Sharpe and Baxter

[2014] FCCA 344

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHARPE & BAXTER [2014] FCCA 344

Catchwords:
FAMILY LAW – Parenting orders regarding young child with autism – slight conflict between reports, one of which comes from a therapist involved with the child (and the Mother), the other comes from an expert engaged by the Father – Mother’s resistance to engagement with independent specialist.

Legislation:

Family Law Act 1975, ss.60CA, 60CC(3)(c), (f), (g), (i), 61DA, 65DAA

Mazorski v Albright (2008) 37 Fam LR 518

Applicant: MR SHARPE

Respondent: MS BAXTER

File Number: CAC 1269 of 2012

Judgment of: Judge Neville

Hearing date: 21 November 2013

Date of Last Submission: 19 December 2013

Delivered at: Canberra

Delivered on: 26 February 2014

REPRESENTATION

Counsel for the Applicant: Self represented

Solicitors for the Applicant:

Counsel for the Respondent:

Solicitors for the Respondent: Cater & Blumer, [G]

ORDERS

1. The child, [X], born [in] 2007, live with the Mother;

2. The Mother and Father have equal shared parental responsibility for [X], but that failing the parties being able to reach an agreement about a major decision to be made about [X]’s health, the Mother shall make the final decision;

[X]’s Autism

1. The Mother is to provide Ms T with a copy of Dr B’s report, dated 7 October 2013;

2. The Father is to attend one information session with Ms T prior to the commencement of [X]’s overnight time with his Father;

3. After three (3) months of overnight time, if there are any issues in relation to it:

   (a)Ms T and Dr B are to work out a response/management strategy;

   (b)

   The Father and Mother are then to attend a joint session with

   
   

   Ms T and Dr B to resolve any ongoing issues regarding overnight time;

[X]’s Time with his Father

1. After the Father has attended the information session with Ms T, [X] will spend time with his Father as follows:

   (a)Each alternate weekend from after school Friday to the commencement of school Monday morning commencing Friday 7th March 2014 (unless an alternative commencement date is agreed in writing between the parties). If during holidays then collection will occur at 4pm on Friday and drop off at 9am on Monday;

   (b)For two (2) weeks during the school holiday periods with the parties to agree as to which weeks and in the absence of agreement the Father to have the following:

   (i)Week two (2) and week three (3) of the holidays commencing in the year 2014 and each even year thereafter;

   (ii)Week four (4) and week five (5) of the holidays commencing in the year 2015 and each odd year thereafter;

   (c)From 2pm Christmas Day to 2pm Boxing Day commencing in the year 2014 and each even year thereafter;

   (d)From 4pm Christmas Eve to 2pm Christmas Day commencing in the year 2015 and each odd year thereafter;

   (e)From 9:00am Good Friday to 4:30pm Easter Saturday commencing in the year 2014 and each even year thereafter;

   (f)From 4:30pm Easter Saturday to 9:00am Easter Monday commencing in the year 2015 and each odd year thereafter;

   (g)From 9am to 5pm on Father's Day every year;

   (h)For a period of not less than four (4) hours on the child's and Father's birthdays every year;

   (i)Unless otherwise agreed between the parties in writing, telephone contact each Wednesday in the off-week from 6:30pm, with the Father to initiate the call, and (subject to how the child is coping) for a duration of no more than thirty (30) minutes;

2. Outside school hours, any change-over take place at McDonald's Family Restaurant, [G];

[X]’s Time with his Mother

1. In addition to Order 1 of these orders, and notwithstanding Order 6 of these orders, the child is to spend time with his Mother as follows:

   (a)From 9am to 5pm on Mother’s Day every year;

   (b)For a period of not less than four (4) hours on the child’s and the Mother’s birthdays every year;

Ancillary Orders

1. Each party keep the other informed of any upcoming medical appointments for the child, including but not limited to, doctors’ appointments and specialist appointments so as to provide the other party with the opportunity to attend;

2. Each party keep the other informed of the child's health and any health issues as well as procedures or operations to be undertaken prior to those operations of procedures being undertaken, except in cases of emergency (with the party in whose care the child is in to inform the other party as soon as possible);

3. The parties are to authorise the child's doctors and specialists to provide copies of all reports and tests results regarding the child's health directly to each party;

4. The Mother is to provide to the Father a copy of [X]’s asthma plan and the Father is to follow that plan when [X] is in his care;

5. The Mother is to authorise the school to provide the Father with reports, notices of any school events, school newsletters, and any other similar information;

6. The Father may attend any school or sporting function that the child is participating in; it is requested that he give the Mother at least one (1) days’ notice of his intention to do so;

7. In the event the Mother is unable to care for the child, the Father be provided with the first option of care;

8. Except in cases of emergency, the parties use a communication book to inform each other of matters referable to the child's welfare and the communication book is to accompany the child at changeover;

