Roberts & Roberts
[2009] FMCAfam 912
•31 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ROBERTS & ROBERTS | [2009] FMCAfam 912 |
| FAMILY LAW – Parenting – importance of the children having a meaningful relationship with their father – impact of autism spectrum disorder on child’s capacity to manage overnight time. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 62G, 65DAA |
| Mazorski & Albright (2007) 37 Fam LR 518 McCue & Costa [2009] FamCAFC 92 |
| Applicant: | MR ROBERTS |
| Respondent: | MS ROBERTS |
| File Number: | CAC 1325 of 2008 |
| Judgment of: | Bender FM |
| Hearing dates: | 9 & 10 July, 7 August 2009 |
| Date of Last Submission: | 7 August 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 31 August 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Haughton |
| Solicitors for the Applicant: | Elrington Boardman Allport |
| Counsel for the Respondent: | Mr Ryan |
| Solicitors for the Respondent: | Last and Maxwell Solicitors |
| Solicitors for the Independent Children’s Lawyer: | Mr Stagg – Legal Aid Office (ACT) |
ORDERS
All previous parenting orders be discharged.
The parties have equal shared parental responsibility for the children [X], born in 2001 and [Y], born in 2003 (“the children”).
The children live with the wife.
The children spend time with the husband as follows:
(a)on 19 September 2009, from 9.00am to 4.00pm;
(b)on 8 October 2009, from 9.00am to 4.00pm;
(c)on 17 October 2009, from 9.00am to 4.00pm;
(d)on 6 November 2009, from 9.00am to 4.00pm;
(e)
on 28 November 2009, from 9.00am until 4.00pm on
29 November 2009;
(f)
on 18 December 2009, from 9.00am until 4.00pm on
19 December 2009;
(g)
on 26 December 2009, from 9.00am until 4.00pm on
27 December 2009;
(h)
on 5 January 2010, from 9.00am until 4.00pm on
6 January 2010;
(i)
on 15 January 2010, from 9.00am until 4.00pm on
17 January 2010;
(j)
on 25 January 2010, from 9.00am until 4.00pm on
27 January 2010;
(k)
on 6 February 2010, from 9.00am until 4.00pm on
7 February 2010;
(l)
on 26 February 2010, from 9.00am until 4.00pm on
27 February 2010;
(m)on 6 March 2010, from 9.00am until 4.00pm on 7 March 2010;
(n)
on 26 March 2010, from 3.00pm until 4.00pm on
28 March 2010;
(o)for two periods of four days and three nights in the April 2010 school holidays from 9.00am on Day 1 to 4.00pm on Day 4, such periods to be nominated by the husband no less than four weeks prior to the nominated dates;
(p)for a period of four days and three nights in the October 2010 school holidays from 9.00am on Day 1 to 4.00pm on Day 4, such period to be nominated by the husband no less than four weeks prior to the nominated dates;
(q)
for three periods of four days and three nights in the 2010/2011 long summer vacation from 9.00am on Day 1 to 4.00pm on
Day 4, such periods to be nominated by the husband no less than four weeks prior to the nominated dates;
(r)from May 2010 onwards, for five weekends in each three month cycle, such weekends to be nominated by the husband no less than four weeks prior to each cycle, with the husband’s time on such weekends to commence at either 3.00pm Friday or 9.00am Saturday (depending on the husband’s work commitments) and conclude at 4.00pm on Sunday;
(s)in 2011, for two periods of one week to take place during the school holidays, such periods to be nominated by the husband no less than four weeks prior to the nominated dates;
(t)from 2012 onwards, for two periods of two weeks in each year during the school holidays, such periods to be nominated by the husband no less than four weeks prior to the nominated dates; and
(u)as otherwise agreed between the parties.
Changeover for the time set out in order 4 herein shall take place as follows:
(a)during school term:
(i)at the commencement of the husband’s time with the children on a Friday, the husband shall collect the children from school;
(ii)when the commencement of the husband’s time with the children falls on any other day than a Friday school day, the husband shall collect the children from [C] McDonald’s. If the children have soccer, the husband shall collect the children from the soccer field; and
(iii)at the conclusion of the husband’s time with the children, the wife shall collect the children from the husband’s residence or such other place as agreed between the parties;
(b)during school holidays:
(i)the husband shall collect the children at the commencement of the school holiday time from school if time is to commence on the last school day, or from [C] McDonald’s if not a school day; and
(ii)at the conclusion of the husband’s school holiday time with the children, the wife shall collect the children from the husband’s residence.
The children shall always spend the Mother’s Day weekend and the wife’s birthday with the wife and the husband shall not, when nominating time with the children pursuant to order 4(r) herein, nominate those weekends.
Subject to the husband’s work commitments, the children shall spend the Father’s Day weekend and the husband’s birthday (if this birthday falls on a weekend) with the husband.
If the husband commences employment where he is no longer required to work on weekends, then order 4(r) herein be vacated and the husband shall spend time with the children each alternate weekend from after school on Friday until 4.00pm Sunday and during school holidays as set out in orders 4(s) and 4(t) herein, with changeover to continue to take place in accordance with order 5 herein.
The parent with whom the children are not living or spending time with shall have liberal telephone contact and email communication with the children at all reasonable times. Each party shall ensure that the children have access to internet and telephone communication with the other party.
Each party be permitted to liaise directly with any school that the child/children may attend from time to time to obtain information about the child’s progress and special school days including carnivals, ceremonies, award days, concerts, and parent/teacher interviews and to obtain copies of any school reports, newsletters and school photograph order forms.
Each party be permitted to attend the children’s extra-curricular and sporting activities and special school events such as award days, concerts, ceremonies and parent-teacher interviews.
Each party be permitted to liaise directly with any doctor, dentist or medical practitioner who examines or treats the child/children from time to time and if necessary, sign such authority for the doctor, dentist or medical practitioner to speak with the other parent.
Each party shall consult the other in advance of any medial treatment, and the parties keep the other advised of all medical appointments and details of all medical practitioners, doctors and dentists consulted in relation to the child/children.
Each of the parties provide any known dietary guidelines and dietary preferences of the child/children to the other party.
The parties shall provide a copy of these orders to [Y]’s treating specialist paediatrician with a request such specialist provide the parties with advice and guidelines as to how to best assist [Y] to adjust to his time with the husband pursuant to these orders.
The parties comply with all such advice and guidelines provided by [Y]’s treating specialist paediatrician pursuant to order 15 herein.
Each party and their servants and agents are restrained from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of the children or any of them, and from permitting any other person so to do; and
(b)discussing these proceedings with or in the presence or hearing of the children or any of them, and from permitting any other person so to do.
The independent children’s lawyer is requested to meet with the children prior to 19 September 2009 to explain these orders to the children and the parties be restrained from discussing the outcome of these proceedings with the children until after such time as the independent children’s lawyer has met with the children pursuant to this order.
IT IS NOTED that publication of this judgment under the pseudonym Roberts & Roberts is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 1325 of 2008
| MR ROBERTS |
Applicant
And
| MS ROBERTS |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties are seeking orders in relation to the arrangements for their children [X] born in 2001 (“[X]”) and [Y] born in 2003 (“[Y]”).
The husband is seeking orders that [X] and [Y] live with the wife and spend time with him on those nominated weekends when he is not working, commencing for a full day only, then increasing to overnight Saturday and ultimately to a regime of after school Friday to 6.00 pm Sunday. In addition, the husband seeks school holiday time for two periods of seven days in 2010 to May 2011 and thereafter for two periods of two weeks per year.
The wife is seeking orders that [X] and [Y] live with her and spend four hours with the husband in [C], although it was not clear how regularly she proposed this four hours of time take place. It is her proposal the parties are to be bound by the children’s wishes in the event they wish to spend less (or more) time with the husband.
Background
The husband was born in 1960 and is 49 years of age. He is employed as an [occupation omitted] at Canberra. He resides in Canberra with his de facto partner, Ms S.
The wife was born in 1970 and is 39 years of age. She lives in a property on the children’s school in [N] where she is self-employed [occupation omitted]. Also living in the household with the wife and children is her son [Z] aged 15 years (“[Z]”).
The parties commenced living together in January 2000 and married in October 2000.
They separated in May 2005, though the husband “didn’t know they had separated until January 2006”. He was working away from the matrimonial home during this period.
The husband has three adult children from his previous marriage.
The wife has two children from her previous marriage aged 19 and 15 years. The youngest child, [Z], lives with her.
After the birth of the children, the husband was not in paid employment and was actively involved in the children’s care. The wife suffered from post-natal depression following [Y]’s birth. The parties resided in [N] during this period.
Approximately ten months after [Y] was born, the husband obtained employment away from [N] firstly as a farm hand on a large property at [R], then in [O] and then in Canberra. The husband would return to [N] at weekends.
After separation, the husband saw the children each alternate weekend. He was truck driving and would collect the children on his run home Friday, take them to Canberra and return them Sunday evening.
In October 2006, the husband obtained his current employment as an [omitted]. This employment requires the husband to work on a four-day rotation which makes his weekend availability inconsistent, though he has three weekends in each eight when he is not required to work.
At the time the husband commenced his current employment, difficulties arose in relation to the arrangements for the children spending time with the husband and their time with their father became haphazard. The parties attended Relationships Australia and the Assisting Responsible Care for Kids (“ARCK”) Program at Marymead but were unable to reach agreement, especially in relation to the children spending overnight time with the husband. In October 2008, the husband commenced these proceedings as he had not seen the children for many months.
The parties resolved property matters as between themselves and orders were made by consent pursuant to Part 10.8 of the Family Law Rules on 21 August 2008.
In September 2008, [Y] was diagnosed with Autism Spectrum Disorder. Concerns had arisen because of the developmental difficulties he had displayed in the areas of language, social and emotional interactions and learning delays. The wife did not advise the husband that she was arranging for [Y] to be assessed and the husband was not involved in the initial assessment of [Y].
The matter first came before Federal Magistrate Brewster on
17 November 2008 and orders were made by consent for equal shared parental responsibility, for [Y] to spend approximately two hours with his father on specified dates at the home of Mr J in [N] and for [X] to spend time with her father overnight at his home in Canberra.
