S and K

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S & K

[2001] FMCAfam 131

FAMILY LAW – Residence – Contact – Best interests of child – Conduct of parents – Relationship with each parent – Superannuation – Application to vacate orders Family Law Act 1975 s60B, s65E, 68F(2)

B and B: Family Law Reform Act 1995 (1997) FLC 92-755

Applicant:

C W S

Respondent:

B L K

File No:

ZP 948 of 2000

Delivered on:

28 August 2001

Delivered at:

Parramatta

Hearing Dates:

30 & 31 January 2001
1 & 15 February 2001

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Ms Druitt

Solicitors for the Applicant:

Ms S of Lee S Solicitors
DX 21402 Raymond Terrace

Counsel for the Children:

Mr Stewart

Solicitors for the Children:

Ms Nicholls, Legal Aid Commission of NSW DX 8293 Parramatta

Solicitor for the Respondent

Mr Jurd of James Pappas & Associates
DX 28382 Parramatta

ORDERS

The amended application filed by the applicant on 21 September 2000 is dismissed.
Orders 2, 3, 4, 5, 6, 7, 8, 9 and 10 made by the Family Court of Australia at Parramatta on 6 October 1994 are discharged.
The child A W S born 24 November 1990 is to reside with the mother.
The father shall have contact with the said child as follows:
(a)Each alternate weekend from 5.00 pm on the Friday to 5.00 pm on the Sunday, except during school holidays;
(b)For the first half of all gazetted NSW school holidays commencing at 10.00 am on the day after school term concludes and concluding at 5.00 pm on the middle Sunday of each school holiday;
(c)From 2.30 pm on Christmas Day to 5.00 pm on Boxing Day
26 December 2001 and each alternate year thereafter;
(d)From 4.00 pm on Christmas Eve to 2.30 pm on Christmas Day
25 December 2002 and each alternate year thereafter;
(e)From 10.00 am to 5.00 pm on Father’s Day each year if that day does not fall on what would otherwise be a weekend when the father would normally exercise contact with the said child;
(f)For a period of not less than two hours on the child’s birthday if that day falls on a weekday;
(g)By telephone on one occasion each week; and
(h)At such other times as the parties shall agree between themselves.
The father shall not be entitled to exercise contact with the said child on Mother’s Day each year.
For the purpose of exercising contact as set out in Order 4 hereof, the father shall collect the said child from the mother at the commencement of each contact period and return the child to the mother at the conclusion of each contact period at McDonald’s Family Restaurant, P H Road, T.
The mother is to notify the father of all specialist medical appointments and hospital admissions relating to the said child at least 14 days prior to such appointment or admission, or in the event of admission to hospital under emergency conditions, no later than 24 hours after such admission, such notification to include the name and location of the hospital to which the child has been admitted.
The father is declared entitled to attend each specialist medical appointment relating to the said child, provided that the father shall pay to the specialist medical practitioner one half of the consultation fee for the said appointment.
The father is declared entitled to attend at any hospital to which the said child is admitted for one half of the parental visiting time allowed by the hospital on each day the child remains an in-patient.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

ZP 948 of 2001

C W S

Applicant

And

B L K

Respondent

REASONS FOR JUDGMENT

Application

This is an application by the father to vacate orders made by the Family Court of Australia at Parramatta on 6 October 1994. The father seeks orders that the child of the relationship, A W S, who was born on 24 November 1990, should reside with him. The mother opposes this proposal. She also seeks an order that a part of the proceeds of the husband’s superannuation should be paid to her.
The orders, which the father seeks to vacate, were made by consent on 6 October 1994. They provided, inter alia, that the mother should have custody (to use the term then in force) of the child A and that the father should have access to the child on alternate weekends, at Christmas and Easter, and for periods of two weeks during the Christmas/January school holidays and the June/July school holidays. The father commenced these current proceedings with an application to vary the contact (to use the current term) to cover the first half of all school holiday periods and to include times when the child would otherwise be placed in respite care accommodation. This application was filed on 13 July 2000.
The father then went on to file an amended application, seeking a residency order, on 21 September 2000. The mother then filed her response, seeking the order against the father’s superannuation, on

4 October 2000. On 16 October 2000, an order was made restraining the father from receiving any part of his superannuation entitlement exceeding the sum of $10,000.00. On 19 October 2000, the parties agreed that an Order 30A Expert’s Report should be obtained.
The matter was heard over a three-day period commencing on

30 January 2000. Submissions were taken on 15 February 2001.

Background

The father was born on 25 April 1947, which makes him 54 years of age. The mother is 38 years of age, her date of birth being 8 August 1963. The mother had a son, B, by an earlier relationship, on 8 May 1983. He is now 18 years of age.
The parties commenced to live together in March 1985. They were married on 22 March 1986. There was one child of this relationship, the subject child A, who was born on 24 November 1990.
The parties separated on 27 July 1991, and were divorced on 8 March 1993. The decree became absolute on 9 April 1993. There were proceedings in the Family Court at Parramatta, which led to orders being made by consent on 6 October 1994.
The consent orders provided that the mother was to have custody of the subject child. The father was to have access to the child B and to the subject child A on alternate weekends, at Christmas and Easter, and during school holidays. There were, in addition, orders relating to the child’s hospitalisation and medical specialist visits, and certain property orders. It is noteworthy that the venue for contact changeover was set at the F Police Station.
The father was made redundant from his employment as a stevedore on 4 September 1997. He commenced receiving benefits from the Department of Social Security on 14 October 1997.
In recent years, the father has been living at T, in the N area. The mother has been living in the Sydney suburb of G. The child has been living with her, and having regular contact with his father.