9. The Mother and Father are to ensure that, except in cases of emergency, only the Mother and Father write in the communication book;

10. Each party keep the other informed of their respective telephone numbers (including landline and mobile) and addresses;

11. In the event the child becomes unduly upset and is not able to be settled by the Father, the Father is to return the child to the Mother’s care;

12. The Mother and Mother’s partner encourage the child to refer to the Father as "Dad";

13. Neither party denigrate the other party in the presence of the child;

14. Each party inform the other if they are taking [X] out of the [G] area during the time that [X] is with them.

AND IT IS NOTED THAT:

A.Orders 1, 6(a), 6(c), 6(d), 6(e), 6(f), 6(i) 7, 9, 18, 19, 20 and 21 are made by consent.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 1269 of 2012

MR SHARPE

Applicant

And

MS BAXTER

Respondent

REASONS FOR JUDGMENT

Introduction

1. All parenting contests are very unfortunate, and usually only differ as to degree in the level of misfortune, which is felt by both parents as well as by the child or children involved.

2. Sometimes, the difficulties themselves arise out of circumstances over which neither parent has control, for example, where a child or parent has some medical condition.  Such is the situation here, where 7 year old [X] has autism.

3. Sometimes, too, the difficulties arise from, or are compounded by, the conflict between the parents, as well as their respective circumstances (for example, the geographical distance between the residences of each parent), which make even every-day practical matters very difficult to negotiate as well as to organise.

4. A number of these basic issues are on display in this case.  Yet, as is readily apparent from the orders sought by each party, there is now not very much separating them.  This is so to such an extent that the Court could almost (but unfortunately cannot) make a significant number of the orders by consent.  That said, the Mother confirms in her submissions that she consents to orders numbered 1, 3, 4(f) – (j), 4(l), 5, 6, 7, and 13-16 as sought by the Father.

5. The basal issue relates to [X]’s time with his Father. 

6. In this regard, and leaving aside school holidays and special days, the Mother seeks orders (subject to certain matters concerning the provision of information to, and “instruction” of, the Father by Ms T – noted below) that [X] spend time with his Father, during school terms, “from 3.15pm Friday” after school until 9.15am on Monday morning, with the Father to pick up and drop off his son at school.  It is not clear on the face of her orders if this is for each week or each alternate week.

7. For his part, also leaving aside school holidays and special days, the Father relevantly seeks time with [X] each alternate weekend from after school on Friday until before school on Monday.

8. It will be immediately obvious that, subject to clarifying the regularity or intention of the Mother’s orders (which has now occurred), the parties are in furious agreement on this fundamental issue of “time with.”  Because Dr B proposes (also noted below) alternate weekend time, these reasons proceed on the basis of the alternate weekend routine as being sought by both parents.  However, because there is no formal consent, reasons must be provided and orders made.

9. In addition to the consumption of resources which may not have been completely necessary, a further cause for disquiet is the languid conduct of the matter.  To some degree this has been because of circumstances, such as the Mother’s pregnancy in 2013, and her change of legal representation.  However, without making any formal finding of delay, I suggest that the Court’s and the Father’s sense of frustration has been, at times, palpable, as well as understandable.

10. For example, the Father’s Initiating Application was filed in August 2012.  The matter was adjourned on various occasions between December 2012 and May 2013, which included consent orders for the child to spend regular time with his Father (and for equal shared parental responsibility between the parents) on 28^th May 2013.

11. In late August 2013, with the Father having advised the Court that he had sought [repeatedly] to resolve the matter on a final basis by consent but with no response from the Mother’s then solicitor, the Court ordered that a report be obtained in relation to the child’s autism and parenting orders, and that the matter be dealt with on the basis of written submissions and an expert report.

12. In late September, with there having been ongoing discussions about who the relevant expert should be, orders were ultimately made in Chambers for the preparation of a report by Dr B.  Dr B’s report was formally released to the parties on 17^th October 2013 (and also formally admitted into evidence as Exhibit A), and orders subsequently made for a timetable and the provision of written submissions.

13. I should also note that there was something of a contest, raised by the Father, over the impartiality of the child’s treating psychologist, Ms T, who provided an affidavit (filed 29^th August 2013) which attached to it an earlier report, dated 15^th September 2012.  For current purposes, I need not resolve or otherwise comment on such a contention.

14. At the end of the day, one thing is clear: [X] needs to spend regular time with his Father.  In my view, over the course of these proceedings alone, Mr Sharpe has abundantly established that he has [X]’s best interests at heart, and that there are no lengths to which he will not go to ensure that [X] is cared and provided for in the most appropriate way.  All of this recognises that [X] is a child with particular needs which require regular, routine attention – with special emphasis on “regular” and “routine”. 