The matter was next before the court on 3 December 2008 where Federal Magistrate Brewster ordered the husband spend an hour with [Y] on one occasion at the home of Mr J in [N] and that he spend overnight time with [X] in Canberra.
On 16 December 2008, Federal Magistrate Brewster made orders that there be parentage testing conducted in relation to [Y] (the circumstances leading to the making of this order will be explored later in this judgment). The orders made provision for the husband to spend day time with [Y] on specified dates and with [X] overnight on the same dates as he was with [Y].
On 16 February 2009, Federal Magistrate Brewster made orders that the children spend time with the husband between 9.00 am and
5.00 pm on specified dates (to coincide with the husband’s rostered time off). It is not clear from the evidence whether this time was spent in [C] or at the husband’s home in Canberra.
Since the February 2009 orders, the children have been spending regular day time (or approximately four hours) with the husband approximately every two to three weeks in [C]. [X] spent time with the husband in Canberra overnight once last year and in January 2009, but not since that time. [Y] has not spent overnight time with his father overnight since February 2008.
Evidence
The husband’s proposals
The husband’s proposals are set out in a proposed minute that was handed to the court on 7 August 2009. His proposals are set out in detail below:
1.The parties have equal shared parental responsibility for the children [X] (born in 2001) and [Y] (born in 2003).
2. The children live with the mother.
3. The children spend time with their father as follows:
(a) On 16 August 2009 from 9.00 am until 4.00 pm;
(b) On 30 August 2009 from 9.00 am until 4.00 pm;
(c)On 19 September 2009 from 9.00 am until 12.00pm on 20 September;
(d)On 8 October 2009 from 9.00 am until 2.00 pm on
9 October 2009;
(e)On 17 October 2009 from 9.00 am until 4.00 pm on
18 October;
(f)On 6 November 2009 from 3.00 pm until 5.00 pm on
8 November;
(g)On 27 November 2009 from 3.00 pm until 5.00 pm on 29 November;
(h)On 18 December 2009 from 3.00 pm until 5.00 pm on 19 December;
(i)On 26 December 2009 from 9.00 am until 6.00pm on 29 December;
(j)On 5 January 2010 from 9.00 am until 6.00 pm on
8 January;
(k)On 15 January 2010 from 9.00 am until 6.00 pm on
18 January;
(l)On 25 January 2010 from 9.00 am until 6.00 pm on
28 January;
(m)On 5 February 2010 from 3.00 pm until 6.00 pm on
7 February;
(n)On 26 February 2010 from 9.00 am until 6.00 pm on 27 February.
(o) From March 2010 and following:
(i) Five weekends per three months cycle as nominated by the father;
(ii) School holidays:
1)School holidays for seven nights on two occasions during the year until 6 May 2011 as nominated by the father; and
2)From 6 May 2011, for one fortnight twice per year as nominated by the father.
4. That handover shall be as follows:
1)During school term:
a. When contact commences on a Friday, the father collect the children from school;
b. When handover falls on any other day than a Friday school day, the father collect them from [C] McDonald’s at 9.00 am. If they have soccer on this day, the father collect them from the soccer field.
c. For their return, the mother collect the children from the father’s residence or [B] McDonald’s on the handover day on either the Saturday afternoon or the Sunday afternoon, whichever is applicable at 4.00 pm for AEST and 6.00 pm for AEDST.
2)During school holidays, the father collect the children at the commencement of the school holiday contact from school if contact is to commence on the last school day, or from [C] McDonald’s if not a school day, and the mother collect the children from the father’s residence at the completion of the school holiday contact period.
5.If the father commences employment where he no longer is required to work on weekends, then the father shall spend time with the children every second weekend from after school on Friday until Sunday afternoon and school holidays as set out in order 3(o) with handover as set out in order 4.
6.That the parent with whom the children are not living or spending time with shall have liberal telephone contact and email communication with the parent (sic children) at all reasonable times. Each party shall ensure that the children have access to internet and telephone communication with the other party.
7.That each party be permitted to liaise directly with any school that the child/children may attend from time to time to obtain information about the child’s progress and special school days including carnivals, ceremonies, award days, concerts and to obtain copies of any school reports and/or newsletters.
8.That each party are permitted to attend the children’s
extra-curricular and sporting activities and special school events such as award days, concerts, ceremonies and parent-teacher interviews.
9.That each party be permitted to liaise directly with any doctor, dentist or medical practitioner who examines or treats the child from time to time and if necessary, sign such authority for the doctor, dentist or medical practitioner.
10.That each party keep shall consult in advance of any medical treatment and the parties keep the other advised of all medical appointments and details of all medical practitioners, doctors and dentists consulted in relation to the child.
11.That each (sic of the) parties provide any known dietary guidelines and dietary preferences of the children to the other party.”
The husband is also seeking orders in relation to the costs incurred by him for the parenting testing that took place pursuant to the orders that were made by Federal Magistrate Brewster on 16 December 2008. This application developed it’s own complexity during the running of the matter and will be expanded upon later in this judgment.
The husband’s evidence
The husband gave evidence that when the children were first born, he was not in ongoing paid employment and that he equally shared the care of the children with the wife while she was on maternity leave. He indicated that once the wife returned to work from her maternity leave, he became the children’s primary carer.
It was his evidence that some months after [Y]’s birth, the wife developed quite severe post-natal depression and was unable to continue in her paid employment. Because of this, he was required to return to work. He was unable to obtain employment in or around [N] where the parties resided and accordingly obtained work firstly in [R] and then in [O] working as a [omitted]. In January 2006, the husband obtained employment in Canberra.
It was his evidence that during the period he was working in [R] and [O], the husband would travel back to [N] on weekends to spend time with the children and the wife.
It was his evidence that it was only upon moving to Canberra that he realised that the parties had separated, although he accepts the wife’s evidence that she had determined the relationship was over in
May 2005 when he was working in [O].
It was the husband’s evidence that in 2006 he was employed as a [omitted] and that most weekends he would drive back to Canberra through [C] and was able to make arrangements with the wife that he would collect the children every second weekend and take them with him back to Canberra where they spent time with him.
It was his evidence that in 2007 after he obtained his current employment as a [omitted] at Canberra and had to work on some weekends, he began to experience difficulties in being able to make arrangements with the wife to spend regular time with the children.
Because of these difficulties, it was the husband’s evidence that he attempted to arrange for mediation between himself and the wife with Relationships Australia and whilst the parties were able to agree to him having some time with the children, no final resolution as to the ongoing arrangements for the children could be reached.
It was his evidence that because of the difficulties with mediation, Relationships Australia referred the parties to the ARCK Program at Marymead, but even with their assistance no solution could be reached as to him being able to spend regular time with the children.
The husband’s evidence was that he did not see the children for some eight months in 2008 and that in these circumstances, he instituted these proceedings. The husband asserts it was only then that he began to spend some time with the children arising from orders made by this court.
It was the husband’s evidence that the wife had not consulted him in relation to the assessments that were being undertaken in relation to [Y] that resulted in the diagnosis that [Y] suffers from Autism Spectrum Disorder. It was his evidence that he was only advised of this assessment through the mediator at Marymead.
The husband’s evidence was that upon being advised of this diagnosis and having been provided with a copy of the Child, Infant and Family Tertiary Service (“CIFTS”) Report prepared by Great Southern Area Health Service dated 11 September 2008 he made his own enquiries of [Y]’s treating specialists and ascertained that [Y] was attending the Monaro Early Intervention Service (“MEIS”) each Monday to participate in a programme called “Early Intervention” that was designed to assist children with autism to adapt to the world around them and to work on their social, speaking and listening skills, and in particular to assist them in attending mainstream schooling.
It was the husband’s evidence that he attended four sessions with [Y] at MEIS to enable him to obtain greater insight into autism and the impact upon [Y] of his autism and how he could better parent [Y].
In relation to the wife’s allegations that he had been physically and emotionally abusive towards the wife and the children during the marriage, the husband conceded there was an incident in 2003 where he and the wife were arguing. It was his evidence that she was punching and hitting him and had him backed into a corner. His evidence was that in attempting to get away from her he pushed her and that she fell and broke her ankle. He otherwise strenuously denied the allegations that he had been controlling, abusive or that he continuously belittled the wife and the children.
In relation to his parenting style, the husband conceded that he had been somewhat traditional in his parenting approach, especially with his three now adult children and initially with [X] and [Y].
He indicated that when [Y] was younger he had smacked him on the bottom with an open hand and had yelled at the children when they had not done what they had been asked to do.
It was his evidence that, particularly with the insights he now has as to [Y]’s behaviour arising from his autism, he has adjusted his parenting style. It was his evidence that he no longer smacks the children, not that he ever smacked [X], and that to discipline them he uses timeouts. In relation to [Y], he indicated that he now realises that [Y]’s behaviours can arise from his autism, that he is not being deliberately naughty and that it is important that he sit down with [Y], obtains an understanding as to why [Y] is responding the way he is and deals with him in a calm and sensitive manner.
It was the husband’s evidence that he and the wife have quite different parenting styles in that he expects good behaviour from the children and runs a structured household. He indicated that the wife is less of a disciplinarian and more inclined to allow the children to do what they want to do.
He spoke positively of the wife in her role as the children’s mother and commented positively on her care for them. However, he was firmly of the view that she did not want the children to have a relationship with him and that she was not supportive in any way of the relationship between himself and the children.
The husband agreed that he and the wife were unable to communicate effectively as between themselves and, more importantly, in relation to the children.
When specifically questioned as to whether the wife’s stated concerns in relation to the children being at risk with him and the impact of [Y]’s autism on [Y]’s capacity to cope with extended time with him were views maliciously held or genuinely held, the husband did not accuse the wife of behaving maliciously, but did not believe that she was able to accept that there was any benefit for the children in them having a relationship with him.
The husband gave evidence of telephone communications between himself and the children, and himself and the wife. It was his evidence that there had been calls from the children where they professed to tell him that they hated him, that they didn’t want to see him, that he was an idiot and that in the background he could hear the wife laughing and at times prompting the children. He also gave evidence of occasions when the wife had rung him on anywhere up to in excess of twenty occasions in the one night, with those calls continuing until
3.00 o’clock in the morning.