Issues

The issues between the parties relate generally to the question of the child’s residence and contact arrangements. Relevant matters include the child’s current medical condition and his medical treatment and the mother’s attitude towards the father and her willingness to advise him of current issues relating to the child’s condition and treatment arrangements.
It is also significant for the court to examine each parent’s capacity to manage the child’s various medical conditions and the practicality of each party’s proposals for the child’s care. The father’s proposal would involve the child changing residence, changing school, and, quite possibly, changing doctors. The mother proposes a continuation of the existing arrangements, which now include the child attending a special school, called K. The proceedings commenced on the basis that the residence and contact issues would be heard first, with the financial matter awaiting the determination of those other issues. The constraints of time available for the hearing dictated this course.

Evidence

Evidence for the father was given by the father himself, by his father, Mr S W S, and by his brother, Mr L B S. The mother gave evidence on her own behalf. Also called for the mother were her mother, E J K, Ms K C, a Social worker from the K School, and Dr B R. Counsel for the Child’s Representative called Ms K T, a caseworker at L House, and Dr C Q, the Order 30A expert. Dr Q gave her evidence by telephone.
The applicant father deposed in his affidavit evidence that he had met the respondent mother in 1981 and formed a relationship with her. The child was not a well child from babyhood, and continues to suffer from illnesses and behavioural problems. It was the father’s evidence that he had experienced difficulty in having contact with his son from the time that he and the mother separated in July 1991, which was the reason he commenced proceedings in the Family Court.
The father says that difficulties continued. He described an incident where the mother advised him on 5 November 1999 that the child was unwell, so he agreed not to exercise contact with him that weekend. On
9 November he received a message from the mother that the child was in hospital, but was unable to find out the name of the hospital. He alleges that the mother would not make that information available to him, and eventually he had to make inquiries through the mother’s solicitor.
The father further alleges that he found out in February 2000 that the child was again in hospital, by means of a telephone call from the wife’s solicitor, Mr Jurd. It transpired that the child had been in hospital for two weeks and was about to be discharged. The father further alleges that during February and March 2000 he was not permitted to have contact with the child, due to the child’s medical condition.
The father says that he was able to have contact during the April school holidays and again in May. He says, however, that when collecting the child from the mother he was subjected to verbal abuse and hostility from her. As a result, he decided to commence proceedings to vary the existing contact arrangements.
The father had holiday contact with the child in the September school holidays and during the Christmas/January school holidays.
The father resides with his own father, aged 78 years, and his elder brother, aged 56. None of the three men work in paid employment. The father covered the joint financial arrangements made by the three men. In his affidavit, the father describes in detail the arrangements he makes for the child during contact, including meals, home routine, social outings, games and entertainment. The father also referred to his use of a “time out” policy for the child when he has temper tantrums.
In his affidavit evidence, the father set out his proposals for the child if he were to come into his care. He said that he would be financially responsible for the child’s support, knowing that he could rely on his father and his brother for assistance if need be. He proposes to become involved with the child’s schooling and would take the responsibility for the child’s supervision. He says that he is able to restrain the child physically if he were to become violent, although he says that such an occasion has not yet occurred.
The father proposes that the mother should have alternate weekend contact, and contact for half of each school holiday period. He suggests that the McDonald’s Family Restaurant at T would be a good place for contact hand-over.
The father referred to the fact that he had in the past taken the child to a medical practitioner in the local area, and this doctor is familiar with the child’s disabilities. He describes the proximity of local hospitals and expresses a willingness to travel to and from Sydney so that the child could maintain a relationship with his present medical advisers.
The father also set out his financial position in his affidavit. He was made redundant from his job on the wharves on 14 September 1997. He used his redundancy money to pay off a number of debts, including $4,000.00 owing to the Child Support Agency.
The father accessed his superannuation to pay off his mortgage. He says he currently receives $177.00 from Centrelink, but his expenses “far exceed” that amount. He has applied to the Local Court at Raymond Terrace for a stay of Child Support payments pending the determination of an objection.
The father was cross-examined extensively both by Mr Jurd for the mother and by Mr Stewart of counsel for the Child’s Representative. He gave some oral evidence in chief, in reply to matters that had arisen in the mother’s affidavit. He said that, whilst the Family Court orders in 1994 provided that he should have contact with the older child B, B no longer goes on contact with him. He explained this by saying “No, B just one day turned around and said I don’t want to see you no more and he wouldn’t tell me why and I never pursued it.”
He said that he had not been aware that the child was to start at K that week, believing that he would continue at H School for Specific Purposes. He had in fact rung K that day, to be informed that the child was expected to start there that evening.
In reply to the affidavit of the maternal grandmother, the father said that he had given up drinking. His words were “Well, I haven’t had a drink for years. I informed (the respondent) that a long, long time ago, many years ago, that I had given up drinking.”