15. In summary, as I understand the Mother’s position, her primary concern is to ensure that the Father is provided (by her) with up to date and fulsome information regarding [X]’s routine, and that the Father also speak with Ms T about an appropriate regime to increase [X]’s time with his Father.  Neither of these things should pose any major problem.  As I have indicated, I am more than satisfied that Mr Sharpe is totally committed to the welfare and best interests of his son, and will do anything (and everything) that is required of him.

16. Given the position of the Mother, the formal scope of the dispute is solely about how to increase the child’s time with his Father.  Indeed, on the Mother’s evidence, it really becomes (or is) a question of “management.”  At paragraph 38 of her only affidavit filed in the proceedings on 30^th October 2012, she stated (emphasis added):

    I don’t have a problem per se with [Mr Sharpe] having contact with [X] … on the advice I have received, it has to be carefully managed and proceed on a cautious basis.  [Mr Sharpe] would also have to be ready and able to manage [X] in the same way I do so as not to confuse him.

17. The Mother’s approach set out in her affidavit in October 2012 is consistent with her submissions, filed in late December 2013.

18. Accepting the limitations that necessarily apply to determining matters “on the papers”, these reasons proceed as follows: (a) orders sought by each of the parties; (b) background information; (c) consideration of expert reports (Ms T & Dr B); (d) the legislative pathway, (e) consideration & resolution.

Orders Sought

1. The Applicant Father sought orders to the following effect:

   1.   That the Child, [X], born [in] 2007, live with the Mother.

   2.   That the parties have equal shared parental responsibility.

   3.   That outside school hours any change-over take place at McDonald's Family restaurant, [G], in the state of New South Wales.

   4.   That the child spend time with the Father as follows;

   a.   each alternate weekend from after school Friday to the commencement of school Monday morning commencing Friday 13th December 2013. If during holidays then collection 4pm Friday and drop off 9am Monday.

   b.   For two weeks during the school holiday periods with the parties to agree as to which weeks and in the absence of agreement the father to have the following:

   i.    Week two and week three of the holidays commencing in the year 2014 and each even year thereafter.

   ii.     Week four and week five of the holidays commencing in the year 2015 and each odd year thereafter.

   c.   From 4pm Christmas Eve to 2pm Christmas Day commencing in the year 2013 and each odd year thereafter.

   d.   From 2pm Christmas Day to 2pm Boxing Day commencing in the year 2014 and each even year thereafter.

   e.   From 9:00am Good Friday to 4:30pm Easter Saturday commencing in the year 2014 and each even year thereafter.

   f.    From 4:30 Easter Saturday to 9:00am Easter Monday commencing in the year 2015 and each odd year thereafter.

   g.   From 9am to 5pm Father's Day.

   h.   For a period of not less than four hours on the Child's and Father's birthday.

   i.    Telephone contact each alternate Wednesday from 6:30pm.

   5.   That the mother spend time with the child as follows;

   a.   From 4pm Christmas Eve to 2pm Christmas Day commencing in the year 2014 and each even year thereafter.

   b.   From 2pm Christmas Day to 2pm Boxing Day commencing in the year 2013 and each odd year thereafter.

   c.   From 4:30pm Easter Saturday to 9:00am Easter Monday commencing in the year 2014 and each even year thereafter.

   d.   From 9:00am Good Friday to 4:30pm Easter Saturday commencing in the year 2015 and each odd year thereafter.

   e.   From 9am to 5pm Mother’s Day.

   f.    For a period of not less than four hours on the Child's and Mother's birthday .

   6.   That both the Father and the Mother equip their homes with any visual aids the child requires.

   7.   That each party keep the other informed of any upcoming medical appointments for the child, including but not limited to, Doctors appointments and specialist appointments so as to provide the other party with the opportunity to attend.

   8.   That the parties are to authorise the child's doctors and specialists to provide copies of all reports and tests results regarding the child's health directly to each party.

   9.   That in the event the mother is unable to care for the child, the father be provided with the first option of care.

   10. That in the event that the child is ill and is unable to spend time with the Father, the Mother to provide a doctor’s certificate to the Father and provide him with compensatory time.

   11. That the parties use a communication book to inform each other of matters referable to the Child's welfare and the communication book is to accompany the Child at changeover.

   12. That each party keep the other informed of the Child's health and any health issues as well as procedures or operations to be undertaken prior to those operations of procedures being undertaken, except in cases of emergency (with the party in whose care the child is in to inform the other party as soon as possible) .

   13. That both parties keep the other informed of their respective telephone numbers (including landline and mobile) and addresses.

   14. That in the event the child becomes unduly upset and is not able to be settled by the Father, the Father is to return the child to the Mothers care.