There was evidence presented of ongoing email and text message exchanges between the husband and the children, particularly [X], in which she indicated that she did not wish to spend time with him. It was his evidence that he did not believe that communication was necessarily a reflection of [X]’s true feelings, but rather [X] was expressing those views either for or on behalf of the wife or because she felt that’s what her mother wanted her to say.
The husband also queried whether [X] was always the author of these emails because the language and punctuation seemed to be that of an adult. He indicated he wondered whether the wife wrote the emails pretending to be [X].
In relation to the specific allegations raised that [X] and [Y] continuously complained to their mother that he and his partner Ms S called the children “stupid” and other bad names, the husband adamantly denied that either himself or Ms S had ever done so.
It was the husband’s evidence that shortly prior to the matter coming before Federal Magistrate Brewster on 16 December 2008, he and the wife were having a telephone conversation which developed into an argument about the time that he wished to spend with the children. It was his evidence that during that argument the wife said to him words to the effect “Why do you want to spend more time with the children, [Y]’s not even your son”. He said this was the first time the issue of his paternity of [Y] had ever been raised by the wife and he responded to this with words to the effect “If he’s not my son, you must be some kind of slut”.
It was the husband’s evidence that when the matter came before Federal Magistrate Brewster on 16 December 2008, that in light of the wife’s statement to him that he may not be [Y]’s father, the issue of paternity was placed before His Honour.
The matter was originally listed before His Honour on this day with the specific expectation that His Honour would be looking to make orders to extend the time the children were spending with the husband, and in particular [Y], to overnight time. Because the issue of paternity had been raised, His Honour made orders for [X] to spend overnight time with the husband but deemed it not in [Y]’s best interests to introduce overnight time at that stage in the event that the paternity testing should reveal that the husband was not [Y]’s biological father.
Federal Magistrate Brewster adjourned the question of the interim arrangements for the time that the children were to spend with the husband to 27 January 2009, with orders that paternity testing be undertaken in relation to [Y] prior to that date.
It was the husband’s evidence that he attempted to make the necessary appointments for the paternity testing to take place when he realised that the wife had not made any appointments for that testing until a date after the adjourned date in January 2009.
The paternity testing was not completed by 27 January 2009, and in those circumstances the matter was administratively adjourned to come back before Federal Magistrate Brewster on 16 February 2009.
On that date, Federal Magistrate Brewster was advised by Counsel for the wife that on 30 January 2009, [X] had been observed by the wife in Woolworths Supermarket stealing a Push Pop and then doing an attention seeking jig in front of the security cameras. Federal Magistrate Brewster was told by Counsel for the wife that the wife had asked [X] as to the reason for this behaviour and that [X] had told her that she had done this in order to be arrested so that she would not have to go and spend overnight time with her father.
In light of this information, Federal Magistrate Brewster made orders for the children to spend time with the husband on an approximately fortnightly basis, but for such time to not include any overnight time.
It was the husband’s evidence that when he asked [X] if she had stolen anything from Woolworths, she denied having ever done so.
It was the husband’s evidence that, generally speaking, his time with the children since the making of the orders in February 2009 has proceeded relatively satisfactorily, save for some isolated incidents. There was one weekend in March 2009 when his adult daughter and grandchildren were visiting him in Canberra. It was his evidence that he had contacted the wife to see if he could change the times that he was to see the children to enable them to be able to spend time with their sister and her young children. It was the husband’s evidence that the wife failed to respond to his requests and that he made the decision not to travel to [C] on that weekend as it would mean he would not be able to spend the day with his adult daughter and grandchildren. It was his evidence that he messaged the wife to tell her that he would not be coming, though he was unable to confirm whether she would have received that message prior to her leaving to bring the children to [C].
The husband also gave evidence in relation to an occasion in
June 2009, when he arrived to collect the children and they refused to get out of the car. It was his evidence that he tried to get the children out of the car but that they refused to go and [X] told him that she didn’t want to. He conceded that there was an argument between himself and the wife in this regard. It was his evidence that when he asked [X] subsequently why she didn’t want to come, she told him that she wanted to be able to go on a sleepover with a friend.
This matter first came before me on 9 July 2009 and was adjourned part-heard to 7 August 2009. When the matter came before me on
7 August 2009, I was appraised of a difficulty that had arisen in relation to the husband’s time with the children on the previous weekend. The children were participating in a soccer carnival and the husband attended at the carnival to watch the children playing their soccer games. At an appropriate time, the husband approached the wife to enquire as to whether it would be possible for him to take the children directly from soccer for the time he was to spend with them in [C]. It was his evidence that she declined that request and insisted that changeover take place at [C] McDonald’s in the usual way. When the husband collected the children at [C] McDonald’s, they did not have their soccer gear with them. The children advised him that in fact they were playing in a carnival not just one game, and in those circumstances he took them back to the carnival so that they could play further games. However, because they did not have any of their soccer gear, which was still with their mother, the children were unable to play any further games. It was the husband’s evidence that he tracked down the wife and asked her if he could have their gear and that she refused to supply it.
The husband filed affidavits in support of his application sworn by Mr J and by the husband’s partner Ms S. Neither of these witnesses were required for cross-examination.
Briefly, Mr J, who was the supervisor of the husband’s time with [Y] when orders were first made by this court for him to spend time with his father, filed an affidavit in which he deposed:
“3.My wife and I facilitated visits at our house on several occasions. During those visits we experienced no issues of concern with [Mr Roberts], or his partner “[Ms S]”.
4.[Y] did have 2 outbursts whilst at our house. On one occasion he threw a small tantrum when we were playing with a football. [Mr Roberts], myself, my son ([B]), my son’s friend [D], [X] and [Y] were playing. [Y] wasn’t getting easy possession and got upset. [B] and [D] were used to this behaviour and tried to encourage him to rejoin the game. His behaviour improved after about 5 minutes and he rejoined the group.
5.On the other occasion, when [Mr Roberts] dropped [Y] at our house, [Y] had a tantrum when [Mr Roberts] was leaving. [Y] was distressed that [Mr Roberts] was leaving him and did not want [Mr Roberts] to go. This was obviously upsetting for [Mr Roberts]. [Y] was inconsolable, lying on the grass and refusing to respond to me with anything other than the word “No”. [Y] took about 10 minutes to calm down and then played with [B] before his step brother [Z] arrived to pick him up.
6.I’m aware that [Y] has been diagnosed as autistic and both [Mr Roberts] and [Ms Roberts] have had to learn about the condition and how it affects the children. [Y]’s school is also aware of the condition and he appears to be excelling in the small school environment. He is well accepted by the other children and participates in most activities.
7.In early December I tried to work with [Mr Roberts] on developing a plan for [Mr Roberts] to have the children stay at his house overnight. I was planning to take my son and his friend to “Summernats” and we worked out a plan (attached) where I could supervise him with the children. I thought it was a feasible plan that would suit both parents and provide [Y] with sufficient “normality” through having his friends attend that he wouldn’t experience any concern.
8.In developing the plan [Mr Roberts] was very conciliatory. He was prepared to make any allowances I asked him to in order to gain access.
9.When I e-mailed [Ms Roberts] the plan, she responded that I didn’t understand [Y]’s situation and that the plan was not feasible. I then visited her and endeavoured to identify her concerns and see if we could mitigate them. The discussion broke down, without resolution. It was clear to me that [Ms Roberts] was not prepared to allow [Mr Roberts] access.
…
12.In early December [Ms Roberts] commented that she had advised [Mr Roberts] that he might not be [Y]’s father. I was appalled at this, as I doubted the comment was true and felt that it was malicious. [Mr Roberts] subsequently asked me if I had any knowledge of the matter. I doubted that [Ms Roberts] had been unfaithful.”
In Ms S’s affidavit, she deposed:
“12.Since the Court ordered visits began, I have attended a number of these with [Mr Roberts]. We have at times gone to the pool, out for meals, stayed at home and worked in the garden, played in the park and also had a late Christmas with both [X] and [Y] at our residence. During these visits, both [X] and [Y] would play with both [Mr Roberts] and I and chat to us about ordinary things like school, their animals and what they would like (sic to) do on future visits.
…
21.Over the past couple of months, [Ms Roberts] has been making accusations that I have called [Y] ‘Stupid’. At no time have I ever called either [X] or [Y] ‘Stupid’. These accusations have been by both phone and emails. [Ms Roberts] has even had the children on the telephone asking both [Mr Roberts] and I to stop calling the children ‘Stupid’, but you can hear [Ms Roberts] in the background coaching them.
…
27.During our relationship, [Mr Roberts] has never been controlling, abusive, aggressive or lost control of his temper towards me. I have interests, family and work commitments that require me to travel from time to time and at no stage does [Mr Roberts] make me feel like he is controlling what I do. Over the period I have known [Mr Roberts], we have never had an argument. He has been supportive through some very tough times that I have had to deal with from a previous relationship and always shows concern when I am travelling to ensure I have arrived safely.
28.Since living together, [Mr Roberts]’s children from his first marriage have all visited, and we have visited them a couple of times. My observations of their interactions were nothing out of the ordinary and they appear to be a normal family.”
The wife’s proposals
At the commencement of this hearing, the wife’s Counsel handed up on behalf of the wife, a minute of the orders she was seeking setting out her proposals in relation to the arrangements for the children. Those proposals were confirmed by her Counsel at the conclusion of the hearing. They are as follows:
1.Parties have equal shared parental responsibility for the children [X] and [Y].
2.The children live with the Mother, Ms Roberts.
3.The children have contact with the Father, Mr Roberts as follows;
4.Reasonable email, text messaging and telephone contact;
5.Face to face contact in the [C] area for a period of 4 hours, save that should either one or bot (sic) of the children express by their physical actions a desire not to engage in such face to face contact, then such contact shall not occur with the child as may express such desire.
6.If a desire be expressed to the Mother by a child or by both children to engage in contact for a period of less than 4 hours, such lesser time shall be the contact period.
7.The Mother to encourage the children in their contact with the Father.
8.The Father is not to approach, at commencement of contact period, either on foot or in a vehicle, any vehicle or immediate space containing or occupied by the Mother and the child or children.
9.The Father is to wait for the child or children to alight from the vehicle or leave such space and commence walking toward him, prior to the Father approaching.