In cross-examination by Mr Jurd, for the mother, he said that his father does not live at his residence all of the time. He goes to B two or three times a year for three to five weeks at a time. His father still drinks beer, but is not as a heavy a drinker as he used to be. He now drinks about three or four stubbies of beer a day. On the other hand, his brother is a non-drinker.
The father said that the child would have his own bedroom, because he was converting the formal dining room into a fourth bedroom. He has not completed that project because he does not know whether the child will be residing there full-time or not. At the present time, the child sleeps in a queen-size waterbed in the main bedroom on contact, and the father sleeps in a single bed. If the child came to live with him permanently, the father proposes that they would convert the dining room into a fourth bedroom, which his elder brother would occupy. This would then leave a bedroom free for the child to have his own room.
The father said that he had given up drinking alcohol in 1994 or 1995, as a result of statements made to the Family Court by the mother that he had been heavily intoxicated. He cited his desire for more contact with the child as the reason for his decision to cease drinking, not for any medical reason. He said that he had previously given up smoking but had resumed the practice.
Mr Jurd asked the father why he had waited so long to seek to vary the orders made in 1994. He replied:
“We had joint guardianship and the order said we should have had … I should have been informed of all specialists and I had the right to attend every second specialist appointment. (The child) was operated on the first time without my knowledge, on his feet. The second time he was operated on I was at the S Private Hospital. (The mother) dropped him off and I was at the hospital and I picked him up and brought him home and had him for the weekend … The reason these were put in, he was going, she was putting him into respite and I wasn’t told and when it was my access I was told that I couldn’t have him. He was put away and I didn’t know where he was”
(Transcript, 30 January 2001, page 32).
The father went on to say that for a long time he did not even know what school the child attended. He said that he did not know that the Department of Community was involved until his solicitor found out for him. By comparison, the father admitted that he had taken proceedings of his own accord to seek a stay of the Child Support payments.
The father said that he had made some inquiries about the availability of suitable schools in the N area. He had not visited any of them, but he knew that there were some nearby.
The father was cross-examined about his finances after he received his redundancy payout. He said that he had paid off the mortgage on the house and had bought himself another motor car. He admitted that he had spent another $30,000.00 but could not remember what he had done with the money. He said:
“Yes I can remember that … I’d never had that sort of money, that amount of money and I just went crazy, and I admit, I wasted that money…I just wasted it”.
(Transcript page 39).
The father said that he was paying the sum of $5.00 per week towards Child Support arrears because that was the amount he was required to pay. At the same time, he admitted that he was drawing lump sums of money out of his superannuation for various purposes. Some of this money went on legal fees, $4500.00 and then another $1500.00.
Other amounts of money have been paid out for renovations to the house. At the time of hearing, the father admitted that he had only $32,000.00 of his superannuation left.
Mr Stewart, for the Child’s Representative, tendered the Order 30A Report, which became Exhibit 1, and the Family Report, prepared for the earlier proceedings by Erika Pidcock. That document became Exhibit 2.
In cross-examination by Mr Stewart, the father said that the child was epileptic and asthmatic. He also has a disability that prevents him from talking, and he has a behaviour disorder. Further, the child has had problems with his feet, so that he could not walk until he was four years old. He requires a nasal spray to stop nosebleeds. The child has also suffered from croup. The father did say that the mother never gave him any information about the child when he picked him up for contact.
The father was asked about his employment. He has been required by Centrelink to attend a number of job interviews each fortnight, but not when the child is in his care. He would not be able to obtain employment if the child was in his care on a full-time basis.
The father said that he had made some inquiries from L House and from his solicitor as to what assistance would be available to him in the N area if the child was placed into his care. He was referred to a statement in the Order 30a Expert’s Report, Exhibit 1, by Dr C Q, who said that he had done little to research what resources might be available in N for a child with special needs. He agreed that the child had a number of needs, including medical needs and the need for speech therapy. He had not made any inquiry as to what the availability of speech therapists was. He also spoke of the need to place the child in a special school, or a school with a special class, but had made no specific inquiries.
The Applicant’s father, Mr S W S, was not available until the following day, but I propose to deal with all of the evidence called for the applicant before proceeding to examine the respondent’s case. Mr S senior, the paternal grandfather, deposed in an affidavit that he is a retired storeman who receives a pension of $455.00 per fortnight from Centrelink. He lives with his son, the applicant. He has been present when contact has taken place, but has nothing to do with the child’s day to day care or management. He is 78 years of age and in good health.
The grandfather deposed to providing financial assistance to his son by shopping for groceries and meat. Occasionally, he will pay an electricity bill. Each fortnight, he buys himself a carton of 24 stubbies of beer, which lasts him for the fortnight. He also goes to the local Bowling Club once a fortnight for the raffles. He will stay for a couple of hours and consume about 4 schooners of beer. Sometimes, he is lucky enough to win a tray of meat or a ham. Twice a year he goes to stay at his daughter’s place at B. He stays away for about two or three weeks.
The grandfather was cross-examined by Mr Jurd about the fact that his son had struggled financially in recent years. He said that he pays his son board of $150.00 a fortnight and does some of the shopping. His other son does a lot of the shopping and the applicant does a bit.

