additional support and a modified learning program;

   c)That the child fulfils the criteria for Attention Deficit Hyperactivity Disorder (DSM-5);

   d)It is beyond her expertise to comment of the child’s medication regime except to note that the efficacy of the regime could only be assessed if the child’s medication was reduced or stopped and the consequences assessed; and

   e)That the child’s emotional state could be a consequence of parental conflict, the child’s frustration due to his learning disorder or by the presence of anxiety, low coping skills and cognitive deficits. 

6. As to Ms BB’s conclusions it is to be remembered that that the child’s living circumstances have now been stable since the mother moved to her present residence and that the child on independent assessment now presents as more settled at school and socially. It is further noted that the parties have agreed to engage with Dr D in Sydney and through him testing of the child’s medication regime may well be implemented.

Dr E report and oral evidence

1. Dr E’s report of 13 March 2015 was admitted into evidence as Exh B. He saw the parties on interview in November 2014. His report however was not completed until his receipt of the report from Ms BB in March 2015. He did not see the parties again before completing his report.

2. Dr E was cognisant of the mother’s hearing deficit and observed:

   [Ms Grinter] was wearing hearing aids and she had an expressive language style of rather staccato speech with poorly modulated tone characteristic of hearing impaired people. In addition but unrelated to any hearing deficits, she was very digressive to interview. It was difficult to keep her on a subject for very long. She also was a bit restless and fidgety and she spoke quite rapidly.

3. The mother’s presentation was similar during her oral evidence.

4. Dr E in oral evidence made comment on the child’s behaviour whilst with him and the mother. They were with him for 30-45 minutes. He observed what he described as escalating “silly, silly behaviour” by the child and then said:

   …his mother intervened and sort of got him to quiet down a little bit, but, as I say, at the end she said – she sort of said that that was pretty much the way he normally was.  So in that context I’m not too surprised that she didn’t intervene very much because I think if that’s what she was familiar with, then she probably thought, “Well, that’s just, you know, [the child],” and when he got a bit too excited, she sort of managed to calm him down, and that that was the level of sort of – that was the level of behaviour management which she thought she was able to sort of exercise at that particular time.  I mean there may have been some things she might have ordinarily done extra to that if it had have been at home, but I thought that was probably – it looked to me like – and looking at it, it looked to me like the sort of behaviour that [the child] was used to getting away with, frankly.  

5. Yet on reflection in oral evidence Dr E said that the child when with the mother responded to questions and made comment on things his mother said. The child’s speech pattern reflected to an extent that of his hearing impaired mother.

6. It was conceded by Dr E that the child’s behaviours were indicative to him of an oppositional defiance disorder (ODD) with such a disorder typically happening with the primary carer who often are disorganised in the way they seek to cope with the behaviour leading to a bit of a cycle. Dr E acknowledged that there are therapeutic interventions that could assist the mother but expressed concern that the child’s behaviour was also impacting on his ability to “learn properly”.

7. This last observation is at odds with what Ms BB concludes in that “the child fulfils the criteria for moderate - severe Specific Learning Disorder (DSM-5) with impairment in reading, mathematics and written expression… a disorder of biological origin… The child will require additional support and a modified learning program” (emphasis added). That support and modified learning program have been identified and implemented by the child’s present school.

8. Dr E expressed the view that there was no guarantee that such assistance would be made available at the school proposed by the father but was confident that it would happen. There is no objective evidence adduced by the father as to whether such assistance would be available in the short term or at all.

9. Dr E noted some improved behavioural and interactional change in the child on interview alone after the mother left the room and an improved speech pattern in her absence. Although the child later became again distracted he was able to respond appropriately to queries made of him.

10. The mother’s report as to the child’s behavioural issues was substantially corroborated by the child’s half-brother Mr G on interview with Dr E. Mr G reported that there had been an issue with the child’s behaviour that morning at the hotel. Mr G said he observed improvements generally in the child’s behaviour after he commenced on medication and saw the move to the property near H Town as having been beneficial for the child.

11. The child was with the father for two or three hours after the interview with the mother before the interview with Dr E.  The father and child were with Dr E for 30-45 minutes. The child’s behaviour was “more organised” and similar to that when he was seen alone by Dr E although the child was again “a bit restless”.

12. Dr E conceded that these observations were part of the nexus or basis for his recommendations for change of residence together with a review of historical material on subpoena.

13. Dr E identified that he held concerns that the behavioural issues may be as a result of an “environmental cause” that he identified as parenting environment as distinct from a learning disability. This was not the conclusion of the Ms BB in her diagnostic assessment.