10.Such approaching by the Father is to occur to a point only as us (sic) necessary to ensure the safety of the child or children.
11.The Father is not to engage the Mother in conversation at contact commencement or cessation unless there exists an urgent need to do so, and such urgency shall not include a delay by the child or children in leaving the vehicle or space for commencement of contact, nor an apparent or actual refusal to leave such vehicle or space.
12.The 4 hour or lesser period is to include the delay (if any) taken by the child or children in leaving the vehicle or space.
13.The Father is not to approach the vehicle or space in or at which the Mother is waiting at end of contact period, save as necessary to ensure the safe return of the children to the vehicle or space.
14.Said 4 hour or lesser periods are to occur on average fortnightly (or as near in frequency as practicable), and the averaging process is to include the birthdays of the children, and of the Father, and Christmas Day, such that said average fortnightly contact periods occur as closely as possible to said relevant dates.
15.Unless otherwise agreed, the contact period commencement and cessation point will be McDonald’s, [C].
16.The Parents to make arrangements for the contact provided by the Orders, by telephone or other electronic means at a reasonable hour and so as to give reasonable notice.
17.Mother to arrange for the children to attend on a counsellor at the Southern Area Health Service.
18.Mother to notify the counsellor that the purpose of such is to endeavour to improve the length of the contact periods.
19.Said counselling to be confidential as between the counsellor and each of the children, and as between the counsellor and each of the Parents.
20.Said counselling is to run for a total period, be comprised of such of the children and Parents and sessions occur at a frequency and length as specified by the counsellor.
21.Both Parents are to refrain from attempting to direct the counsellor concerning these decisions made by the counsellor as to said matters.
22.Both Parents are to refrain from discussing the sessions with either of the children, save that either Parent may inform the children of the purpose of the counselling.
23.Neither Parent is to require of the counsellor that a report (oral or written) be provided to a Parent as to what was said by either child or Parent during such sessions, nor a report as to progress (if any) or recommendations (if any).
24.The Mother and Father to co-operate by attending on the counsellor as may be reasonably requested by the counsellor, save that the Mother shall not be required to attend at the same time as, nor at a time contingent to the time during which the Father is due to attend, but the mother may so attend if she choses (sic) to respond to a request to do so.
25.A copy of these orders to be served on the counsellor by the Mother.
26.Should the counsellor express a wish to see same, a copy of the reasons for decision of this Court shall also be served by the Mother.
27.Should said reasons be given ex tempore, the cost (if any) to the Parents of transcribing said reasons shall be borne equally by them.
28.Attendances by the Father with the child or children at counselling sessions shall not comprise a contact session for purposes of these orders.
29.Should a child or both children express a wish to the Mother (before any such wish may be expressed to the Father) for contact additional to the contact provided for by these Orders, the Mother shall convey such request to the Father, and shall facilitate such request if such request can be accommodated having regard to schooling and other necessary commitments of the child or children, or of the Mother and Father.
30.That each parent be permitted to liaise with any schools attended by the children and receive information/newsletters and academic reports.
31.Attendance by the Father at school based activity does not constitute contact for these Orders.
32.The Father to provide the Mother with reasonable notice (and no later than 24 hours prior to commencement) of his intention to attend school based activity.
33.That each Parent be permitted to liaise with any doctor or other medical related practitioner, and is entitled to be informed by said practitioner of treatment and other details, save that such does not include the counsellor attended by the child pursuant to these Orders.
34.Each Parent to inform the other of any medical or like attendances or appointments that may occur during the time a child is living with or in, or in contact session with a Parent.
35.The Father pay the cost of the DNA paternity testing of [Y], alternatively, the Mother and Father will share the cost 50/50.
36.Parents attend upon Family Consultant in approximately 12 months or at a time later or earlier by agreement of the Parents, so as to participate in a review of these Orders.
The wife’s evidence
It was the wife’s evidence that her marriage to the husband was one characterised by his aggression, anger and controlling behaviour. It was her evidence that as long as she did exactly what the husband wanted and kept him happy, then he didn’t get angry but that if she stood up to him or challenged him in any way, he would become abusive, aggressive and would continually put her down.
It was the wife’s evidence that the parties separated in May 2005, and that the precipitating event was when her two older children from her previous marriage were spending time with their father and indicated that they weren’t prepared to return to live with her because of the abuse that they were receiving at the hands of the husband.
Whilst it was her evidence that she wants the children to have a relationship with their father, she has real concerns as to their safety in his care as she alleges that he has physically assaulted [Y]. More particularly, the wife indicated to the court that [Y] had told her the husband had “punched him in the face” because he was angry with him. Further, the wife alleges that the husband belittles the children by calling them “stupid” and other derogatory names, as does his partner, Ms S.
It was the wife’s evidence that the children tell her that they don’t want to spend time with the husband and in particular overnight time.
Because of [Y]’s autism, the wife does not believe that he would be able to cope with overnight time with his father. It was her evidence that because of [Y]’s autism, he requires regular and set routines, and that any disruption to them causes him to become extremely distressed, sometimes violent and for him to have serious tantrums.
By way of example, when the wife commenced her evidence she advised that she had been contacted by the school principal prior to coming into court as [X] had been extremely distressed when she had arrived at school. Upon enquiring of the principal as to the cause of [X]’s distress, it was explained that in order to be at court that morning, the wife had had to leave home at 7.00 am. The expectation was that the children would get ready for school and that the wife’ s son [Z] would then escort [X] and [Y] to their school before going off to his high school. Because the wife’s absence changed [Y]’s usual “going to school” routine, [Y] had refused to get ready for school and had become extremely resistant to both [Z] and [X]’s efforts to get him ready for school. This had caused [X] considerable distress.
It was the wife’s evidence that to assist [Y] in adjusting to any new situation, it was necessary to engage him in a quite lengthy process so that he was fully understanding of what was to occur for him. She explained that when [Y] is to encounter something new, she takes him through a structured process so that he can manage the situation. This involves using social stories over several days of explaining what is going to happen to him, showing him pictures of what is going to happen and ensuring that he has a full understanding of the new situation he is about to encounter. When this process is properly followed, the wife stated that [Y] is able to adjust to the change. However if the new situation does not unfold as has been explained to [Y] or if there is some other sudden change or alteration to his usual patterns, then [Y] can react violently, throw a tantrum or completely withdraw and refuse to engage or participate in what is going on.
It was apparent from the wife’s evidence that she saw herself as being a victim. In answer to cross-examination as to whether she was making untrue allegations about the husband’s anger and aggression, her response was:
“He’s making me a victim twice.”
Again when challenged as to whether an event had actually occurred, the wife made the observation:
“Now I see why rape victims don’t bother reporting things.”
The wife was cross-examined in relation to her parenting style and the decision making process in her household. It was her evidence as follows:
“If a decision is going to be made or something has to be decided that is going to have an impact on them I just feel it is important that they at least have the chance to feel valued by being heard… I don’t just make a whole heap of decisions and say ‘you do this, you do thus, you do this’, no explanations. We get a chance to talk about things… Where they can, they should have a chance to say if they have an opinion on something rather than just having to sit down and put up with whatever they are told.”
In relation to the orders that were made for DNA testing in relation to [Y], the wife conceded at trial that at no time did she ever doubt that the husband was [Y]’s biological father. It was her evidence that during the telephone conversation with the husband, he called her a slut, something that he had called her regularly during the course of the marriage and she had responded by saying words to the effect “If I am such a slut, then how can [Y] be your son?”
When questioned as to why she had not conceded there was no issue as to paternity prior to her giving evidence at the final hearing, the wife indicated that she had told her legal representatives that paternity was not in issue when giving telephone instructions on 16 December 2008 (it is noted that all parties agree that the wife was not physically present at court on that day).
It was then the wife’s evidence that when she saw the orders, she asked her solicitors as to why there had been an order made for paternity testing when there was no doubt who was [Y]’s father and was told that as the order had been made, it would now be was necessary to comply with the court’s orders.
I note at this time, and in light of this evidence, an issue arose as to whether Counsel for the wife had pursued the issue of paternity in the face of his client’s advice that she was not challenging [Y]’s paternity when those orders were made by Federal Magistrate Brewster on
16 December 2008. The matter was stood down whilst the wife’s Counsel obtained instructions from his client. The wife’s Counsel did so and indicated to the court that his client wished for him to continue to appear in the matter. It was determined that the husband’s application as to the costs arising from that order, and in particular whether the wife or wife’s Counsel should be responsible for the payment of same would be dealt with as a discrete matter separate to the substantive matter before the court.
When this matter came back before me on 7 August 2009, Mr Eley, solicitor on behalf of the wife’s Counsel’s indemnity insurer was given leave to intervene in these proceedings and orders were made in the following terms:
1.Mr Eley have leave to intervene on behalf of the wife’s Counsel’s insurers.
2.The legal representative for the wife’s Counsel’s insurers file a Notice of Address for Service this day.
3.The respondent and her legal representatives file all affidavits upon which they seek to rely on the issue of the applicant’s claim for indemnity costs arising from the orders for paternity testing made by Federal Magistrate Brewster on 16 December 2008 within 14 days of the delivery of the judgment in the substantive matter before the court.
4.The applicant serve the respondent and the intervenor with an itemised bill of costs in relation to the costs claimed by them by 21 August 2009.
And The Court Notes That:
A.The parties shall be advised of the further listing/hearing of the matter by the Chambers of Federal Magistrate Bender upon receipt of all affidavit material.
The wife was cross-examined in relation to the telephone calls made by the children to the husband, in which they indicated to the husband that they did not want to see him, that they wanted him to stop calling them stupid and that they did not like him.
It was the wife’s evidence that on the occasion that [Y] rang his father at 10.57 pm, she had taken the cordless landline phone to him in his bed as he was unable to sleep because he so desperately wanted to tell his father how he felt. She denied that she had influenced what it was that [Y] said or that she had prompted him to make the call.
In relation to the telephone call by [X] where the wife could be heard talking and laughing in the background, it was her evidence that Mr J was visiting and that any conversation or laughter that was heard by the husband arose from their conversation, and that she was not aware of what it was [X] was saying to the husband.