The grandfather said that he was in good health, but has to take medication for gout.
He also said that he only drank the one carton of stubbies a fortnight. He confirmed that the applicant no longer drinks alcohol and has not done so for a few years. His other son, who also lives with them, does not drink, either.
In answer to Mr Stewart of counsel, the grandfather agreed that the child could be “a handful”, but he was mostly pretty well behaved. He said that the child wants to be with applicant all the time. Whilst it had been years since he had had a young person living in the house, he took a positive view of the child coming to live with the family permanently. He said he liked having children around. He did not feel that it would cost much more to have one extra mouth to feed, “to cook for four is not much dearer” than cooking for three.
The father’s elder brother, Mr L B S, was the final witness to give evidence in the father’s case. He gave evidence on 1 February 2001. Mr L S had completed an affidavit the day before.
In his affidavit, Mr L S deposed to the fact that he was unemployed and received a Newstart allowance of $356.00 per fortnight. He has been present when the father has had contact with the child but he, himself, plays no part in the child’s day to day care and management. He confirmed that the child is very attached to the father.
The father’s brother confirmed in his affidavit that he assisted his brother financially when necessary, and affirmed his intention to continue to do so. He also deposed to the fact that the child became distressed on occasions when he had to return to his mother at the conclusion of a contact period.
The father’s brother was cross-examined by Mr Jurd, solicitor for the mother. He said that he had been living with his brother at T for about five years, and his father had been there about three years. He had not worked since he had moved to T.
The father’s brother said that the child had had a couple of “outbursts” during the Christmas holiday period, when he had stayed with the father for about five and a half weeks. The father’s brother tended to make light of these outbursts, saying that the child had only gone on yelling for a couple of minutes before settling down. This could be achieved by talking to him. He had not needed to be physically restrained.
The brother confirmed that he had seen the father communicating with the child by means of picture cards, although he had not used them himself.
In cross-examination by Mr Stewart of counsel, the brother admitted that it would be different if the child lived with them full-time, compared to staying for holiday contact visits, but did not see any particular difficulties arising. Whilst he had had no children of his own, he had been “around young kids” for most of his life.
The respondent mother gave evidence on her own behalf. Her evidence was taken on 31 January 2001. The mother had sworn a lengthy affidavit on 26 January, to which she annexed a copy of the consent orders made by the Family Court on 6 October 1994, along with a variety of other documents of various ages. They included a School Counsellor’s Report from H Special School, dated 20 August 1998, an Assessment Summary from L House (an institution run by the Department of Community Services), dated 27 January 1994, a further Assessment Summary dated 11 August 1994, a medical report about the mother herself from Dr K A-S dated 9 March 1994, an Apprehended Violence Order made by the Parramatta Local Court on 6 July 1992, and some other documents concerned more with the mother’s financial claim against the father.
The mother’s affidavit dealt with virtually the entire history of her relationship with the father, commencing with their initial brief relationship in 1981. The mother complained that during their period of cohabitation, both before and after marriage, the father gave her very little money for housekeeping. She said that he would spend a lot of his money on alcohol, and was often intoxicated. She also deposed to the fact that he did not want her elder son B living with them, and the child spent six months living with her mother and later spent twelve months at a boarding school.
The mother also complained that the father would make light of the child’s physical illness, characterising attacks of croup as “only a little cold”. Again, she said, he would not accept that the child had any intellectual disability, although there is clear evidence that the child has been assessed as moderately intellectually disabled.
The mother says in her affidavit that she became depressed when the child was still a baby. She said that she and her husband separated when the child was a few months old. The separation was marked by threats and harassment by the father, leading to her application for an Apprehended Violence Order. There was a subsequent incident where the father was convicted of a breach of that order and received a prison sentence, which was reduced on appeal to the District Court.
The mother confirmed that contact between the father and both of her sons took place for about two years after the Family Court made the consent orders on 6 October 1994. After that, the elder child, B, decided that he no longer wished to have contact with the father. The mother says that B now resides with her mother, as he has some difficulty coping with the subject child, who can be disruptive and requires constant supervision.
The mother deposed in her affidavit that the subject child had had a number of physical and intellectual difficulties since birth. Apart from his intellectual disability, he has suffered from epilepsy, clubfeet, croup and respiratory tract infections. He has been hospitalised on over twenty occasions.
As the child is moderately intellectually disabled, he has attended the H School for Specific Purposes since 1995. The mother says that the child clings to her and requires constant supervision.
The mother also says that, due to the child’s recurrent health problems, he takes a number of medications regularly and attends various doctors, including child psychiatrists and paediatricians. He has attended one paediatrician, Dr R, since he was twelve months old. Dr R gave evidence as part of the mother’s case.
The mother makes it clear in her affidavit that the child’s behaviour had worsened to the extent that by the latter part of 1999 he was having trouble at school and had to stop attending Cubs. By about September of that year, the mother says that she sought advice about the child’s behaviour. She also sought some respite care for him.
The mother says that she discussed the child’s behavioural problems with the Principal of H School and with the paediatrician, Dr R. With their encouragement, she arranged for the child to be enrolled at a special school called K, which is run by Anglicare. The Department of Social Security will meet his fees. K is a boarding school.
The balance of the mother’s affidavit referred to issues concerning the father’s superannuation.
Mr Jurd led some brief oral evidence in chief, without objection, from the mother, to cover the recent development in the life of the subject child, his commencement at K Boarding School. She said that she had started making inquiries about the possibility of A’s being enrolled at K in August 2000. She had in fact called some five different schools. She discussed the matter with the Principal of H, his current school, and with Dr R, the paediatrician.
The mother said that she consulted the social worker at K, who arranged for the child to spend a day at the school on 20 December, for familiarisation. She did not tell Dr Q, the Order 30A expert, at that stage, although she subsequently contacted her. The plan was for the child to spend one term at K, after which a review would take place.
The mother was cross-examined by Ms Druitt of counsel. It is regrettable that the mother chose to adopt a petulant, flippant and at times aggressive tone during her cross-examination.
She said that she did not tell Dr Q about her proposal to enrol the child in K when the Order 30A Report was being prepared. She told Dr Q the child went to H. Her reason for not mentioning the K proposal was:
“I was not sure he was going to attend boarding school. Why say something if you do not know it’s going to happen”.
(Transcript, 31.1.01, page 19).
The mother admitted that the child had trouble adjusting to strangers, so she could not say whether he would settle at K. From about September 1999 she had experienced trouble coping with the child’s rages. There had been times when he had received an intramuscular injection of Largactil to calm him. She did not ask the father to assist her with the child’s rages.
She admitted that she did not discuss the K proposal with the father, but said that if she knew that she was going to “100 per cent” put the child into K, she would have told the father. She said that she would only have told him after the decision had been made because she “how she would react”. He would have rejected her decision.
The mother said that the child had been receiving speech therapy before going to K. L House had arranged this therapy. She had discussed the K proposal with the staff at L House. They had disapproved of it.
The mother made it clear that the child’s outbursts were extremely difficult for her to cope with. When this occurred, she found that she could not get household jobs done, so the house did not get cleaned and tidied. She would become irritable. The extent of his behaviour was that she claimed he ‘wrecked the place’ during his outbursts, about once a month. She had arranged respite care for him for a week at a time, at the J W Respite Unit.
The mother told Ms Druitt that for the last half of the year 2000 the child was having rages about twice a month; the incidents became more violent. His destructive behaviour included cutting the blinds into six pieces horizontally with scissors, smashing up the lounge, throwing his bookshelf out the window, and opening the windows and slashing the screens. The mother discussed the behaviour problem with the staff at L House. When asked by Ms Druitt:
“Do you recall that they suggested that there were other ways that you had to deal with his anger rather than sedation?”
she replied:
“Yes, that’s why I sought boarding school. He needed discipline. He needed to control his own anger”.
(Transcript, page 26).
She had sent her elder child to boarding school for behaviour modification. This action had worked as far as that child was concerned.
The mother did not agree with Ms Druitt’s suggestion that the staff at L House had been of “enormous support” to her. She said that the Principal of the child’s school had been part of her support network; she had consulted her regularly. She had also consulted the child’s teacher and teacher’s aide on a regular basis.
Later, the mother said that staff members of L House had visited her at home to discuss concerns about the child’s behaviour.
The mother said that she had sent the child to his father for the last two weeks of January because “the boy wanted to go to his dad’s”. She said that the child became upset because he did not think she would let him go, so she rang the father and let the child speak directly to him. The child was crying on the phone because he did not think she was going to let him go. He was getting impatient. She admitted that it was her fault that she did not communicate the information to him - “ He was too upset and there’s only a certain amount of information that can get through when he’s upset”.
The mother was also cross-examined by Mr Stewart of counsel. She said that if the court decided that it was in the child’s interests for him to live with his father, she would want the same sort of contact as the father presently has. If the child were to be accepted at K, she would telephone him regularly each afternoon, and see him on weekends and school holidays.
The mother said that the purpose of the child’s staying at K was not for the purpose of his education, because he would not be accepted until he reached the age of 12, but for behavioural issues. The mother believed that K would make the child a more independent person and help to better himself, “because he’s got to be out there in society eventually anyway”.
When asked about the father’s ability to care for the child, the mother gave him a mixed review. She said she had no doubt about his ability to care for the child physically, in areas like feeding and clothing him, but described him as having a lack of understanding of the child’s developmental steps and the use of support systems. The mother agreed that the child has a good relationship with the father.
In re-examination, the mother said that the child was not currently having any speech therapy. The reason for this was that she was still waiting for a student to be assigned to him by the University, at C College.
Dr B R gave evidence for the mother. He is a consultant paediatrician who has treated the child for the past 9 years. In a report annexed to his affidavit, he described the child as having developed idiopathic epilepsy as an infant and having been found to be mildly intellectually delayed. The epilepsy has been brought under control with a medication called Epilim, and the child has had no fits since 1996.
Dr R described how the child had developed frequent outbursts of violence and rage, one of which he had recently witnessed. He said that, in case the outbursts of rage were and adverse effect of the Epilim, he decided to wean the child onto Rivotril, which is another anti-epileptic drug that has more sedative and calming effects.
The doctor supported the trial of the placement at K. He also believed that alternate weekend contact with the father and sharing of school holidays was a beneficial arrangement for the child. He described the mother as “a conscientious and caring mother”, who had always found to be “trying her best” for the child.
In cross-examination by Ms Druitt, Dr R said that he had never met the child’s father. He knew that there were contact arrangements, but he did not know how the child behaved with his father, or the child’s degree of attachment to him. He would be happy to discuss the child’s progress with the father if the father made an appointment to see him, and he would be prepared to continue treating the child if he were to go and live with his father.
Dr R said that the child had had a respite placement at the J W Respite Unit at H, but that he believed that K would be a much better choice. The reason for that was that the staff were trained to look after children with some intellectual handicap accompanied by behaviour problems. The feedback that would be received from the staff of K over the next term or two would assist in the child’s management. In cross-examination by Mr Stewart, Dr R confirmed that K would provide a useful reporting mechanism over a trial period.
Dr R told Mr Stewart that he had never had any concern for the child from a physical point of view. He appeared to be very well looked after, and if there was any medical problem he had always been taken to his family doctor, or he (Dr R) had been contacted.
The maternal grandmother gave evidence for the mother. Her evidence was largely historical, rather than current, although she deposed in her affidavit that she has often attended at her daughter’s residence to assist with the child’s care and his medical appointments. She confirmed the mother’s accounts of the child’s behavioural outbursts.
In cross-examination, the grandmother said that the mother was taking anti-depressant medication. She had seen the child throw frequent small tantrums, but he had not had a really bad one for quite a while. She supported her daughter’s decision to place the child in K, believing it to be a place where he can receive support, intense speech therapy, and assistance with his behaviour.
The mother also called Ms K C to give evidence in her case. Ms C is a Social Worker with the K School and Residential Service. She deposed in her affidavit that she had had discussions with the mother and had advised her that the school and residence would provide a highly structured program of managing the child after his usual attendance at the H Special School.
Ms C said in her affidavit that the child had been offered respite at K for one term. K has access to behaviour therapists, communication consultants and physiotherapists. The initial placement for the child would be one term, subject to review. The program envisaged would be that he would continue to attend school at H and board at K during the week, returning home at weekends.
In cross-examination, Ms C denied that respite at K might be a negative experience for a child, although she agreed that some children came to K and exhibited problems after returning home. At that stage, the child had only been with K for two days, but the plan was that they would co-operate with H and C College in a plan to improve the child’s communication skills. Ms C told Mr Stewart that the fact that the child was under the age of 12 would not place a limit on the availability of resources at K to assist the child.
Counsel for the Child’s Representative called Ms K T to give evidence. Ms T is a community nurse, a caseworker at L House. She was the caseworker for the mother from about March 1998 to about 20 October 2000. Her role was to organise respite care and making sure that the services that would best suit the child were in place. She confirmed that the child had been reported as presenting with difficult behaviour. The program team visited the father’s home to see if the programs that were being implemented could be implemented at the father’s home during weekend contact.
Ms T denied that she had ever told the mother that the child should live with the father. She told Ms Druitt in cross-examination that she had never discussed the question of the child living anywhere else. She did express the opinion that the father seemed calm with the child and appeared to be very interested in him. The father’s house seemed to be very well ordered and there were areas set out for the child.
In cross-examination by Mr Jurd, for the mother, Ms T said that she had not been aware that there had been a breakdown of communication between the mother and L House.
Dr C Q, a consultant psychiatrist, had prepared an Order 30A Report. For her report, Dr Q interviewed the mother, the child (with some difficulty), the father and the maternal grandmother.
Dr Q reported that the mother told her the child seemed to enjoy the contact with his father. She said she was happy for the child to spend time with his father, and that alternate weekend contact and school holiday contact would be appropriate. The mother had described the previous seven years as a struggle. Dr Q formed the view the mother seemed to be very depressed. The mother told her that the court proceedings brought by the father were causing her difficulties. Dr Q described the mother as cuddling the child lovingly throughout the first interview. The mother seemed very responsive to the child, holding him in a loving and affectionate manner. The child appeared to be very comfortable in his mother’s embrace.
The maternal grandmother described the mother as being “really down” because of all the court action. The father, she said, had dragged the mother through court many times.
Dr Q said in her report that the child appeared very happy to be with his father. The father appeared to be very responsive to him. The father told Dr Q that he was unhappy about the situation, because he was not given information about the child’s medical treatment, and the child would be put into respite care and the father did not know where he was.
The father said to Dr Q that he had had the child with him for periods of about five or six weeks without any problems. He felt sure that there would be suitable schools for the child in the area, although he appeared not to have made any specific inquiries. He had done courses so that he could look after the child’s medical needs, and had certificates showing that he could handle the nebuliser for the child. The father pressed the point that he felt that the child would be in a better local environment, with more room and less traffic.