14. As the mother was only able to attend upon Ms BB by Skype, Dr E was not able to receive some insight from Ms BB as to whether there was any disjunctive behaviour of the child with the parents. Ms BB’s report clearly for Dr E identified the child’s learning difficulties.

15. The father in his overview to Dr E demonstrated little insight into the child’s behavioural issues at school asserting that the child is “lost and a lot of his bad behaviour is learned” reflecting his poor view of the mother. In the light of other evidence referred to above the father demonstrated a disturbingly superficial insight into his child’s issues and extensive history of health professional management particularly where he seems to acknowledge the child suffers from ADHD.

16. The father on interview with Dr E relies on what the child may say to him as to the mother’s parenting style but he has no direct insight as to the child’s day to day care by the mother. Nor was she cross-examined as to it or any other deficiencies asserted by the father or behavioural issues with the child whilst in her care.

17. Yet, the observations of the child’s behaviour made by the father and the mother’s sister, Ms FF, at the time of interview in November 2014 seems to accord with the child’s improving but on occasions challenging behaviour and improved socialisation reported by his school and the mother by this time.

18. This improvement was also reported to Dr E by the child’s classroom teacher in the following terms:

    She said from the time he was enrolled in the school last year until early this year, he was only attending school for the morning session. She said it had been very difficult to get him into a normal school routine, his behaviour was very difficult and he would not follow instructions. However she said that they have been able to get him into a good routine through a program of consistency, and he has been able to work quite satisfactorily in the classroom for the past two terms. The school has also been fortunate in being able to fund an aide for him on a full time basis.

    She said that overall his achievement levels are at the early Stage 1 (or Kindergarten) level, and his reading is currently at a Level 8, compared with his classroom peers who are at a Level 20 or better. However she felt that he has the capacity to catch up with the lower end of the class by the end of next year.

    She said when he first came into her class he required close supervision in the playground. He could be quite violent and he could also pick things up and intimidate other students although I understand he did not carry through on threats with implements. She said his playground behaviour is much improved and now although he is still accompanied by his aide, the aide’s role is more one of monitoring.

    She described him as a nice boy who can be very kind and he does seem to understand and appreciate other children’s feelings. She said he was not able to do this at the beginning of the year. She said that he plays at an age appropriate level now. He has a group of nice friends and he seems quite happy socially now. She indicated that there are two other children in the school who have a diagnosis of Autism or a related disorder and that his social behaviour does not resemble theirs.

    She said that it is noticeable that his behaviour and attention deteriorate over the course of the morning and he is at his most difficult in the middle session (immediately prior to lunch). She said he is restless, he cannot focus and he is less likely to follow instructions. However a short time after he takes his medications, his behaviour settles down again.

    I asked about his communication abilities. She indicated that he can sound a little like his mother, but he generally makes his thoughts clear and he is easy to converse with. He pronounces some words with a somewhat American accent.

    I asked whether she had noticed any difference in his behaviour around his mother compared with around school staff and students. She indicated that she had not had the opportunity to observe this in any detail, however his mother had talked about some of the behavioural problems that she has with him at home. She said the impression she gained was that his behaviour tends to be governed by what he thinks he can get away with.

19. Dr E conceded in oral evidence that he had not spoken to the child’s classroom teacher again in the further six months that had elapsed until hearing.

20. Dr E noted that the child in the view of the family consultant in May 2014 appeared to be all too aware of the conflict between his parents. He expressed at first a wish to live with his mother and spend holidays with his father and then perhaps idealistically added he wanted to live with both parents. The child appeared to have a good relationship with Mr F, a “nice man”.

21. As to whether the child has any physiological, psychological or psychiatric issues Dr E concluded:

    a)The material available to me is not compatible with a diagnosis of Autism Spectrum Disorder;

    b)[The child] does have a history of being restless, distractible and overactive at times, raising the question of whether the most appropriate diagnosis is Attention Deficit Hyperactivity Disorder (ADHD). In my view, Ms BB’s comprehensive assessment confirms this. This is a condition with which he was probably born;

    c)It also appears that there is a significant deliberate element to (the child’s) behaviour which is consistent with an Oppositional Defiant Disorder (ODD) which often coexists with ADHD, particularly if parents are having difficulty managing ADHD behaviour firmly and consistently. In the child’s case it seems that this has been much more a feature of the child’s behaviour with his mother;

    d)I also note Ms BB’s conclusion that (the child) has a moderate-severe Learning Disability despite much of the child’s cognitive abilities falling within the average range. It is likely that he was born with this as well, and I note that it commonly co-exists with ADHD. In my view, Ms BB’s report should be released to the child’s school as a matter of urgency in order to assist his teacher and aide at the moment.