In relation to the multiple telephone calls to the husband continuing until 3.00 am in the morning, it was the wife’s evidence that she was standing up for her children and she was becoming increasingly frustrated as the husband would not engage with her to discuss her allegations as to his mistreatment of the children. She indicated that she felt that she needed to stand up to the husband and defend the children against his abuse.
The wife was shown a number of transcripts of emails and instant message exchanges between [X] and the husband. A document was tendered which set out the transcript of a conversation between the husband and [X] on 3 May 2009. The tendered document included the following exchange:
“[X]:[Y] doesn’t like you and neither do I. And you should listen to the governor. I am going to play saddle club with [Y] bye.
Mr Roberts:who is the governor
Mr Roberts:[X], When we were haveing (sic) all that fun over the christmas holidays and on the trip here to my place you didn’t show me then that you didn’t like me in fact you showed me the opposite, you were happy to come with me and go swimming and [Y] didn’t want to go home every time. The reason that you think that you don’t like me now is just because we haven’t had any time together recently and that is not my fault. I have wanted to have you and [Y] plenty of times but every time I was told that I couldn’t have you, so try spending some time with me and see if you still feel the same way.
[X]: No Dad, the reason is because you hit us.
Mr Roberts:No [X] you have never been hit and [Y] hasn’t had a smack for a very long time, and even then he never got hit but he was made to behave himself and sent to sit on the bed.
[X]:you shouldn’t hit. Mum never hits. The governor is Quentin Bryce.
Mr Roberts:who’s Quinten (sic) Bryce and how am I supposed to to (sic) listen to him if I don’t even know who he is or spoken to him. And I don’t hit
[X]: you are a liar
[X] has signed out.”
The wife was asked whether it was [X] writing the messages or whether it was in fact the wife pretending to be [X], particularly in relation to the correct spelling of the Governor-General’s name, Quentin Bryce, and in light of the maturity of the sentence structure and punctuation utilised.
It was the wife’s evidence that [X] had been the author of the emails, but she conceded that she may have assisted [X] with things like spelling when asked to do so. She denied that she otherwise had any input into the content of the messages.
To my mind, when reading this email it does raise another question. [X] types “I am going to play saddle club with [Y] bye”. Did [X] leave the computer to play saddle club with [Y] and did the wife continue the “exchange” in the guise of [X]?
In relation to the “Woolworths incident”, the wife in her affidavit sworn 6 July 2009 and filed 7 July 2009, deposed as follows:
“29.Woolworths Incident
At approximately 7.15pm on Friday 30 January 2009 I was shopping at Woolworths [C] with my children, [Z], [X] and [Y]. While I was at the checkout I noticed [X] looking up at the TV which shows the images captured by the stores cameras. She was dancing. I did not take much notice as I was busy. I paid for my items and we left the store. When we arrived home we went inside with the groceries but [X] did not come inside. I went outside and called to her. She did not answer me so I went to look for her. She was in the school sandpit eating something. When I asked her what she was doing she ran inside and went into her room. I could see that she was holding (sic something) in her hand. I asked her what it was and she showed me a “Push Pop” lolly. I asked her where she got it from and she shrugged her shoulders. I asked her again. She said that she got it at shopping. I asked her how she got it as I didn’t buy it for her. I asked her is (sic) she stole it and she replied ‘yes’. I asked her why she had taken it and she again shrugged her shoulders. I told her that stealing was wrong and told her that we would be returning to the shop on the weekend and she would have to explain what happened and pay for it. I left her in her room to think about what she had done.
I returned to her room after about five minuted (sic) and asked her to explain to me why stealing was wrong to make sure she understood that she had done the wrong thing. She seemed to understand that she was in trouble and I again asked her why she had taken the lolly. She told me that she wanted to be arrested so that she didn’t have to go to dads.”
It was put to the wife that her affidavit evidence differed from the submissions of Mr Ryan made on her behalf before the court on
16 February 2009.
The transcript of the hearing before Federal Magistrate Brewster on
16 February 2009 sets out Mr Ryan’s submission as to the “Woolworths incident” as follows:
“My client’s instructions are that on the 30th at about 7.15 pm [X] was observed by my client to take items from a display at Woolworths, do an attention seeking jig as it were in front of security cameras and leave the store without paying for them, or something to that effect. The mother enquired as to why, the response from [X] was she wanted to get herself arrested or something to that effect so as to avoid having contact with her father. Thus my client’s confidence in [X]’s confidence contentment with the father’s contact has evaporated.”
In addition, Mr Ryan submitted before Federal Magistrate Brewster that the wife had already been to see the manager of Woolworths and that the husband would be able to view the tapes that confirmed her claim. At the final hearing, her evidence was that she did not go and see the manager of Woolworths until after the court case on
16 February 2009.
The wife could not recall whether she was present at court on
16 February 2009 when her Counsel was making submissions on her behalf or the exact nature of the instructions that had been given to him in relation to the incident.
The wife denied that she had fabricated or exaggerated this incident in an effort to prevent orders being made for [X] and/or [Y] to spend overnight time with their father in circumstances where the results of the paternity testing had been received and there was no issue as to [Y]’s paternity.
The wife was questioned by the independent children’s lawyer as to whether it was possible [X] was telling her that she did not want to spend time with her father because [X] was aware that her mother did not like her father, that her mother didn’t really want her to spend time with her father and that she had said this to please her mother and to avoid having to go, rather than it being a true reflection of her own wishes. The wife responded as follows:
“Given the things that she has witnessed her mother endure, I consider that is a big possibility, yes.”
In relation to the wife’s failure to provide the husband with the children’s soccer gear, she conceded the husband approached her in a polite way but she had a “panic attack” and walked away. Her counsel on her behalf said that if they couldn’t play soccer “well it was one of those unfortunate things in life that happen in the overall scheme of things.” There was no explanation offered as to why the husband was not told the children were playing in a carnival and why she had not arranged for the husband to be able to spend his agreed time with them that weekend at the carnival watching them play and otherwise being given the opportunity to spend time with the children whilst they were engaged in something they love.
Dr H
Dr H is [Y]’s treating paediatrician and was one of the authors of the CIFTS Report dated 11 September 2008, in which [Y]’s diagnosis of Autism Spectrum Disorder was made.
Dr H was called in order to assist the court in gaining some better insight into [Y], his condition and the management of introducing overnight time between [Y] and his father.
Dr H was asked how an assessment of autism is made. Dr H explained:
“For an autistic disorder, there are three areas that you look at. One is social interaction, the second one is communication and the third one is restricted and repetitive patterns of behaviour and interest. So there is three areas: social skills, language and unusually focussed interests and obsessions, and you need to meet a number of those criteria in each of those three areas to have a diagnosis of an autistic disorder.”
Dr H was then asked if it was possible to assign a level of disability for [Y] and how greatly his autism impacts on his life. Dr H indicated that he didn’t think he was able to do that without seeing [Y] again and reviewing him. It was his evidence that he had only seen [Y] for the purposes of the diagnosis, and that he had not seen him since September 2008. He indicated however that he usually reviews patients after twelve months as there can be improvements and/or changes in behaviours that could cause an alternation of diagnosis. He expected to review [Y] in September 2009.
However, Dr H said that generally giving a “level” of autism is something that he does not like to do because how autistic children react is very much dependent on the different environments that they are encountering and whether you are looking at them on “a bad day”. It was his evidence that:
“Children with autism benefit from routine and structure and if they go and see a doctor or a therapist or that sort of thing, they might close down because they’re in a different environment and so it’s very hard to put a score on that sort of thing.”
Dr H was asked if he was able to make any comment in relation to the proposals that were being put by each of the parties in relation to the arrangements for [Y]. It was his evidence that children within the autistic spectrum are such that they find slight changes in routine and structure are more difficult to cope with, and that they are inflexible and more rigid in that way than children without the condition.
Dr H explained that if there is to be any change in the routine of an autistic child, it’s very important that those children are given plenty of forewarning and predictability and that it is done slowly. Dr H said it would be very difficult to say whether [Y] should have this or that amount of time with his father, but that whatever’s done should be done in such a way that [Y] is forewarned and reminded of the change in routine for a long time in advance. Dr H indicated that children with autism are greatly assisted with what those dealing with autism call “visuals” because children with autism benefit greatly from seeing rather than just being told what the change is going to be. Therefore if he was going to visit his father, [Y] should be told he is going to “daddy’s house” and he should then be shown a picture of daddy’s house so that he is able to predict what is going to happen.
It was Dr H’s evidence that ideally whatever the level of contact [Y] has with, to use his words, the “non-residential household”, that [Y]’s reaction to that be monitored by someone independent. This person would be able to check [Y]’s progress, how well he is coping and to be able to feed back to the parents whether the arrangements are working well or whether [Y] is finding it incredibly difficult and harmful to him. They could assist the parents to ensure the best possible outcome for [Y].
Dr H conceded that he was not aware that there was a professional psychologist or support service in or around [N]/[C] that would be able to provide that service for [Y] and this family.
Dr H made it clear that he was not saying that children with autism should only stay in one house and never have overnight time with other people, rather that any change from what is their usual routines needed to be done incrementally and with appropriate monitoring of the child’s response to that change.
When Dr H was specifically asked about the various possible ways forward for [Y] and in particular would it be better to have the initial overnight times between the husband and [Y] in [C] rather than in the husband’s home in Canberra as it would be closer to the wife’s home, whether there should be changeover at school rather than at McDonald’s which currently takes place, whether overnight time should not be introduced until he had had an opportunity to review [Y] and whether he had any other suggestions to lessen any potential negative impact upon [Y] of introducing overnight time with his father, it was Dr H’s evidence that autistic children and their responses are idiosyncratic. It may well be that [Y] would be more upset by being in a motel than being in his father’s home, that [Y] may enjoy travelling with his father in the car over a long distance or he might find that stressful, he may enjoy having his father in the classroom or because that’s not the routine which he is used to at school that this too would cause him distress. Accordingly, Dr H just repeated that whatever orders were made, they must be done incrementally and in such a way that [Y] is given every opportunity to have explained to him both verbally and by way of visual assistance, what the change is so that he has adequate time to adjust and come to terms with the changes that are being introduced.