In her report, Dr Q concluded that the child had strong bonds of attachment to both parents, and was as strongly attached to his father as to his mother. She commented that there was a “very solid support network” where the child is currently living, and compared this to the lack of information about the resources in the N area. She said that the father had done little to research this aspect.
Dr Q expressed some reservations about the child going to live in a home where the other three residents were three single men. She said that there was some question about the level of drinking in the house, which, she commented, would not seem to be a desirable situation for a child like the subject child.
In summary, Dr Q expressed the view that, whilst the child’s relationship with the father was very warm and loving, there did not seem to be “sufficient indication to justify a change of residency” (Report, page 18). She went to recommend that regular contact with the father should continue, with the only limiting factors being the distance between the two households and her query about the level of drinking in the father’s home.
Dr Q was called by Mr Stewart oral evidence, which she did by telephone. She said that she had not been told about the proposal to send the child to boarding school at the time she conducted her interviews for the Order 30A Report, although the mother did telephone her later to advise her of that proposal. When asked about her opinion of this proposal, Dr Q said:
“Well, yes, I’ve given it a great deal of consideration really but I’m (the word ‘not’ appears to have been omitted from the transcript) (not) sure that it actually changes my mind but I would certainly take into consideration the matter”.
(Transcript 1.2.02, Page 60).
Mr Stewart asked her:
“If his honour took the view that the proposal of (the mother)was for (the child) to stay at boarding school into the foreseeable future and possibly until he was 18, would that cause you to change any view you had expressed about the appropriateness of (the father)?
Dr Q answered:
“Well, yes. I could consider the fact that seeing as the father is very willing to have the child with him full time that that would have to be considered an option preferable to boarding school.”
Dr Q qualified that answer by comparing the type of boarding school one to another, and expressing the opinion that a residential school particularly equipped to deal with children who have special needs would be a suitable option, but a boys school that did not offer such facilities would not be as suitable as the full time care of a parent. She said that she was not familiar with the school concerned.
In cross-examination by Mr Jurd, for the mother, Dr Q stated that the father seemed to have taken rather a naive approach to problem of looking after the child, that he had not done the basic ‘homework’ to see what services were able to meet the child’s needs. She felt that he appeared not to understand various areas of the child’s problems, and showed an inability to grasp the full complexities of the situation.