22. He expressed concerns in the following terms:

    Overall then, in my view the child has a Learning Disability, ADHD and an environmentally caused ODD. He was probably born with ADHD and a Learning Disability but the ODD and some oddities to his speech are largely confined to his mother’s presence. In my view these latter problems largely arise from his relationship with his mother, the attention seeking and oppositional defiant behaviour being due to an inappropriate pattern of behavioural reinforcement from his mother, and speech oddities being a perhaps unavoidable imitation of his mother’s disjointed speech patterns due to her deafness. 

    In my view [the child] is an extremely vulnerable child with a potentially quite poor prognosis for adult adjustment and success. I am also very concerned that some remediable components of [the child’s] problems are due to the way in which he has been parented, and that he behaves in an extremely regressed and inappropriate way within contexts directly affected by his mother (including school), but that he is capable of significantly more developmentally appropriate behaviour in other contexts.

    [B’s] behaviour has certainly been quite extreme, not just with his mother, but also at school at times and even now he has virtually full time aide assistance in the classroom. At the age of 8½ years he has a considerable educational delay and he has a significant gap to bridge, which [Ms BB] notes will be more difficult as he is starting later than he could have. I am not confident that [Ms Grinter] has the capacity to acquire the requisite parenting skills to be able to support him through this, including providing a different regime of parenting and interactional style. She herself has difficulty staying on track, and her approach to [the child’s] problems has been a mix of conventional and unconventional overlaid by a pattern of over-indulgence and a lack of boundaries and limits. I am concerned that what [the child] needs flies in the face of her fundamental beliefs and practices.

    I am also concerned that [Ms Grinter] does not have the parenting skills to supervise [the child] while he is being introduced to a more appropriate medication regime and the approach to his learning and behavioural problems is recalibrated based on [Ms BB’s] assessment. In my view these matters would be better dealt with professionally in Sydney. Her rather unstructured approach is not what [the child] needs at this point, however his father’s general awareness of the true nature of [the child’s] problems and his approach to [the child] himself seems more appropriate.

1. Questioned as to the mother “holding on to the child having ASD” Dr E explained:

   Look, I think historically I’m not concerned about it because I think she was – she was really struggling with his behaviour, particularly when he – before he started school, and she – she started off with alternate therapists of one sort or another and then she sort of got into mainstream medical area and at the end she ended up with a child - or a psychiatrist and a paediatrician whom I – whom I think reasonably – whose opinion I think reasonably she could think trumped the other – other less ostensibly well-trained health professionals.  And I think to some extent she’s adhering to that diagnosis because she – she has a high – a level of trust in [Dr T].  The – and he certainly – he certainly made that diagnosis and when I spoke to him, it – he didn’t seem to be too ambivalent about it either.  So I’m – and I also recall that she told me that she really hadn’t wanted to start him on medicines at all.  In fact, she had gone down the alternate healthcare route because, you know, I think, you know, philosophically, she’s not really inclined to use mind-altering drugs with children prescribed by doctors.  So I think – I don’t think it would be all that hard to persuade her that he – to change medications, frankly, because I think she was ambivalent about starting in the first place, she touched base with a lot of people and she ended up – she ended up adhering to the view of the person who she thought, understandably I think, was the best trained of them and she hadn’t really wanted medication in the first place.  So I think – I think she would be prepared to change her views on that.

   Q: And if it is that combination of those three things and probably others but you pointed out those three things – his mother, his school and his father – and that has led to this appearance of good behaviour when he’s dealing with strangers and so forth, can I also suggest that on the evidence it has also led to an increasing – increasing good behaviour at school? 

   Yes.

2. As to the child’s educational issues Dr E was of the view that the child is “further behind than his educational disability explains by itself”. This notwithstanding the findings and assessment in report of Ms BB as to the child’s significant organic disabilities. Yet overall Dr E saw the child needing support all the way through his education. The school documents and reports reveal that these educational issues referred to by Dr E are being addressed properly by the child’s present school with the mother being engaged in that process.

3. As to the child’s time with the mother if he should live with the father, Dr E, in agreeing that in the father’s household there is “a high degree of structure”, saw time with the mother as being 12 out of 14 days in the mid-year holidays, half of the Christmas holidays and a midterm weekend as a “better balance”.

4. Yet there is no evidence that the father’s household has a “high degree of structure”. Indeed Dr E later described the father’s “structure” as holiday time and an artificial situation. The father is a lodger in his elderly grandmother’s home, is self-employed, has little income, will need to place the child in before and after school care, will need to rely on his mother who lives some hours’ drive from Sydney in times of emergency, and has it appears little availability during work hours by reason of his occupation to attend school on short notice or to attend necessary medical interventions mid-week.