   15. That the Mother and mothers partner encourage the Child to refer to the Father as "Dad".

   16. That neither party denigrate the other party in the presence of the child.

2. The Respondent Mother sought the following orders:

   1.   That the mother and father have equal shared parental responsibility for [X] but that failing the parties being able to reach an agreement about a major decision to be made about [X]’s welfare, the mother make the final decision.

   Managing [X]’s Autism

   2.   That the father is to attend all of [X]’s therapy sessions as directed by Ms T or any other professional managing [X]’s autism.

   3.   That the father is to follow the advice and continue to follow the advice of Ms T (or any other professional managing [X]’s autism).

   4.   That if Ms T (or any other professional managing [X]’s autism) is of the view that the move to entire weekends has not been a success for [X] and that the time needs to be reduced both parents will follow the advice of that professional and reduce the time [X] spends with his father and will follow the advice of
   Ms T (or any other professional managing [X]’s autism) as to how to increase the time gradually.

   5.   That both the mother and father equip their home with visual aides recommended by [X]’s speech therapist and follow all advice provided by her.

   6.   That the mother forthwith provide to the father a copy of [X]’s routine in her household and the father is to follow that routine when [X] is in his care.

   Time with father

   7.   That prior to [X]’s time with his father increasing the father attend upon Ms T and follow her directions as to the management of [X]’s autism in his home.

   8.   That once the father has complied with paragraph 6 of the orders he is to spend time with [X] as follows:

   a.     During school terms from 3.15pm Friday then the father is to collect him from school to 9.15am on Monday morning when the father is to drop [X] at school.

   b.     For the first week of the mid-year school holidays and for the first week in January each year.

   c.     Other times as may be agreed from time to time

   9.   That [X] spend time with his father from 2pm Christmas Day to 2pm Boxing day every year.

   Miscellaneous

   10. That the mother and father use a communication book to communicate about [X] that is to travel with [X] to each parents house and changeovers

   11. That the mother and father are to ensure that only the mother and the father write in the communication book.

   12. That the father is to forthwith obtain a copy of [X]’s asthma plan and is to follow that plan when [X] is in his care.

   13. That each party inform the other if they are taking [X] out of the [G] area during the time that [X] is with them.

Background

1. The Father’s Account: The Father is aged almost 34 years [the Mother will turn 40 this year].  He is a national of Scotland who came to Australia in 2006.  He became a permanent resident of this country in 2011. 

2. In 2006, the parties had a brief sexual liaison. 

3. The Father is now in a relationship, and lives with a lady who has been his partner since 2011. 

4. The Mother is in a relationship with Mr J, with whom she has lived since 2009.  They have two young children, in addition to [X] living with them.

1. I need not record the Father’s account of the circumstances of the pregnancy with [X], or the details of what the Father says was the Mother’s hostility to him during the pregnancy.

2. The Father says that he first met [X] when the baby was 10 months old. 

3. The Father says that the Mother took out AVO proceedings in 2008 and 2010 both of which were either withdrawn or dismissed.  The Mother gives a slightly different account of these proceedings.  However, it is not necessary to determine which account is more accurate, because both parties agree that the proceedings ultimately did not proceed. 

4. The Father says that he spent sporadic time with [X] between 2007 and 2011.  By way of further detail, the Father says the following.

5. He says that there was a parenting plan agreed in 2008 which provided for time each Saturday between Father and son as well as one overnight each month.  This parenting plan is Annexure RS1 to the Father’s affidavit filed 17^th August 2012.

6. The Father says (and the Mother confirms in her affidavit material) that he took the child to the Gold Coast for 10 days or thereabouts in January 2009, and that this was primarily to enable [X] to spend some time with his paternal grandparents who were visiting from Scotland. 

7. There was a further mediation in May 2009, and again in January 2011, the latter resulting in a further parenting plan, which is Annexure RS2 to the Father’s affidavit. 

8. The Father then recounts, supported by copies of various correspondence from different firms of solicitors over time, his [purported] difficulties in spending time with [X] since January 2011.

9. The Father also says that the parties had previously agreed that [X] would attend [S] School in [G].  However, he says that without reference to him, [X] was enrolled in [N] School.  In response to this, the Mother says that [N] School has been able to provide a range of extra support that has not previously been available, and that otherwise [X] may attend [S] School if and when extra assistance is available at that school.

10. Finally, the Father says that he seeks to be able to obtain copies of [X]’s school reports and to attend school functions; the Mother says there is no difficulty with either of these requests, including the Father attending parent/teacher interviews.

11. The Father says that he has sought relevant information from the Mother regarding [X]’s autism, but with limited success in this regard; he confirms however that he has attended a course on autism in [G] in 2011, and that he wants to learn more about it.  He says that his partner has also attended a course in relation to autism more recently.