Wendy Anne Styles
Ms Styles is a registered psychologist who prepared a Family Report in this matter pursuant to section 62G(2) of the Family Law Act 1975 (“the Act”). She produced a written report dated 20 April 2009 as well as providing oral evidence at the final hearing of this matter.
In paragraph 8 of her Report, Ms Styles made the following recommendations:
“In any five-week period Mr Roberts has one week in which he has both Saturday and Sunday off work (week 1 in the attached table). I recommend that the children spend from Saturday morning until Sunday evening with their father on these weeks. In his five-week cycle Mr Roberts also has a week in which he has Friday and Saturday off work (week 4 in the attached table). I recommend that the children spend from Friday afternoon to Saturday afternoon with their father on these weeks, and that
Mr Roberts be free to collect the children from school on the Friday.
I further recommend that holiday contact be introduced gradually after a period of about three months. Holiday contact might begin with a period of four nights in the first instance, progressing seven nights twice a year until [Y] is about eight years of age, then increasing to two weeks twice a year, if
Mr Roberts is able to obtain leave from work.”
In cross-examination, the parties’ respective proposals were put to
Ms Styles. It was her evidence that she was of the view that the husband’s proposal was in accordance with her recommendations and that she thought that orders in terms similar to those he was seeking would be appropriate.
In relation to the wife’s concerns as to the children being at risk either physically or psychologically when in the husband’s care, it was her evidence that:
“I could see nothing which would suggest that there would be a physical or psychological risk to the children from them staying overnight with their dad.”
Ms Styles was asked to further explore the concerns raised by the wife as to why the wife did not believe it was in the children’s best interests for them to be spending any longer, and in particular overnight time, with the husband.
In relation to the allegation that the children were subject to physical and emotional abuse at the hands of the husband, it was Ms Styles’ evidence that she did not believe that the children would be at risk in this regard.
In paragraph 7.2 of her Report, Ms Styles stated:
“I could not rule out that Mr Roberts had been strict and
heavy-handed with the children, and [Y] in particular, in the past. It was possible that they felt intimidated by their dad’s stronger discipline, compared to what was probably a more laissez-faire attitude to parenting on their mother’s part. Mr Roberts assured me that although he used to smack [Y], he had not done so for “at least two years”. He had gone to some effort to understand [Y]’s behavioural issues and adjust his approach accordingly.”
Ms Styles was cross-examined in relation to the allegation that [Y] had told his mother that when dad was angry with him he had punched him in the face. Ms Styles’ evidence was that she would be very puzzled if that is what the children were saying as it was certainly not her impression that there was any hitting or punching being exercised by Mr Roberts. Ms Styles indicated that:
“I was inclined to believe him when he said that it had been a couple of years, he didn’t deny having smacked [Y], but he said it was at least a couple of years ago and that he no longer did that.”
In paragraph 6.3 of the Family Report, there is a sentence completion exercise [X] had completed as part of the report preparation process. [X]’s responses were:
“I wish that my dad didn’t hit [Y].
…
If I could have three wishes, they’d be: Daddy didn’t hit [Y]…”
[X] also told Ms Styles that her dad:
“…yells at [Y]. He hurts my feelings when he yells at [Y].”
It was Ms Styles’ evidence that she felt that the aforedetailed statements were not something that a child would normally say.
When expanding on this observation, it was Ms Styles’ evidence that:
“Children tend to give you small details, not conclusions. They tend to want to tell you about what happened yesterday, or last week or one time or something… She just didn’t ever go into detail about anything and she repeated that statement sort of a bit mantra-like, you know, ‘He yells at [Y] and hurts my feelings’.”
Ms Styles was questioned as to whether she accepted Mr Roberts’ evidence that he had changed his parenting style and that he no longer used physical discipline or raised his voice with the children, particularly in light of the insights he had gained as to [Y]’s behaviour resulting from his autism. It was Ms Styles’ evidence that she did believe that Mr Roberts had developed an understanding that such a parenting style was not acceptable and that it was her impression that Mr Roberts has changed his approach and changed his attitude.
In relation to the evidence of the wife that the children were being belittled and ridiculed by their father and Ms S, Ms Styles’ evidence was that the children made no complaints to her that their father or Ms S abused or belittled them or had at any time called them stupid, and that she saw nothing in her interviews with the children that indicated that this was occurring.
In relation to the concern that both children were expressing a reluctance to spend time with their father, it was Ms Styles’ evidence that generally speaking [Y] spoke positively about his time with his father and was able to describe fun things that he did with him including playing with cars, going to the park et cetera. In relation to [X], Ms Styles was most concerned as to the level in which she is caught up in the parental dispute and her alignment with her mother’s position.
As part of her assessment, Ms Styles had [X] complete a Revised Children’s Manifest Anxiety Scale (RCMAS). In paragraph 6.5 of her Report, Ms Styles indicates that [X]’s total anxiety score of 48 gave no cause for concern, but that her score on one of the sub-scales was typical of a child who was anxious to be accepted. Because of her alignment with her mother, coupled with her need to please and be accepted by her mother, it was Ms Styles’ hypothesis that because [X] is well aware of her mother’s negative feelings about Mr Roberts, she would tell her mother that she did not want to see her father in order to please her mother and ensure her mother’s acceptance of her.
Ms Styles was asked whether she was suggesting that the wife was actively trying to influence [X]’s decision. It was Ms Styles’ evidence that the wife must have either deliberately or inadvertently made her position clear in terms of her feelings about the husband and that [X] had picked up that her mother would be happier if she spent less time with her father and had responded accordingly.
When asked whether she had a view as to whether the wife was deliberately trying to influence [X], Ms Styles indicated that she did not necessarily believe that the wife was doing so.
Ms Styles did however have some concerns as to whether the wife was actively exposing [X] to her negative views about the husband and in particular had told her that her father tells lies and that her father does not love her. [X] made comments to Ms Styles that:
“I sometimes wish Daddy loved me. He says he does but I can tell he doesn’t by the way he treats me.”
It was Ms Styles’ evidence that she had wondered if these were concepts that had come from the wife rather than from [X].
Ms Styles was asked whether she believed that the wife’s legitimately holds the concerns she says she does. It was Ms Styles’ evidence as follows:
“It is difficult to say. I found Ms Roberts to be I think ‘a fragile person’ and I think it is possible that she is over-protective and overly worried and perhaps genuinely concerned, but you know, I think it is also possible that her concerns are not legitimate.”
The wife’s concern in relation to the impact on [Y] of the introduction of overnight time with the husband because of his autism was raised with Ms Styles. She conceded that she had no expertise in the area of autism, but did make the observation that it was her understanding that children with autism require routine and that it might perhaps be in [Y]’s best interests that he have the opportunity to develop the routine of spending regular overnight time with his father as soon as possible so that he would be able to enjoy that time with his father.
Ms Styles was asked a number of questions in relation to the emails and instant messaging between [X] and her father, and whether she had any views as to whether the language and punctuation used were as could be expected of a child of six or seven years of age. Whilst
Ms Styles expressed some reservations as to whether a child of [X]’s age would or could have produced those communications, she conceded that this was not an area of her expertise and I have placed no weight on her evidence in relation to this issue.
Ms Styles was asked as to her views in relation to the wife’s proposal that the children’s time with the husband be increased upon the “verifiable wishes” of the children (the term “verifiable wishes” was put by the wife’s counsel as being the measure by which the children’s time with the husband be determined).
It was her evidence as follows:
“The difficulty I have with it is the children verifying their wish, or their intention to spend time with their dad. Because I’m not sure that there will ever be a time when they can – when it can be verified while ever there is a question about their mother’s influence on them.”
Further, Ms Styles’ evidence was:
“I think that (sic the children’s “verifiable wishes”) places undue pressure on children and puts them in a situation where they could well be subject to influence by either parent to say what that parent wants them to say. I don’t think children at this age should – or at any age really – be placed in that position where it’s up to – where the whole thing hinges on when they say they want to do this or that. I think that would be absolutely not acceptable or in the best interests of the children.”
In relation to the way forward or the sort of orders that the court would make, it was Ms Styles’ evidence as follows:
“If the court were to make orders for instance that for a period of weeks or whatever the children should have daytime contact and after x weeks they should have overnight until the morning, and then after x more weeks overnight until the afternoon, that sort of thing, an order of the court that makes this a gradual thing, then I wouldn’t think that was a bad thing. My opinion, as I’ve said, is that I couldn’t see any reason why they shouldn’t have overnight now. If the court were to accept that, because of [Y]’s autism, that it would be too destructive then I would definitely recommend that the court lay down how long the daytime contact should last before the overnight contact starts.”
Best interests of the child
Part VII of the Act deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
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).
Section 60ca of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
In this case, both parents are seeking orders that the court make an order for equal shared parental responsibility. It is common ground between the parties that they have almost no capacity to communicate and it was apparent from their evidence that there is little likelihood of them improving their capacity to communicate to the level where they could effectively co-parent into the future. However, it is in my view that it is very important for both [X] and [Y] that both their parents have involvement in the decision-making in relation to their future, their education and development. This is particularly so for [Y], where both parents will need to be actively involved and understanding of [Y]’s needs to ensure that his potential is maximised. I am therefore satisfied that such an order for equal shared parental responsibility should be made in this matter.
Where the parents have equal joint parental responsibility for a child, s.65daa of the Act requires the court to consider the child spending equal time, or a substantial and significant time, with each parent. It provides as follows:
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Neither party is seeking that this court make orders that the children spend equal time with each of the parents. Given that the wife has been the children’s primary carer since separation, given the parties’ complete inability to communicate and that they live a considerable distance apart, it is clear that such an order would not be in the best interests of the children.
Sections 65daa (2) and (3) of the Act provide as follows:
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The husband is seeking orders that the children spend time with him approximately three weekends out of eight, in accordance with his rostered availability because of his employment, as well as four weeks of holiday time. The wife is seeking orders that the husband spend up to four hours with the children, presumably on a weekend when he is not working. Whichever orders are made, because of the practical and geographical difficulties, it is apparent that this is not a matter in which an order can be made for the husband to have significant and substantial time with the children as defined in the legislation.