5. As to “structure” Dr E suggests that some “other professionals” have found the mother “unpredictable and scattered in her approach”. No such evidence was referred to by him and he acknowledged that any such inference arose from the mother’s attendance on those “other professionals” where no one had done a home visit. Dr E referred to “several other professionals” pointing to the relative incompatibility between the way the mother described the child and how the child presented away from the mother. Yet the child’s school records and matters reported by the school to Dr E display no such incompatibility with the child’s classroom teacher describing the child’s behaviour initially as “the worst I have seen”. It is to be inferred that any other report must have come from the father who chose to adduce no evidence supporting his contentions in this regard.

6. It was conceded by Dr E that the mother would benefit from advice on how to deal with aspects of the child’s ODD and to date she had not had such advice and help. That clearly is a matter that can be addressed by Dr D in consultation.

7. Ultimately there was the impression that Dr E was ambivalent about his recommendations. This was made more clear when he concluded his oral evidence in the following terms to Counsel for the Independent Children’s Lawyer (ICL):

   Q: So I take it on striking that balance, it’s your view, is it not, that the better option, if I put it that way, is that he live with the father, and in view of – that outweighs the possible distress;  is that right?  

   Yes.  Look…      

   Q: Very simply put?  

   Well, yes.  When I was – if I could just say – reply in this rather lugubrious way, I always feel – well, not uncomfortable, but I think it’s inappropriate to recommend – to make recommendations that really can’t be contained within final orders.  It’s not very much help to anybody.  What I did in this case was to sort of break that rule a little bit.  I – because I was sort of worried about this countervailing kinds of things, I suggested that perhaps, in a sense, a final disposition could be delayed until we just saw how dad went at it.  And I think I suggested if the parents could agree to it, a change – to a change, and he stayed – I think at that point I suggested 18 months or something like that – with his dad, and then at the end of that time, if the parties wished it, there could be a final hearing then.  It’s really unusual for me to make that.  So I guess I would have to say that indicates how much of a – how much I was on the horns of a dilemma and not really knowing for sure      

   Q: So it’s certainly the case?   What was the right answer, that you didn’t give any consideration to the distress, is what you’re saying.  It was a major factor?  

   Yes.

   But on the balance of it, you came down on the side of [the child’s] needs would be best met if [the child] were to live with the father, at least, in the immediate term?  

   Well, I thought that there was a significant – I thought there was a likelihood that this would turn out to be a good – a better option, and that – and that delaying the final hearing would give an opportunity for the court to find out whether, in fact, I was right or not.  But I still think it’s the best option, but – but it’s a difficult call.

8. Ultimately the Court is left in a quandary about the overall tenor of Dr E’s evidence.

9. These are proceedings for final parenting orders. No one seeks interim orders to “see how things go for 18 months”.

10. The ultimate issue sees a significant dislocation of this child from settled circumstances where the child has established social and community capital. The Court is charged with making final orders. No one seeks otherwise. As such there should be clear and cogent reasons indicative that it is in the best interests of the child for removing him from the primary care of his mother. In considering Dr E’s evidence there are not.

11. As was said by the Full Court in Hall (1979) 5 FamLR 609 there is “no magic in a family report”.

Mr F

1. The father makes assertions as to the risk to the child from the mother’s companion Mr F. He gives evidence of the child telling him in July 2012 that Mr F has “been hitting and strangling me”. The father says he contacted the Department of Family and Community Services but does nothing else, not even contacting the mother. The father complains at Easter 2013 of the child saying that he had seen inappropriate video images with Mr F. The father says he again contacted the Department of Family and Community Services. He spoke to the mother who denied it and then he did nothing.

2. Sometime after September 2013 the child again complained about Mr F: “he chokes me, I’m scared of him”. The father says he again contacted the Department of Family and Community Services. He otherwise did nothing.

3. The father asserts seeing a bruise on the child’s chest in February 2015. The child asserts that Mr F punched him. The father did not seek medical attention for the child but says he contacted the Department of Family and Community Services with nothing coming of the report which it appears was not followed up by the father. The Department it appears has taken no action.

4. On 20 March 2015 an interim order was made to the effect that the child not be left alone with Mr F. That order was later continued pending further order.

5. Yet in June 2015 the child confides in the father “I think it was my fault I got the bruise” in circumstances where the father concedes the child can be “quite creative”.