12. The Father says that he pays child support [as assessed].

13. The Mother’s account: The Mother (who will turn 40 this year, as I have earlier noted) says the Father did not want the child when she told him she was pregnant, and further that the Father did not wish to acknowledge [X]’s paternity until February 2010.  At the same time, she acknowledges that the Father had his first overnight time with [X] in June 2008. 

14. The Mother maintains that the Father did not, or did not consistently, seek to spend time with [X], or otherwise have appropriate measures in place for him such as a suitable car seat.  She also says it was the case, from time to time, that the Father would prefer to spend time with his girlfriend than with [X], or prefer to attend other social commitments than be with his son.

15. The Mother also says that over time she started to notice that [X] would be more unsettled after he had spent some time with his Father.  She says, too, that the Father did not respond to her parenting proposal that was communicated in June 2011 until December of that year, because he was overseas with his [then] girlfriend.

16. The Mother expresses concern at a little length about the Father being properly diligent about [X]’s health, particularly in relation to his proper use of the child’s asthma medication.  The Mother also denies that the Father has consistently paid child support.

17. As indicated earlier in these reasons, the Mother’s position, both in her affidavit material and much more recent submissions, is that she is not opposed to [X] spending time with his Father, but simply she wishes to ensure that the Father is diligent in relation to [X]’s health, and “manages and cares for [X]” in the same way it occurs in the Mother’s home.

Expert Reports

1. The Reports of both Dr B (Exhibit A) and that of Ms T (which is annexed to her affidavit of August 2013) have limitations.  This is said without criticism.  For example, Dr B’s Report was conducted in circumstances where the Mother could not attend personally (due to her recent pregnancy) and therefore his interview with her was conducted by telephone.  It was also the case, as is typical with almost every report, that only one interview with either one or both parents, and/or the subject child/children takes place.  This is to say that reports are usually prepared on the basis of non-continuing observations.  However, a particular benefit (but not the only one) with this report is the independent recording of the relationship between [X] and his Father.

2. Likewise the Report of Ms T suffers from the limitations where it is both quite brief, and did not have the benefit of any engagement with [X]’s Father. 

3. Notwithstanding the limitations to which I have referred, I note the following summary of comments from each of the Reports.

4. The Report of Ms T: Ms T notes that, as at September 2012, [X] “makes very little eye contact, has difficulty with reciprocal communication, delayed speech, lack of understanding of emotions in himself and others, restricted behaviours, and inability to cope with change in routine…” Ms T also notes that [X] has “quite significant behavioural difficulties that can also be physically aggressive.”

5. Ms T also noted that “any change triggers intense anxiety for [X] [and] it is important that any impending change be introduced slowly and in a positive manner.”  She also notes that the introduction of contact with Mr Sharpe, she considers, has the potential to be very positive but cautions that “this needs to be done slowly and regularly so that [X] can manage the change and not trigger excessive anxiety, which would cause him to form a negative association with his Father.”

6. Of course, the somewhat alarming thing (from the Court’s perspective, and doubtless the Father also) is that as at the date of the Report, Ms T notes that the Father had not had any contact with [X] for at least 19 months. 

7. Ms T stresses the need for regularity and certainty in [X]’s routine and the need to proceed with a degree of caution for [X]’s sake.  This includes references to overnight time between Father and son. 

8. I simply observe that even on the Mother’s evidence [X] had been spending some overnight time with his Father at least since 2008.  That being the case, how and why Ms T is so cautious might be considered somewhat problematic, although at that time, it is understandable or at least explicable given the Father’s [then] lack of time with [X].

9. The Report of Dr B: As a general observation, Dr B’s report conforms more generally to the kinds of reports prepared for this Court, because it addresses issues that would more commonly be considered under Part VII of the Family Law Act 1975 (“the Act”) and also because he is aware of and refers to Court Rules in relation to the preparation of expert reports (albeit that the reference is to the Family Law Rules 2004 as opposed to the rules of this Court). 

10. The report of Dr B confirms that he read reports from [X]’s paediatrician, two reports from psychologists (including Ms T), an occupational therapist, and a speech pathologist.  Dr B notes in his report that, in the light of the material to which he referred and had read, he confined his assessment to Mr Sharpe’s application to the Court for time with [X] each alternate weekend, every alternate Wednesday, and a two week holiday period every year. 

11. After noting the process that he adopted in his forensic assessment, and the background information that had been provided by Ms Baxter, her partner Mr J, and by Mr Sharpe, Dr B provides diagnostic comment initially about [X]’s cognitive functioning.  Amongst other things he accepted that [X], from time to time, presents with challenging behaviours, but at the same time observed that it is important “to not pathologise a young child who has obvious speech/language problems and aggressive behavioural outbursts with descriptors such as “classic autism”.” 