When determining what arrangements should be put in place for children, the Act clearly sets out that the orders the court makes must be in the best interests of the children. When determining what is in the children’s best interests, the court will consider matters set out in section 60cc(2) and (3) of the Act.
Each of the matters contained in subsections (2) and (3) must be considered and assessed in the context of each of the party’s behaviours and proposals and a decision made as to which of the party’s proposals or such other proposal as the court may determine best meets the children’s best interests.
Section 60cc(2) of the Act sets out the primary considerations which are as follows:
Section 60cc 2(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
Section 60cc 2(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The wife alleges that the children have been and are exposed to both physical and psychological harm when with the husband, in that he has hit [Y] and that he continually subjects the children to ridicule and abuse by calling them stupid and otherwise denigrating them.
In support of this allegation, the wife gives evidence that the children continuously make complaints to her of these behaviours and that they have raised these allegations with the husband both in telephone calls and by way of email and instant message communication.
The husband concedes that when [Y] was younger, he did spank him, but that this has not taken place for some years and in particular since the diagnosis that [Y] suffers from autism and the insights that he has developed as a result of that diagnosis.
Ms Styles, in her Report and by way of her oral evidence, formed the view that she had real doubts as to the veracity of the allegations of abuse by the children. In support of this, she challenged the language used by [X] in relation to the complaints as not being that usually used by children when making complaints of this sort and noticed [X]’s comments to almost be “mantra-like”.
Ms Styles’ strong evidence was that she did not believe that the children were at risk of either physical or psychological harm in the care of the husband. She was also strongly of the view that the husband had developed a real understanding that his earlier parenting style was not appropriate and that he did have the necessary insight and skills to adjust his parenting style to ensure that the children were not exposed to any form of corporal punishment or excessive anger or yelling.
Ms Styles also noted that she could not be satisfied as to the genuineness of the wife’s concerns that the children would be at risk in the care of the husband.
I am satisfied that the children are not at risk of being subjected to psychological or physical when they are in the husband’s care and that any orders made by this court for the arrangements for the children will not be impacted by this consideration.
What follows logically from this finding is the necessity of considering section 60cc(2)(a), being the benefit of the child having a meaningful relationship with both of their parents.
The meaning of “meaningful relationship” was considered in the decision of McCue & Costa [2009] FamCAFC 92. As their Honours noted in their decision:
“The Act contains no definition of meaningful relationship.”
Having reviewed the decisions where the meaning of the phrase ‘meaningful relationship’ in the context of Section 60cc(2)(a) had been considered, their Honours held at paragraph 118 as follows:
118.It appears to us that there are three possible interpretations of s 60CC(2)(a):
(a)one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
(b)a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (“the presumption approach”); and
(c)the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).
Their Honours then held at paragraph 119:
“We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in Section 60cc(2)(a) is ‘the prospective approach’, that is once the court is satisfied that it is in the child’s best interest to have a meaningful relationship with both their parents, then orders be framed in such a way that the children are given the best possible opportunity to have that meaningful relationship with both their parents.”
Whilst Ms Styles was satisfied that [Y] enjoyed his time with his father and that [X] did have an emotional attachment to her father, there can be little doubt that at this time their relationship with the husband can not be described as meaningful. Justice Brown in Mazorski & Albright (2007) 37 Fam LR 518 considered the definition of ‘meaningful’ and having considered the definitions as set out in recognised dictionaries, held at paragraph 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.”
At this point in time, it is difficult to find that the relationship that [X] and [Y] currently have with the husband conforms with this definition.
Since 2007, the time that [X] and [Y] have been able to spend with their father has been haphazard and limited. Throughout the entirety of this time, the husband has been actively trying to put in place arrangements that would enable him to spend regular, consistent and predictable time with his children, but that this has been resisted by the wife. The husband pursued mediation, first through Relationships Australia and then by way of involvement with the ARCK program at Marymead. However, whenever any plans or arrangements were put in place for his time with the children to progress and increase, the wife would disengage from the process.
The husband was left with no other recourse but to institute proceedings in the court and again for every step forward in relation to the children spending time with the husband, there would be two steps backwards which ensured that there was no progression or increase in time between the children and their father.
I am satisfied that at no time did the wife doubt [Y]’s paternity and was fully aware that there was no necessity for there to be any orders made for parenting testing. Whilst the question as to the circumstances of the manner in which her instructions were dealt with before the court on
16 December 2008 remains to be determined by me subsequent to the delivery of this judgment, there can be no doubt that upon being appraised of these orders, the wife did nothing to advise this court or the husband’s solicitors that she did not challenge [Y]’s paternity. It was only at the final hearing of this matter that she conceded to the court that at no time did she ever believe that the husband was not [Y]’s biological father.I am satisfied that the wife did not advise the court that there was no doubt as to [Y]’s paternity before the final hearing because she was fully cognisant that if paternity was in doubt then there was a very real likelihood that the court would not have made orders in
December 2008 to progress [Y]’s time with his father to overnight. Federal Magistrate Brewster made it very clear that he was going to make such an order, but for the issue as to paternity.In February 2009, when the matter again came before Federal Magistrate Brewster, the “Woolworths incident” was raised before the court. The inconsistencies of the wife’s evidence in relation to that event, and in particular the descriptions of that incident as given to Federal Magistrate Brewster on that day and then subsequently contained in the evidence placed before this court has to raise real concerns as to the veracity of that incident.
I am satisfied that the wife has intentionally manipulated the court proceedings to circumvent any increase in the husband’s time with the children, which in turn has hindered their development of a meaningful relationship with him.
However, I am satisfied that it is in the children’s best interests that they be given the opportunity to have that ‘meaningful relationship’ with the husband and that when considering the party’s proposals and in accordance with the Full Court’s decision in McCue & Costa [2009] FamCAFC 92, I must consider those proposals on the basis of how they would ensure [Y] and [X] could develop such a relationship.
When measured against this criterion, it is apparent that such a relationship could not develop if the wife’s proposals were to be put in place, but could be developed if proposals of the type sought by the husband and recommended by Ms Styles were followed by this court.
Section 60cc(3) of the Act sets out the additional considerations to be taken into account and I will consider each of those in turn where relevant.
Section 60cc 3(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
It is the wife’s evidence that the children have continuously expressed a wish not to spend time with the husband and that if there is to be time, that it not be overnight.
I have set out in some detail many of the circumstances in which such views have been expressed and in particular those occasions where those views have been expressed by the children to the husband by way of telephone or email and instant text communication.
I have a real concern that on many of those occasions, the wife has been the true instigator of those messages and that she has actively encouraged and facilitated the children in relaying those messages.
The evidence of Ms Styles in relation to [X]’s personality, in that she is a young child who has a real need to please those around her and has strongly identified with her mother and her mother’s views is compelling.
Whilst I do not make a finding that the wife is deliberately influencing [X] to adopt her negative attitudes about the husband, I am satisfied that [X] is fully cognisant that the wife does not like the husband and that she does not want [X] to spend time with him. I am therefore satisfied that when [X] says she does not want to spend time with the husband, or that she does not like the husband, those statements do not reflect [X]’s true feelings.
When the matter commenced before me, I sought from the independent children’s lawyer, an indication as to whether he had any preliminary views in relation to the way this matter should proceed and in particular as to what orders he thought would be in the best interests of the children.
The independent children’s lawyer indicated he did have a preliminary view and that such view in part was informed by discussions that he had had with [X] and [Y] on the Monday prior to the commencement of the final hearing. Mr Stagg, the independent children’s lawyer, indicated that it was clear that [X] held the view that if she sees her father more than on minimal occasions only, she is doing something which is going to upset her mother and that is the basis upon which she expresses reluctance when asked.
In relation to [Y], Mr Stagg indicated that he engaged quite readily with him and that he was able to speak positively about the fun that he had when he saw his father and of the things that he liked doing with him.
Mr Stagg indicated that when he made a suggestion to both of the children that the court may make orders about the time that they were to spend with their father, including overnight time, both children seemed to be relieved by the idea that the court would become the decision-makers and that they would be fine with orders in those terms.
Mr Stagg formed the view that having the responsibility of deciding what should be the arrangements in relation to the time that the children spend with their father taken away from them came as a relief to the children.
These observations by Mr Stagg were very much in accordance with the observations and finding of the report writer, Ms Styles.
[X] and [Y] are both very young children. [X] is only seven and [Y] is only five and has been diagnosed with autism. Accordingly, the amount of weight which should be placed on their expressed wishes and views is not great. However, the feedback provided by Mr Stagg from his discussions with the children and the assessments of Ms Styles are most illuminating, particularly in relation to the necessity of removing from these children the burden of feeling they have to decide when and in what circumstances they see their father.
Section 60cc 3(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
There is no doubt that the wife is the children’s primary carer and that they have a close, loving and trusting relationship with her.
I have already set out in detail the current status of the children’s relationship with the husband.
The husband is in a committed relationship with Ms S. They have been living together for some years and live in a jointly owned property in Canberra.
The husband deposes that Ms S has often been with him when he has spent time with the children, particularly over the last six months and he is of the view that the children interact happily and warmly with her. Whilst [X] has made complaints that “[Ms S] yells at [Y]” and that “She hurts my feelings”, these allegations are denied by Ms S.
Ms Styles, who interviewed Ms S for the preparation of the Family Report, made the following observations in relation to her:
“She presented as very genuine and very fond of the children, very supportive of Mr Roberts and I think very sensible. She was a sensitive, genuine person.”
Ms Styles observed the children with the husband and Ms S as part of the Family Report process. This observation took place over a period of half an hour to an hour at a local park. Unfortunately, Ms Styles made no notes about her observations of that interaction and did not include her observations of their interactions in her report. When specifically questioned on this as part of her evidence, Ms Styles’ recollection was that the interaction was “unremarkable” in that it had proceeded happily and well.
The wife’s son [Z] is part of the household in which the children reside and the children appear to have a good relationship with him. There was no evidence led as to what involvement the wife’s eldest son has with the children on any kind of regular basis.
The husband has three adult children and now grandchildren from his first marriage. It would appear that at this time the children have not had any opportunity to develop any kind of meaningful relationship with their older half-siblings and extended family on the husband’s side.