6. The evidence of Mr F and the child’s older brother identify some robust play in mid-February 2015 but neither observed the bruise on the child. The mother recalls a bruise but attributes it to a fall off the child’s BMX bike due to marks left by what she says were the two handlebars of the bike. She describes the child as a “boisterous, clumsy, typical little boy”.

7. Save for the bruise incident the child makes no other complaint or more recent complaint as to Mr F. Mr F gave evidence at trial. He denies any untoward conduct in relation to the child. The child made “several positive references” to Mr F when attending upon Dr E with his mother.

8. In the circumstances there is no evidence such as would support a finding that there is any unacceptable risk to the child in being in the company of Mr F unsupervised.

Child support

1. The mother complains of little financial support from the father, having received about $3,000 in total in 2011 and 2012 and nothing thereafter.

2. The father’s child support assessment dated 23 June 2012 for the period 11 May to end of December 2012 was only about $25 per week on an income he asserted to be $29,014 for the 2010/2011 year.  Yet when he filed his 2010/2011 tax return his child support liability was assessed at $793 per month on a taxable income of $80,743. Nothing has been paid by him.

3. He does pay for the child’s travel costs for the child’s time with him and some indirect costs for the child. He has no private health insurance. His income is extremely modest, yet he borrowed on hire purchase to recently purchase a motorbike.

The father’s proposal

1. At the time of trial the mother and child continued to reside at V Town. The father was residing in his grandmother’s home at Suburb GG in the northern suburbs of Sydney.

2. The father proposes to continue to live at Suburb GG. Yet his ability to continue to do so is uncertain should his grandmother pass away. He asserts that his grandmother’s carer is available to help should the child live with him. She was not called to give evidence.

3. He asserts conversations with the Deputy Principal of Suburb JJ School, where he proposes that the child attend, as to additional support for the child that involves an application for the present funding for the child being transferred. He adduces no formal evidence as to same save for a letter confirming that, if the child lives with him in the school catchment area, a place would be available. There is no objective evidence as to the availability of appropriate local services for the child.

4. The father is self-employed, working in the northern beaches area of Sydney.  He proposes that the child be placed in before and after school care as required or be delivered to and picked up from school by the child’s paternal grandmother who lives some two and a half hours’ drive away, or his grandmother’s carer. He had not spoken to the carer about any financial arrangements for such assistance and indeed has little capacity to afford any paid assistance. He expects to drop the child at school at 7.30am to fit around his work commitments. His grandmother, it is inferred, can be of little assistance as she is only mobile with a walking frame.

5. The child’s paternal grandmother said she could only assist for a week or so after the child came into the father’s care and would need some hours’ notice to assist in Sydney if required if she was otherwise at home in HH Town. She only works at present five to six days per month in Sydney and attends medical appointments in Sydney. She stays for periods of up to three days at her mother’s home at Suburb GG. Of concern is that she has not spoken to the mother since 2012; their relationship is non-existent. Assistance to the father in the day to day management of the child is therefore a matter of conjecture.

6. The child’s paternal grandmother agrees that the child has behavioural problems but that “he is gradually getting better”, identifying no recent issues.

7. The father seems to have a superficial understanding of the detailed considerations relating to the child. He has had holiday and weekend time but has not been exposed to the daily routine issues that on the mother’s evidence can be challenging. The father has had little engagement with the child’s health professionals except in some circumstances in an almost confrontational way. He rejects any suggestion that the child is within the autism disorder spectrum yet acknowledges the child’s ADHD, oppositional defiance traits and hyperactivity.

8. The father asserts to the Single Expert Dr E that he sees the child as being better off with him as a male, feels he has a good understanding of the child, could look after the child very well and support the child’s education better than the mother does. How that is so compared to the settled arrangements the child is now in is not evident from the father’s case.

9. The father to a concerningly significant extent remains untested as a primary carer for the child. This concern is reflected by the Single Expert, Dr E. The father acknowledges that a change of residence and school will “throw [the child] out” and the child will “test his boundaries”.

10. The father surprisingly suggests that the child can “stand on his own feet”, a circumstance that belies the mother’s experience, that of the child’s school and that of the child’s health professionals. The father’s insight appears to be naïve.

11. The father’s proposals as to the mother’s time with the child are referred to above.

Parenting

1. The relevant principles in relation to parenting proceedings are well settled: see Goode and Goode (2006) FLC 93-286. The High Court in MRR v GRR (2010) 240 CLR 461 affirmed the legislative pathway.

2. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act.

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a)      Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)      Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)      Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)      Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   (a)      Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)      Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)      Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)      Parents should agree about the future parenting of their children; and

   (e)      Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

3. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

4. Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

5. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.

6. The presumption relevantly does not apply where:

   a)  There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];

   b) …

   c)  If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].