Submissions

Mr Stewart of counsel, for the Child Representative, submitted that the father’s proposal is of more benefit to the child than that of the mother. He submits that the child should reside with the father.
Mr Stewart submitted that the expressed wishes of the child should carry little weight, because of the child’s age and various disabilities. From Dr Q’s Report, it appears that the child has a close and loving relationship with both parents, and he has strong bonds to both of them. Moreover, he appears to be as warmly attached to the father as he is to the mother.
Mr Stewart was of the view that the parents’ competing proposals were, in effect, the father and his extended family on the one hand, and the K School on the other. Each would involve a change in the living arrangements that the child had had to date. It was conceded that Dr Q had said that a boarding school might be of benefit to the child if that school was able to cope with his needs and offer him real assistance. For the time being, at least, the child would continue to attend the H Special School during the day and would board at K. This would mean that K would be providing respite care for the benefit of the mother.
Mr Stewart conceded that there was benefit to the child in remaining at H Special School. He has attended there for some years and the evidence points to an “appropriate and capable” education. Against this, there would be, on the evidence of Ms T, similar facilities available to the child in the N area.
It was submitted that, prima facie, it would be of more benefit for the child to live with a parent than in a respite establishment. The father’s proposal is that the child would live with him, and that the mother would have the same degree of contact with the child as is presently being enjoyed by the father. The child would not, in any case, be able to take advantage of all the facilities at K until he reached the age of 12 years.
It was a point of concern that the mother had not offered basic information to the father about the child’s medical care and treatment. The father has given evidence about the need to involve solicitors in finding out information about what he described as “fairly basic guardianship/residence issues”.
Not surprisingly, Ms Druitt of counsel, for the father, supported the submissions of Counsel for the Child Representative. She submitted that it was inappropriate to criticise the father for using his solicitor to obtain information about the child when that information was clearly not forthcoming from the mother. He sees himself as a simple working class man, she submitted, not someone who would normally be on a par with social workers and disability service providers. He is the sort of man who clearly thought of his role as taking the child to the service providers, and they would indicate what would be best for his child.
The child is better behaved when he is living with his father, she submits, because the father shares his accommodation with two adult males. Thus, he does not appear to be alone and unsupported, as far as the child’s view is concerned, which is the case with the mother.
It was further submitted that the child is physically maturing, he is ten years of age. He is a big child and his behaviour has become very difficult for the mother. By comparison, it is suggested, the father would be better able to cope.
Ms Druitt submitted that residence with the father would not, contrary to Mr Jurd’s submission, lead to an erosion of the child’s relationship with his maternal grandmother and half-brother (who was described in the transcript as a “step-sibling” but is clearly the child’s half brother, as they share a common parent), at least, no more than the K proposal would do. The child would be a weekly boarder, described somewhat emotively by Ms Druitt as “The poor child doesn’t have a home” (Transcript, 15 February 2001, page 22).
Ms Druitt submitted that the evidence of Dr R, which was supportive of the mother, should be viewed in the context of the fact that the doctor had no knowledge of the father’s proposals, or even of the father.
It was also submitted that Dr Q’s fears of the amount of alcohol being consumed in the father’s household were not based on an accurate understanding of the situation. The father, formerly a heavy drinker, no longer drinks alcohol at all. The father’s brother seldom drinks any alcohol. It is only the paternal grandfather who consumes alcohol on a regular basis.
These, then, are the two submissions in favour of the proposition that the child should live with the father. I have quoted them out of order (as Ms Druitt’s submission was the last of the three) for convenience.
Mr Jurd, for the mother, submitted that the child should remain living with her. He conceded that his client’s oral evidence did not particularly help her own position. The documentary evidence provides greater support for her. He referred the court to the Family Report prepared by Court Counsellor Erika Pidcock for the earlier proceedings, in 1994, when it was clear even then that the mother was making use of sign language to communicate with the child.
Mr Jurd referred the court to the evidence of Dr R who took the view that the mother had been successful in her care of the child. He suggested that the court would find that the mother’s care of the child to date had been good.
It was also submitted that there had been some softening of the mother’s position in relation to the child’s relationship with the father. She has, over time, become more supportive of this relationship. Against this, the father had demonstrated a history of “undermining the mother” right from the very beginning. Mr Jurd submitted that the father had shown insensitivity to the emotional needs of other people and a preoccupation with his own needs. He is not able to put his needs behind the needs of the child. Mr Jurd described him as a lonely man who sought that the child would fill a gap in his life. Against this, the mother had shown that she was capable of putting the child’s need before her own by paying to maintain private health cover, even though the father had been less than generous in giving the child any of the benefit of his redundancy payout.
Mr Jurd criticised the father for the vagueness of his proposals for the care of the child, should he reside full-time with the father. He was not, apparently, going to call his father or his brother to give evidence in his case until prompted to do so by the Child’s Representative. Dr Q interviewed neither of these men.
Mr Jurd submitted that the K proposal was clearly to the child’s benefit, and that the mother had carried out fairly extensive investigations in consultation with Dr R and the Principal of H SSP.
Mr Jurd saw the question of the drinking by the paternal grandfather as a factor against the father’s proposal. Mr Jurd described him as “clearly a heavy drinker”, and one who had been so for the entirety of his life and had no plans to reform.
Mr Jurd submitted that the history of the relationship between the father and the mother explained why there was acrimony and a lack of communication between them. The father had, in fact, received a custodial sentence for a breach of the apprehended violence order covering his behaviour towards the mother.

The principles to be followed

In dealing with matters involving children, the court must be mindful of the object and principles set out in section 60B of the Family Law Act 1975:
“(1)The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure 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 of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
c)Parents 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.”
Section 65E of the Family Law Act states that in deciding whether to make a parenting order in relation to a child, “a court must regard the best interests of the child as the paramount consideration”.
Section 68F(2) sets out the matters the court must consider when determining what is in the child’s best interests. They include:
a)Any wishes 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 wishes;
b)The nature of the relationship of the child with each of the child’s parents;
c)The likely effect of any changes in the child’s circumstances;
d)The practical difficulty and expense of the child having contact with a parent;
e)The capacity of each parent to provide for the needs of the child;
f)The child’s maturity, sex and background;
g)The need to protect the child from physical or psychological harm;
h)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
i)Any family violence involving the child or a member of the child’s family;
j)Any family violence order that applies to the child or a member of the child’s family;
k)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; and
l)Any other fact or circumstance that the court thinks is relevant.
These three sections and their interaction were considered by the Full Court of the Family Court of Australia in B and B: Family Law Reform Act 1995, (1997) FLC 92-755, where Nicholson CJ, Fogarty and Lindenmayer JJ held that in proceedings under Part VII relating to parenting orders, the best interests of the particular child in that case remains the paramount consideration. In that process the Court must consider the matters set out in section 68F to the extent that they are relevant in a particular case, the weight to be attached to any one consideration depending upon the circumstances of the individual case, and is a discretionary exercise by the trial judge. Ultimately it is a question of applying in a commonsense way the individual sections so as to achieve the best interests of children in a particular case.