12. Dr B also noted (p.4):

    [X] has idiosyncratic behaviours and mannerisms that reflect autistic traits.  It is possible that [X] may have traits more akin to Asperger’s Syndrome (AS) rather than classical autism spectrum disorder.  The writer wonders what diagnostic opinion a child psychiatrist would form from direct behavioural observation and interaction with [X].

13. In the section of his report that provides an assessment of Mr Sharpe, Dr B viewed certain video footage which showed the interactions between [X] and his Father in different settings, notably at home and in a park.  In my view, significantly, Dr B stated (p.4):

    [X] appeared to be spontaneously laughing, making eye contact and adding to the content of make believe in certain games.  His interaction and playing was age appropriate.  [X] appeared at ease with his Father and partner Ms M.  The play behaviour did not appear to be forced or contrived.  Apart from his expressive language problems, the style of play and engagement was not reflective of a highly anxious child who has classic autism spectrum disorder. 

14. In relation to the assessment of Ms Baxter, and after noting that it was problematic because of it being a telephone interview, Dr B noted firstly Ms Baxter’s regular engagement with him (which Dr B said he appreciated); secondly, he confirmed that it was obvious that Ms Baxter “is highly invested in [X] as a child with special needs.”  Dr B further observed (emphasis added): “her sense of self is based on being a Mother who needs to fight for the rights of her child and facilitates all avenues of therapy.  It is possible that Mr Sharpe may threaten her self image and sense of self efficacy as the ultimate protector for her son.”

15. After noting some other issues generally in relation to Ms Baxter and her care of [X], Dr B observed (p.5):

    The writer has no doubt that Ms Baxter is entirely devoted to [X].  She has one other child and is [at the time of the report] pregnant.  No doubt her life is very busy and demanding.  Ms Baxter has to manage a range of competing demands based around [X]’s needs.  The writer noted the amount of times she described what goes into preparing [X] for any change in his life.  Her description of the paramount need for consistency in his life is well noted. 

16. I need not note Dr B’s observations of Mr J, other than that he presented as an important male role model in [X]’s life, and that he supports Ms Baxter in catering for [X]’s behavioural and emotional needs.

17. In relation to his assessment of [X], Dr B made the following comments. 

18. First, he said that [X] displayed no separation anxiety during the session.  It was obvious that [X] has expressive language problems, and certain idiosyncratic word repetitions.  Secondly, Dr B noted that [X] conversed freely and spontaneously in an animated and spontaneous way.  “His interaction involved humour and a desire to converse on a range of interest areas”. [X] was eager to talk about his recent visit with “Dad-[first name omitted]” and he described Mr Sharpe’s partner “Ms M” as fun, and that she cooked chicken which he reported liking very much.

19. Following an exercise that involved drawing members of his family, the detail of which need not be recounted here, Dr B said he concluded (at p.6) that “no anxiety or distress existed in this basic attachment family constellation exercise when it came to discussing or drawing

    
    

    Mr Sharpe as an identifiable Father figure in his life.”

20. In relation to a further “two homes story exercise”, Dr B noted that [X] was able to talk about going to two homes, to include his Father in the story, and that this exercise “did not reveal any anxiety or issues of attachment concern”. 

21. Finally, Dr B observed that [X]’s “lack of anxiety at being on his own and being with the writer on his own shows he can readily separate from a primary caregiver if he is emotionally prepared” (emphasis added). 

22. In terms of recommendations, Dr B said that he agreed fully with Ms Baxter (and Mr J) on consistency being paramount in [X]’s daily routine.  Dr B recommended that Mr Sharpe’s time be allowed to increase for the requested pick up time on Friday afternoon until drop off Monday every alternate weekend.  He does not support the continuity of a mid-week access for [X]; he does support an annual holiday of two weeks.

23. After noting a range of important and helpful resources for parents in relation to children with autism and similar traits, Dr B noted in particular that [X]

    … needs continuity and unfettered access to his Father so he can internalise the concept that every weekend [sic] he is with Dad-[first name omitted].  Mr Sharpe needs to adjust his perspective on autism and concede that [X] is on the higher function end of the spectrum in line with Asperger’s Syndrome.

24. Dr B also said (p.8):

    This alternate weekend access increase will fail if it is sabotaged or interfered with in any way by any party.  The writer opines that [X]’s wellbeing will be jeopardised if for some reason his assigned weekend does not transpire.  The writer is entirely confident that Mr Sharpe will make an absolute commitment to meeting an alternate weekend arrangement.

Legislative Pathway, Consideration & Resolution

1. Given how the matter is to be determined – “on the papers” – and all the limitations such a course entails, it is important to proceed with particular caution, especially in relation to any findings or formal conclusions, in the absence of either agreement between the parties or undisputed independent evidence.