7. If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of section 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.

The Presumption: Equal Shared Parental Responsibility

1. The mother and father having equal shared parental responsibility is agreed to by them and supported by the ICL.

2. There is nothing in the best interests considerations referred to below that would contra-indicate that position: (see s 61DA(4)). It is appropriate that they both engage in long term issues relating to the child.

3. An order for equal shared parental responsibility will be made.

Equal or Substantial and Significant Time: Section 65DAA

1. In light of there being an order for equal shared parental responsibility, it is required that consideration be given as to whether the child spending equal time with each of the parents is in the best interests of the child and reasonably practicable, and if so, to consider making an order for such equal time.

2. If not the Court is then required to consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child and reasonably practicable.

3. “Substantial and significant time” is defined to include time that includes days that fall on weekends and holidays and days that do not fall on weekends or holidays and time that allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child and/or parents.

4. In circumstances where the parties live in Sydney and the central west of New South Wales, the exigencies of distance and cost render both equal time and substantial and significant time impracticable. Time will of necessity be limited to school holidays and weekends during school term.

5. Accordingly orders to be made must be considered in the light of the best interest considerations.

Best interests of the child: s 60CC

1. Returning to the three primary questions issues identified at the commencement of these Reasons for Judgment, they are:

   a)Any risk of  harm to the child;

   b)The likely effect of a change in the child’s circumstances as advanced by the father; and

   c)The respective parenting capacity of the parties in terms of meeting the child’s special needs both in the past and into the future.

2. The overview of the evidence above touches on these issues and they are considered below in the context of the best interest considerations.

The Primary Considerations: s 60CC(2)

1. The primary considerations are:

   a)The benefit to the child of having a meaningful relationship with both of the child's parents; and

   b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. In Mazorski & Albright [2007] FamCA 520 Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:

   What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

3. In McCall & Clark (2009) FLC 93-405 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”.

4. The ICL contended that both parents have the capacity to remain emotionally close to the child and seek involvement in the child’s life, with the mother possessing a loving and attentive approach to the child. Such contention is readily adopted and is a meaningful aspect of the parties’ prospective relationship with the child.

5. Subject to the exigencies of distance the child will maintain a close and meaningful relationship with both parents.

Risk

1. A consideration of the need to protect the child [s 60CC(2)(b)] in part arises as to the child’s contact with the mothers companion Mr F. For the reasons set above this is not a relevant matter.

2. There is no evidence to sustain a finding that the mother has neglected the child’s treatment needs so as to amount to abuse or constitute risk notwithstanding the ICL’s contention as to such risk. The ICL relies on the father’s allegations as to the mother “over-diagnosing” the child, seeking treatment according to her beliefs, the child being assaulted and being exposed to pornography. The evidence does not sustain any of such allegations. Indeed the mother has been guided by both the Central West Area Health Service and the child’s school now for several years. It is not suggested that such engagement was inappropriate. The mother has been intimately involved in the child’s medical and educational needs, not so the father.

3. This is thus not a relevant consideration and thus resolves the first of the questions for determination.

The Additional Considerations: s 60CC(3)

1. The additional considerations are set out in s 60CC(3) of the Act. The factors contended to be relevant are considered below. Regard has been had to all of the factors.

2. It is not contended that any weight should be afforded to any views expressed by the child and there is no relevant context that could assist save for Dr E’s report that the child spoke positively of both parents and, of some significance, his brother Mr G.

3. The child enjoys a good relationship with both parents. It is not suggested that the child’s day to day needs are not being met by each of them.

4. The mother has been the child’s primary carer since birth and it is to be inferred that the child enjoys a strong attachment to her particularly in the overarching circumstances of his disabilities. Aspects of the mother/child relationship are discussed above. The father has a strong relationship with the child and the child moves freely between both parents. The limitations to the observations by Dr E in interview are referred to above.

5. Dr E identified the parents’ high degree of distrust yet is of the view that it is not a significant contributor to the child’s behavioural and emotional problems which provide a context for the child’s relationship with each parent. Clearly this distrust overshadows the inter-parental relationship, particularly in the context of unresolved final parenting proceedings.

6. The child has a good relationship with his older half-brother who it is to be inferred is a significant person in the child’s life. He also is engaged with the extended paternal family.

7. In the context of considering the child’s relationships, the ability of each of the child’s parents to encourage a relationship between the child and the other parent into the future is problematic by reason of their mutual distrust. However the mother has more recently abided by Court orders for the child’s time with the father and her actions have seen the child enjoy a good relationship with the father. The father is untested in this regard and although asserting that he would meet the child’s travel expenses for time with the mother, his financial circumstances as represented by him reveal little capacity to do so without family help. There is some confidence that both parents will abide by Court orders.