Section 60cc 3(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
In considering this factor, the court must also take into account sub-s.60CC(4) and (4A) which provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
It is quite apparent that the wife has not willingly facilitated the children’s relationship with the husband. In cross-examination, it was the wife’s evidence that she could see no benefit for the children in having a relationship with the husband at this time.
Whilst the wife said that she supported the children having a relationship with the husband, her actions and behaviours belie such a claim.
In her evidence, Ms Styles expressed grave concerns about how motivated the wife was to encourage a relationship between the husband and the children.
The many instances of the wife’s lack of willingness to encourage that relationship have been set out in detail previously in this judgment.
A stand out concern is the failure of the wife to involve the husband in relation to making decisions about major long-term issues in relation to the children. This is best exemplified by her failure to inform the husband that [Y] was undergoing tests to ascertain whether he was autistic and that the husband was only appraised of the existence and outcome of those tests through a mediator subsequent to that process being completed. The impact of this was many fold. Not only did the assessment take place without any input from the husband, it delayed the husband’s ability to fully understand the impact of [Y]’s autism on [Y]’s behaviours.
Section 60cc 3(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The husband is not seeking to challenge that the children remain in the primary care of the wife, but is rather seeking to put in place orders whereby the children can spend sensible and appropriate time with him.
There is no doubt that [Y]’s autism does influence how those arrangements should be put in place and requires that those arrangements be put in place in such a way that he is able to understand and take on board any changes to his routine and accept such changes without undue distress.
It is clear however from the evidence of Dr H that [Y] is able to accommodate change, as long as it is done sensitively, gradually and with the appropriate interventions including visual prompts and sensitive explanation to enable him to adjust to such changes. That [Y] can adjust to change cannot be challenged. For example, [Y] has successfully been integrated into his school environment, is playing soccer and otherwise interacts on a daily basis with friends and family within his community.
Section 60cc 3(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The husband lives approximately one and a half hours drive from the residence of the wife and the children.
There will be some travel involved in enabling the children to spend time with the husband, however the distance and time involved is not so great as to prevent the children from spending regular and sensible time with the husband.
Again, because of [Y]’s autism, sensible and appropriate preparation will be needed to enable [Y] to make this journey comfortably. It is noted that there has been quite a number of occasions when [Y] has happily made this journey to visit his father in Canberra.
[X] made some complaint about having to travel so far to spend time with the husband and commented that it was “boring”. Ms Styles quite sensibly noted that this can be easily overcome by simply making sure that [X] has something to do in the car when travelling, whether it be books, colouring, recorded stories or providing her with a portable DVD player.
Section 60cc 3(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
I am satisfied that both parents have the capacity to provide for the children’s physical, intellectual and emotional needs.
It would be of assistance to the husband if he were to continue to engage with [Y]’s treating paediatrician, speech therapist, school and integration aides to ensure that he is fully informed in relation to [Y], his development and how the husband can ensure that he implements the agreed strategies and interventions when [Y] is with him to ensure that [Y]’s routines are maintained. It is also important the husband continues to develop his insights into [Y] and his understanding of how autism impacts on children and their behaviours. To this end, he should continue to read the relevant material that is available on autism.
There has to be some real concern as to the wife’s inability to shield the children from her strongly held negative views of the husband and her lack of insight as to the impact that this has and will continue to have upon the children into the future.
There is no doubt that the wife sees herself as the victim of the husband and his abusive behaviours during their relationship and that because of that, she is unable to acknowledge that the children would have any benefit from a relationship with him. These may be issues that the wife needs to explore through individual counselling.
Section 60cc 3(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
Not relevant.
Section 60cc 3(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
Not relevant.
Section 60cc 3(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The wife has had the primary care of the children since May 2005.
Both children are proceeding very well at school and are reported as being delightful young children.
The wife was very much attuned to [Y]’s developmental delays and took all necessary positive steps to have those explored by the appropriate professionals, with the result that his autism was diagnosed at an early stage which allowed the appropriate interventions to start as soon as possible. It is to the wife’s credit that a diagnosis of [Y]’s autism was able to be made at an early stage and that the relevant treatment and interventions were able to be put in place following that diagnosis. It is my understanding that early intervention for children with autism maximises their positive response to those interventions.
Unfortunately, the wife has not been able to support the children having a meaningful relationship with the husband for the reasons set out in great detail previously in this judgment.
The husband has been doing everything within his power to put in place arrangements whereby he can participate fully in his children’s lives and that he has been unable to do so fully to date is not through lack of effort on his part.
Section 60cc 3(j) any family violence involving the child or a member of the child’s family
The wife’s allegations in relation to the husband’s physical and emotional abuse of her during the course of the relationship have been canvassed at length in this judgment.
Similarly, the wife’s allegations in relation to the husband exposing the children to family violence has also been discussed at length previously in this judgment.
Suffice it to say, I am not satisfied, particularly in relation to the children, that those allegations are proven.
Section 60cc 3(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
Not relevant.
Section 60cc 3(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The proposal for the children’s arrangements as submitted on behalf of the wife has no other foreseeable outcome than this matter requiring further court intervention in a relatively short period of time. The wife’s proposals of themselves seek a review of any arrangements within the next twelve months.
Orders that would place the responsibility for the time that the children spend with their father in the children’s hands are completely unworkable (not to mention inappropriate), particularly given the children’s young ages.
On the other hand, the husband’s proposal is such that, if implemented with real sensitivity in relation to [Y], it has the prospect of putting in place arrangements that will work well into the future and minimise the necessity for this matter ever to return to court.
Section 60cc 3(m) any other fact or circumstance that the court thinks is relevant
The parties were in agreement that [X] is a caring and loving sister to [Y] and that she is very protective of him. She accommodates the daily routines necessary to assist [Y] in negotiating his world. It was common ground that [X] is a very important component of assisting [Y] in keeping happy and engaged in his life.
In those circumstances, it was strongly argued by the wife that any time that [Y] spends with the husband should coincide with time that [X] was spending with the husband. I agree with the wife, though suspect her submission related to why neither child should spend overnight time with the husband.
The independent children’s lawyer, in his closing submissions, indicated that he supported orders roughly in line with those sort by the husband, at least in regard to [X].
The independent children’s lawyer however referred to the evidence that was given by Dr H, particularly in relation to the ideal outcome for [Y] being that there be an independent professional able to monitor the impact on [Y] of him increasing time with his father so that such independent professional could provide feedback to the parents as to how the arrangements were going for [Y] and whether things needed to be slowed down or what other strategies could be put in place to assist [Y] transitioning into those new arrangements.
The independent children’s lawyer conceded however that here is no such independent professional available to [Y] in or around [N] where he resides. It was his view that this was not a sufficient reason for [Y] not to be spending increased time with his father, including overnight time.
The independent children’s lawyer was of the view that whilst he had concerns that historically the husband’s parenting style had been somewhat “heavy-handed”, he accepted Ms Style’s assessments that the husband had developed greater insight in relation to this issue and that he did not present as an unacceptable risk to the children in terms of them being at risk of physical or emotional harm in his care.
The independent children’s lawyer did have concerns about the wife’s willingness to encourage a meaningful relationship between the children and the husband. By way of example, he was strongly of the view that the wife deliberately and wilfully misled the court in relation to the necessity for the DNA testing of [Y] in order to delay any increase of time between [X], [Y] and their father.
Further, the independent children’s lawyer opined that it was open to the court to make a finding that the wife had deliberately misled the court in relation to the “Woolworths incident” to once again delay any increase in time that the children might spend with their father.
The independent children’s lawyer was of the view that it was open to the court to make a finding that the wife had actively been engaged in encouraging the children to say that they didn’t want to have time with their father, that they hate him, that he hits them and that these views did not accurately reflect the children’s reality of their father.
The independent children’s lawyer was strongly of the view that it was not in the children’s best interests that any orders be made that place the responsibility on them for determining what time they should spend with their father.
In those circumstances, the independent children’s lawyer indicated that he supported orders being made in the terms as suggested by the husband, albeit that the court may consider a more graduated introduction of overnight time for [Y].
Conclusion
I am satisfied that it is in [X] and [Y]’s best interests that orders be put in place that will enable them to have a meaningful relationship with their father into the future.
I am also satisfied that the wife does not believe that there is any benefit in the children having a relationship with the husband and that the children, particularly [X], are fully cognisant of their mother’s views.
I am also satisfied that the mother has misled the court by not challenging the necessity for paternity testing in relation to [Y] and by exaggerating circumstances in relation to the alleged “Woolworths incident” for the direct purpose of delaying any orders that the court was potentially going to make to increase the children’s time with the husband.
I am also satisfied that the wife has interfered with the children’s communications with their father to the extent that she assisted [X] in some of her written communication with the husband, verbally prompted the children to say hateful and untruthful things to the husband by way of telephone calls and has made abusive and inappropriate calls to the husband at all hours of the day and night in the presence and hearing of the children.
The wife’s proposal as to what orders should be made for the arrangements for the children are not and cannot be in their best interests. It is highly inappropriate that any orders be made which place the responsibility for determining what time a child should spend with one or other of their parents in the hands of that child. That the wife does not have the insight or understanding to recognise the inappropriateness of such a proposal is a matter of real concern.
I am satisfied that orders should be put in place which allow a graduated increase in the time that the children spend with the husband so that they will be spending consistent overnight, weekend and holiday time with their father on an ongoing basis into the future.
Such arrangements must be tailored and put in place in such a way that they accommodate [Y]’s autism. It will require both of the parties to assist [Y] through this process by “preparing” the way for him, including both giving him a consistent positive message of how he will enjoy being with his father and using the necessary visual and other prompts to ensure that the changes to [Y]’s routine are understood by and are acceptable to [Y].
It has to be hoped that the wife will ensure that she cooperates with the husband to ensure that this takes place. It is imperative for the children that she understands the importance of the children being allowed to enjoy their time with the husband and that she does not, either consciously or subconsciously, undermine these orders.
To ensure that these orders are explained to [X] and [Y] in a child-friendly, child-focussed and objective way, it will be ordered that they be explained to the children by the independent children’s lawyer.
I certify that the preceding two-hundred and thirty-four (234) paragraphs are a true copy of the reasons for judgment of Bender FM
Associate: Sarah Hession
Date: 31 August 2009
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