2. The basic principles that should be applied in parenting cases have been summarised by Brown J in Mazorski v Albright.

3. Respectfully, I adopt Brown J’s overview of relevant sections (and principles) of Part VII of the Act. Her Honour’s comments should, of course, be considered in the light of relevant statutory changes, for example, to s.60CC(3)(c).[1]  At [3] – [6] her Honour said:

   [3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).

   [4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.

   [5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA).  The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent.  The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence.  The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.

   [6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).

   [1] (2008) 37 Fam LR 518. Her Honour’s remarks in relation to the “twin pillars” have been consistently cited with approval by the Full Court, for example in Moose & Moose (2008) FLC ¶93-375; McCall v Clark (2009) 41 Fam LR 483; Sigley v Evor (2011) 44 Fam LR 439; Shaeffer v Jacobs (2011) FLC ¶93-468; Maluka v Maluka (2012) 45 Fam LR 129.

4. Her Honour also made important observations about “meaningful” as that term is used in Part VII of the Act in the context of what is comprehended by a “meaningful relationship.” At [20] - [26], her Honour outlined a range of relevant considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[2]

   [2] Brown J’s remarks in this regard have been endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335] similarly approved Brown J’s remarks.

   [20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions.  At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach.  The paragraph continues:

   The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.

   [21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division.  The objects use the words “meaningful involvement”.

   [22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:

   The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody.  The presumption relates solely to the decision making responsibilities of both parents.  New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.

   [23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):

   [196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship.  This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents.  This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time.  The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders.  This is set out in s 60CA by item 9.

   …

   [199] Section 65DAA (2) – (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement.  It is intended to ensure a focus both on the amount of time and the type of time.  It would include both day time contact and night time contact.  It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationship with their children and share important events including everyday time with the child.  It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.

   [24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”.  A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”.  These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989.  It defines “meaning” (in generalised use) as “significance”.  The examples provided take the matter no further.

   [25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”.  Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.

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

1. In the light of (a) the above outline of principle, (b) the various facts and circumstances summarised from the parties’ material, and (c) the comments and observations of the experts, I note the following.

2. First, given that there were consent orders previously made in May 2013, which provided for equal shared parental responsibility, and in the light of the respective accounts of events here which do not, in my view, rebut the presumption in its favour according to s.61DA of the Act, such an order is appropriate here.

3. However, in all of the circumstances in this matter, particularly having regard to [X]’s autism, it is appropriate, in my view, that where there is (or may be in the future) any relevant disagreement between the parents regarding any therapeutic intervention by health or related professionals regarding treatment for [X], and because the Mother will remain his primary carer, it is appropriate that the Mother’s ultimate decision shall determine that treatment.  Thus the order for equal shared parental responsibility will be qualified to reflect this.

4. Secondly, given the Mother’s agreement with or consent to those parts of the Father’s orders indicated earlier in these reasons, a number of matters that would otherwise require attention in the course of considering the pathway in Part VII of the Act need not be addressed specifically. The following, however, should properly be noted.

5. There are no views relevantly expressed by [X] about time with either parent, save that Dr B notes the relaxed and comfortable relationship between [X] and his Father.  From this the Court may reasonably find that there is no formal opposition expressed by the child to spending time with his Father.

6. Similarly, and for the same reason, the Court may reasonably infer that, at least in more recent times, [X] has a good relationship with his Father, and likewise with Mr Sharpe’s partner, Ms M.  The Court assumes that [X] has a good and close relationship with his Mother.  Certainly there is no challenge to it in any way, nor could there be any logical or evidentiary reason for such a challenge.  The Court might also readily infer that [X]’s young siblings in his Mother’s household are significant in his life – but such things need not detain the Court further.

7. While there are contentions by both parents about the history of involvement each has had (or been allowed to have) in parenting [X], and being involved in decisions concerning his care and well-being, spending time and communicating with him, the orders sought, and the comments of Dr B, more than indicate the focus of both parents on [X]’s well-being and interests.

8. There is no suggestion that the Mother has failed to fulfil any parental obligation to [X].  The Mother contends that the Father, in times past, has not always put his son’s interests (not least health) above his own.

9. Both Ms T and Dr B stress, in different ways certainly, the importance to introduce any change to [X]’s life with significant preparation, and the need to ensure consistency in the result.  This is important in relation to the certainty that [X] needs (as do his parents) to adjust to him being away from his primary carer.

10. I do not understand there to be any issue regarding practical difficulty and expense in providing for [X]’s needs and/or him spending time with either parent.  Similarly, apart from what has been said or noted already (e.g. proper attention to [X]’s asthma medication and related matters), there are no issues raised about either parent being able to provide for [X]’s needs, particularly having regard to his special needs.[3]

    [3] The comments made here are intended to address the matters contemplated by s.60CC(3)(f), (g) & (i).