8. The mother has clearly been more involved in the child’s life as primary carer and in long term decisions relating to the child particularly as to education and medical issues. For a number of reasons the father has been mostly absent in this regard. He has chosen to live remotely from the child notwithstanding his occupation in the trades may enable him to work in much closer circumstances to the child. The father has taken the opportunity to spend time with the child under interim orders.

9. The mother has been the primary financial provider for the child since 2010, admittedly mostly by reason of government benefits, although she has sought work from time to time. The exigencies of the full time care of this little boy have severely limited her ability to work. The father has been in salaried employment and more recently been self-employed in the building industry. Yet he has failed to provide financial support for the child save for some random payments over a period of years and his cost of having time with the child. It was not his contention he could not afford to pay regular periodic amounts but it appears he has chosen not to in disregard of the welfare of his child.

Change of circumstances

1. The second primary issue relates to the likely effect of any change to the child’s circumstances.  Some aspects of this have been discussed above. Any change to live with the father will be a “wrench” for the child. Primarily he will be separated from his primary carer, his mother. He will be removed from settled circumstances as to community, accommodation, schooling, extra-curricular activities, friendship groups and settled medical and educational support: all significant and established social capital. With the overarching issues as to the child’s diminished educational capacity, ODD and ADHD, the effect on the child is likely to be significant and aspects of its manifestation in behavioural and emotional issues unpredictable.

2. A change to the father is a move into untried territory. He has never had primary care of the child and his ability to cope and deal with this child’s overwhelming issues in circumstances where the child is thrust into a foreign long term environment causes Dr E concern.

3. At present it appears that the father is able to afford the child’s travel for the purposes of school term and holiday time in circumstances where he spends some of that time in the C Town area and otherwise flies the child to Sydney. There appears to be no practical difficulty in that continuing. On the other hand he would thus be able to afford the child’s travel to spend time with the mother and he has offered to do so. The mother has no capacity to relocate to Sydney.

4. It is to be inferred that Mr G would be able to see the child when University and school holidays coincided. The child has an appropriate relationship with the paternal grandmother that will continue regardless of orders to be made.

Capacity

1. The third primary issue was the respective parenting capacity of the parties in terms of meeting the child’s special needs both in the past and into the future.

2. The mother’s role in the past with the child and her engagement with health and education issues is set out in detail above. It is to be inferred that should the child remain with her she will continue to remain so engaged albeit under the agreed guidance of Dr D in Sydney. Dr D, it is to be inferred, may also assist her in seeking guidance as to coping methods for the child’s behavioural aberrations if considered necessary.

3. The mother has settled accommodation and resides in a small rural community where the child thrives. She will continue to receive government benefits subject to her ability to undertake part time work and completion of her studies.

4. Counsel for the father acknowledged that capacity is the nub of the issue and identified areas of asserted concern in relation to the mother. These contentions were supported by the ICL.

   a)Medical care involving differences in parenting style, some interventions for the child not undertaken and difficulty in accessing regional services:  Yet ultimately Dr E was ambivalent in relation to parenting style, making significant concessions in relation to his asserted conclusions arising from limited interviews with the parties. He did not hold the mother responsible for the perceived lack of some recommended interventions, attributing same to the nature of regional services. The parties agreed involvement with Dr D will give them an agreed practitioner so as to resolve the present distrust.

   b)The mother’s food plan that was indicative of an allergy test being needed for the child: The father has a similar view to that of the mother and is also conscious of the child’s issues in this regard. He has not sought to do so. This can be addressed if the parents have concerns through Dr D.

   c)The issue of the child’s medication: This was clearly an issue between the parties. The mother continued to follow her specialist medical advice. Both parties agree that they will be guided by Dr D who will, it is to be inferred, recommend coping techniques in the event of behavioural breakouts by the child if and when his medication is trialled by gradual reduction.

   d)Education with reference to absences in 2014 and tutoring: The child’s engagement in early 2014 was problematic by reasons of aberrant behaviour. The evidence is clear as discussed above that the child has made significant progress in late 2014 and into the 2015 school year. The father’s unilateral tutoring request without the offer of financial assistance was trialled by the mother with the child being unable to cope due to tiredness after a full day at school.  

   e)The child’s behaviour with the mother: This substantially arises from the “interview observations” related by Dr E as underpinning his initial conclusions. He made significant concessions as to those conclusions as discussed above.

   f)The inconsistency of the provision of medication for the child when spending time with the father: This issue relates to several specific occasions only with the mother providing her explanation in her oral evidence.

   g)The mother’s “chaotic parenting”: There is no evidence to support this contention. There are perceived differences in parenting style that were the subject of the oral evidence by Dr E referred to above.

   h)The father’s ability to implement a regime for the child: This assertion as to ability to be a full time carer is not supported by the evidence in particular Dr E’s observations as to “holiday time”. The father is simply untried. Objectively his personal circumstances as to accommodation, employment and his availability to the child should the child be in his full time care are concerningly problematic.