Conclusions

In this case, there is no doubt that the subject child poses considerable problems in parenting. He has special needs, as he is intellectually disabled and suffers from some behavioural problems. His physical health has been a matter of concern for most of his life, and he requires ongoing medication and medical supervision. His difficulty in communicating only makes the task of parenting more difficult.
He has lived with his mother all his life, and there is no doubt that this taken a heavy toll on the mother. She appeared to be depressed when interviewed by Dr Q, as she did when she was interviewed earlier by Erika Pidcock, the Court Counsellor. Whether this is attributable to the strain of looking after the subject child or the ongoing litigation, or some other cause, is difficult to assess.
Turning to the list of principles set out in section 68F(2), the child has expressed a wish, at different times, to be with both parents. The child’s maturity level, due to his intellectual disability, means that the court should give his expressed wishes little weight.
Dr Q makes it clear that the child has strong bonds of attachment to both his mother and his father. He is as warmly attached to his father as he is to his mother[1]. The nature of the relationship between the child and each of his parents is very positive.
[1] Order 30A Report, page 17
If the court made an order placing the child in the care of the father instead of the mother, the child’s circumstances would change significantly. He would be living permanently in the N area rather than in the Sydney metropolitan area, in a household where he had previously only gone for holidays. He would have to leave the H School and attend a new school, in a new area. He may well remain under the care of his current paediatrician, Dr R, but he would have a new general medical practitioner. He would see his mother for contact. He would leave the present environment at K, although he has not been there for very long.
The proposal by the mother to place the child in K is also a significant change, and there is no evidence before the court at this early stage as to how the child has reacted to his placement at K. The placement has been supported by Dr R, in his evidence, and has received some tentative support from Dr Q[2]. He would continue to live with his mother on weekends and to visit his father under the present, or different, contact arrangements.
[2] Transcript, 1.2.01, page 60
If the child were to reside with the father, there should be no greater difficulty in the case of the mother having contact as there is experienced by the father at present. The travelling would just be in the other direction. The father has said that he envisages the mother having contact on alternate weekends and during the school holidays. There is no evidence to show that the father would not comply with this arrangement.
On the other hand, if the child were to remain living with the mother under the present arrangements, including K, the father’s contact arrangements would be unaffected. There would be no greater practical difficulty or expense than there is at present. It may be, with the child living during the week at K, that the father would be able to have contact with him there, although there is no evidence to show that the mother does not facilitate telephone contact with the father. On her own evidence, she has rung the father and let the child speak to him on the telephone.
The mother has shown that she has the capacity to provide for the needs of the child. It is clear that she found it a difficult task and wearisome task, but she still has the motivation to continue. She has attended to the boy’s medical needs, and has regularly sought advice from a paediatrician about his care. Dr R gives her high praise. She has built up a positive relationship with the Principal and staff at H Special School, which appears to be an appropriate educational placement for him. The placement at K only came about after consultation with Dr R and the Principal at H. She has expressed the view that K is a necessary placement so that the child can learn to live in society, which I take to demonstrate an understanding by her that this child will grow into an adult and will have to learn to live as an adult, albeit an adult with an intellectual disability.
At the same time, the mother has ensured that the child has support form her own mother, the child’s grandmother, and his half brother. The mother has also moved to a position where she can take a positive view of the child’s relationship with the father (even though she is still hostile towards him), and take steps to arrange for him to spend more time with him. This shows an understanding of the child’s needs and an ability to put the child’s needs before her own.
It is hard not to reach the conclusion that there is still some doubt attached to the prospect of the child living permanently with his father. There is a great difference between the child spending contact time with the father and living with him permanently. The very vagueness of the father’s proposals raises the inference that he is making light of the difficulties involved in the care of this child. The mother believes that he does not really understand the extent of the problems
The father was criticised by Mr Jurd, for the mother, for his tardiness in calling his brother and his own father to give evidence, even though they both live in the same home. Dr Q did not interview either of them, and she had no material to work on, apart from what the father told her. Neither the paternal grandfather nor the brother had put on affidavits at that stage. There affidavits did not appear until the hearing had already commenced, and they had to be heard out of sequence, although there was no reason why either of them could not have been waiting to give evidence as soon as the father had finished. Neither of them has a job to worry about, so they would have time on their hands. This should not be taken as a criticism of either of them. The paternal grandfather is aged 76, after all, and should be able to enjoy his retirement at that age.

I am not satisfied that the paternal grandfather’s drinking habits are a cause for concern. His evidence is that he goes to the bowling club once fortnight for the raffles, where he consumes about four schooners of beer over a period of about three hours. He travels to and from the club by bus. It would be a sad situation indeed if an elderly man could not enjoy a night out once a fortnight where he drinks a few glasses of beer and yarns to his mates.
The grandfather also gave evidence that he buys a carton of beer once a fortnight, on pension day. This carton lasts him for the fortnight. Leaving aside the night when he goes out to the club, this means that he consumes slightly less than two stubbies of beer a day. Assuming he does not drink any other alcohol, he can hardly be classified as a heavy drinker. The father’s brother is virtually a non-drinker.
The fact is that neither of these two men plays a significant role in the care of the child. Each says as much in his affidavit - “I have nothing to do with the day to day care, control and management of (the child)”[3]. Thus, the benefit of an extended family suggested by Ms Druitt in her submission is more apparent than real. It is the father who looks after the child on contact, and it will be the father who will look after him if the child resides with him.
[3] Paragraph 5 of the affidavit of each deponent, both dated 31 January 2001
There is clearly a good relationship between the father and the child. It is obvious that the child benefits from contact with his father on a regular basis, and the relationship should continue. The mother has come to recognise the positive aspects of this relationship, and has arranged for the child to spend holiday contact with the father, appreciating that this is something that the child appreciates.
I am not satisfied that the father has demonstrated that the proposed change in residence would bring about any significant improvement in the child’s life. The change in the child’s life would be major, and would bring a degree of stress with it, although not so much stress that the child would be unable to cope. The mother has worked hard to provide care for this child, and has accepted the heavy burden of looking after him and guiding him towards adulthood. There is no evidence that her care of her son is inadequate, or that her actions are motivated by other than a desire to act in his best interests. There is a need, though, to ensure that contact with the father is as trouble-free as it can be, and the mother will need to communicate more information to the father about health, medical and educational issues to do with the child. If she provides this information, the father will be less likely to act out of frustration. He has a role to play in this child’s life which extends beyond being a “contact parent”.
The father’s application that the child should reside with him will be dismissed. There will be orders defining the father’s contact with the child. I note that the child B has attained the age of 18 years.
I make the orders set out in the attached schedule.

I certify that the preceding one hundred forty-nine (149) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:

Date: 24 September 2001

[2001] FMCAfam 131

8 October 2001