11. There are no issues of family violence.

12. Neither party seeks an order for equal time.  However, because of the equal shared parental responsibility order, pursuant to s.65DAA, the Court is required to have regard to whether the orders proposed satisfy the requirements of ‘substantial and significant’ time.  In this regard, s.65DAA(4) refers to the Court not being limited to the matters set out in subsection (3) in determining whether the orders would be substantial and significant.

13. In my view, [X]’s autism, and the observations and recommendations of the experts, warrant a certain refinement of the consideration of what constitutes ‘substantial and significant’ time between [X] and his Father.

Consideration & Resolution

1. The Court must ultimately make orders that are in [X]’s best interests, pursuant to s.60CA. In my view, the Court can reliably do that in the light of both reports of Ms T and Dr B. As already indicated, those reports stress, in different ways, the importance of the reliable and diligent preparation of [X] for time with Mr Sharpe. Equally, they highlight the importance of consistency in the time between Father and child, which must be encouraged and supported by the Mother. It is also very significant that Dr B confirms that [X] and his Father exhibited in the course of the assessment, and in the video material, a good and engaging relationship, and with [X] exhibiting no separation anxiety.

2. As for specific orders regarding [X]’s time with his Father, I note the following.

3. In the light of all the evidence of the parents [albeit untested], but particularly the evidence from both experts, and having regard to the orders sought by each parent, in my view, it is appropriate that orders be made for Mr Sharpe to have a session with Ms T to be apprised of her recommendations of, and the preparations for, his time with [X].  This should occur only after Ms T has been provided with a copy of

   
   

   Dr B’s report (in the event that she has not seen it already).  If she has not already done so, the Mother is to provide a copy of Dr B’s report to Ms T within 14 days of the date of these orders.  Orders to this effect should be made.

4. It is also appropriate, in my view, that the Mother provide a detailed outline (via email or some other written means – such as a communication book) to Mr Sharpe of [X]’s regime at home.  Such an order should be made.  It is very unfortunate that this information sharing has not occurred at a much earlier point in time: it should have.  This information from the Mother is to be provided to the Father within 14 days of the date of these orders.

5. The object of the preceding order is to provide relevant information to Mr Sharpe.  Just as he cannot (and should not) attempt to control how Ms Baxter’s household is conducted, likewise she cannot (and should not) attempt to control how Mr Sharpe’s household is conducted.  The most important thing is that Ms Baxter provides relevant information to Mr Sharpe about [X]’s routines.  All children – with or without particular needs – benefit from different environments (to varying degrees).  Complete uniformity in life-style across or between different households is unworkable and impractical.  Moreover, one should be slow to suggest, or even to imply, that children (including [X]) cannot adjust to new situations, and/or that different living circumstances cannot or do not provide opportunities for growth and stimulation.

6. Especially armed with advice from Ms T and Dr B, I have no doubt that both parents have [X]’s best interests at the forefront of their minds and that they will continue to use their best efforts to ensure that his needs (physical, emotional, psychological, etc), in every possible respect, will be respected and satisfied.

7. The orders indicated earlier in these reasons that can be made by consent will be so made.  Otherwise, in addition to those noted above regarding equal shared parental responsibility, and the Father speaking with Ms T and the Mother providing the Father with relevant information, the orders which the Court considers to be in [X]’s best interests are that: he continue to live with his Mother, and spend time with his Father in accordance with the orders sought by the Father, namely, each alternate weekend from after school on Friday until before school on Monday, and for a block of two weeks holidays each year.  Other time shall be as agreed between the parties.

8. Finally, I observe simply that the concern of the Mother relates to the Father having sufficient experience in dealing with [X] and his autism.  This begs the obvious question as to how the Father will ever get sufficient experience with his son if [X]’s time is not promoted, or the time between Father and son does not proceed.  It is certainly the Court’s intention that [X] spend regular (and consistent) time with his Father.

9. In my view, the orders sought by the Father, as amended in accordance with these reasons, are in [X]’s best interests.

10. I should also observe that it is long past the time when hostilities must cease, for [X]’s benefit, and the benefit of his parents.  Surely they have better things to do than contest over what is in [X]’s best interests, particularly in the light of the reports of Dr B and Ms T.  Somehow, the parents need to find a way to co-parent in a business-like way.  What is past, is past and cannot now be changed or undone.  They will remain [X]’s parents, what-ever litigious process is in train.  Much better to put their energies into co-operation than litigation, and get on with their busy lives.

11. Of course, time alone will tell if such simple advice is heeded.

I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Judge Neville

Associate: 

Date:         26^th February 2014