5. The ICL contended that the mother’s capacity poses a risk to the child as questions remain as to her capacity to instigate appropriate treatment programs for the child. What such programs are at present was not identified by the ICL.  The evidence does not support that contention at trial. Indeed Dr E expressly put her engagement in the proper context of the resources available to the mother.

6. Counsel for the mother submitted that the mother had been the primary carer for the child particularly over the five year period prior to trial. The mother agrees to the intervention of Dr D who will perhaps offer a different perspective to the child’s ongoing needs and diagnosis. The mother acknowledges the child’s present diagnosis centres on ODD and ADHD. It was further submitted the father for three years had little engagement with the child and provided little support. The evidence supports that contention.

7. The mother has been appropriately engaged with the child’s school in particular in the context of the child’s difficult presentation during early 2014 that placed significant demands on her to be available for the child each day. The father played no active role in the child’s educational difficulties but remained critical of the mother from afar.

8. The child’s progress at school has markedly improved with the child’s school now engaged in educational catch up and the child presenting as more settled in his interpersonal skills. The child’s improvement is reflected in the evidence of the paternal grandmother and the father.

9. The father needs to demonstrate a much better capacity to engage in the child’s life circumstances. He has not done so to date, being content to seek to criticise from afar.

10. In considering the overall evidence particularly the oral evidence of Dr E that rendered his report recommendations to be much more ambivalent, the evidence establishes that the mother prospectively has a better capacity to provide for this child in circumstances where the father will have a substantial relationship with the child, where the parties have agreed to a specialist practitioner for guidance as to the child’s needs, where the father, should he wish, could be more engaged in the child’s day to day life circumstances particularly schooling and where he could engage and better communicate with the mother as to the child.  

11. As submitted by counsel for the mother, overall the evidence as to capacity presents a fragile basis for the proposed huge change to the child’s residence, primary care, schooling and medical support. In addition regard must be added the child’s social capital in his area of residence and his settled lifestyle in a rural setting.

12. Matters relevant to the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents have been considered in the factual matrix discussed above. They do not need repeating here save to say that the mother has assumed the overwhelming burden of this difficult young child with little or no practical support from the father who by his own choice has remained distant. As such the mother in the circumstances she has found herself has displayed a most appropriate attitude to the child and her responsibilities.

13. Should final orders be made? The parenting arrangements for the child need to be resolved in the context of this ongoing litigation. It is not submitted that interim orders be made, nor are they appropriate.

14. The child will benefit from defined arrangements and the parties by agreement engaging with an agreed specialist practitioner. Whether orders will be least likely to lead to the institution of further proceedings is a matter for conjecture in the context of this child’s life circumstances.

Final discussion

1. A consideration of the best interest considerations above is not indicative of such a major disruption as contended for by the father.

2. Significant considerations must exist to upset a long established primary care situation by reason of a consideration of the relevant best interest factors. Overall no such considerations are indicative of the need to remove the child from the mother’s primary care.

3. The evidence of Dr E in considered in detail above. Whilst Dr E’s report makes recommendations, the ultimate tenor of his evidence after cross examination renders his evidence ambivalent and uncertain. He concedes that his conclusions as to the mother arise mainly from observations in interview and when tested he made significant concessions in that regard and in regard to other criticisms of the mother.

4. Overall it is not proposed to follow the recommendations of the report writer for the reasons discussed above.

5. The parties have agreed to equal shared parental responsibility. The ICL supports such an order. The parties agree to the engagement of Dr D.

6. Having regard to the best interest of the child orders will be made that facilitate the child continuing to live with the mother.

7. The father’s time with the child has for some time been the subject of interim orders and such arrangement should substantially continue save for the child having more extended time with the father in school holidays as conceded by the mother but leaving her with some holiday time and a reduction in the times the child travels by plane to Sydney to one weekend a school term with Dr E seeing any more being too disruptive. The father should if he is able, and as he has demonstrated in the recent past, spend other school term weekend time with the child in the C Town area.

8. Orders will be made accordingly.

I certify that the preceding two hundred and seventy-seven (277) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 25 November 2015.

Associate: 

Date:  25 November 2015