Sutherland & Bowron
[2022] FedCFamC1F 60
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sutherland & Bowron [2022] FedCFamC1F 60
File number(s): SYC 4855 of 2017 Judgment of: HENDERSON J Date of judgment: 16 February 2022 Catchwords: FAMILY LAW – PARENTING – Parental Responsibility – Where the mother seeks sole parental responsibility in circumstances where the child was diagnosed with autism spectrum disorder level 2 and where evidence is that the father has denied diagnosis up until the trial – Presumption rebutted due father’s attitude to diagnosis and lack of education in relation to his sons’ condition together with poor attitude to and behaviour towards the mother.
FAMILY LAW – PARENTING – Spend time with – Where the father sought overnight time with the child in circumstances where he was not able to currently adequately care for the needs of the child given his lack of understanding of the consequences of the child’s diagnosis – Overnight time ordered to commence in 2024 and time to increase on a gradual basis contingent on the father completing a parenting course and attending therapy sessions with the child.
FAMILY LAW – PARENTING – Spend time with – An application by the paternal grandparents for overnight time for one weekend every two months in circumstances where the child is to slowly progress his time with his father –Where finding that the grandmother was not accepting of the child’s diagnosis and its consequences - Where the child had never spent overnight time at the paternal grandparent’s house – Where the grandmother did not accept she had behaved poorly towards the mother in the presence of the child - Where the father and his parents have a good relationship and can see the child when he is with his father - Separate time with the paternal grandparents not an order in the child’s best interests – Application dismissed.Legislation: Family Law Act 1975 s60CC, 61DA Division: Division 1 First Instance Number of paragraphs: 104 Date of last submission/s: 2 February 2022 Date of hearing: 31 January 2022 – 2 February 2022 Place: Sydney Counsel for the Applicant: Mr Eardley Solicitor for the Applicant: PJW Lawyers Counsel for the First Respondent: Litigant in person Counsel for the Second Respondent: Litigant in person Counsel for the Third Respondent: Litigant in person Counsel for the Intervener: Ms Stolier Solicitor for the Intervener: Robertson Solicitors Pty Ltd Table of Corrections 3 May 2022 In paragraph 1 and 3 the references to “Mr C” have been corrected to show “Mr Bowron”. ORDERS
SYC 4855 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SUTHERLAND
Applicant
AND: MR BOWRON
First Respondent
MR B BOWRON
Second Respondent
MS BOWRON
Third Respondent
INDEPENDENT CHILDREN'S LAWYER
Intervener
ORDER MADE BY:
HENDERSON J
DATE OF ORDER:
16 FEBRUARY 2022
THE COURT ORDERS THAT:
Parental Responsibility
1.That Ms Sutherland, born 1992 (“the mother”), shall have sole parental responsibility for the care, welfare and development of the child X, born in 2016 (“the child”).
2.That prior to the mother making any major decision in relation to the child’s medical treatment and education, the mother is to notify Mr Bowron, born 1974 (“the father”) of her decision in writing.
3.That the mother is to do all acts and things to authorise the following;
(a)for the father to receive school reports, school photographs and any other notices from the school to which parents ordinarily receive;
(b)for the father to speak with the child’s teachers and/or Principal about the child’s progress at school and about the child’s education generally;
(c)for the father to receive medical information about the child to which parents ordinarily receive;
(d)for the father to speak with any medical professionals involved with the child about the child’s health; and
(e)for the father to be included on the child’s National Disability Insurance Scheme (NDIS) program to enable the father to speak to the providers of services to his son.
Live With
4.That the child live with the mother.
Time with the father
Stage One
5.That the child shall spend time with the father as agreed between the parents in writing and failing agreement, as follows:
(a)each Sunday from 9.00 am to 4.00 pm.
Stage Two
6.That overnight time for the child with the father commencing is contingent upon the following:
(a)the father attending weekly consecutive sessions with the child and his therapist at the D Centre for a period of no less than six months and completion of any course as recommended by the D Centre;
(b)the father completing a parenting course in respect of autism with an organisation such as, L Group or any other authorised course provider and providing proof of such completion to the mother;
(c)that the child is sleeping independently in his own bed; and
(d)unless agreed overnight time is not to commence prior to the first term in 2024.
7.Overnight time with the father to occur as agreed between the parents, and failing agreement as follows:
(a)each Sunday from 9.00 am until 4.00 pm; and
(b)on the third weekend of each month from 12.00 pm Saturday until 4.00 pm on Sunday.
(c)All overnight time to take place at the home of the father and with either or both of his paternal grandparents to be present for the first six months of overnight time.
(d)Thereafter overnight time may take place in the absence of the paternal grandparents.
Stage Three
8.After Orders 7(a)-(c) and Order 8(c) have been complied with, and no earlier than the commencement of Term One in 2024, the father shall spend time as agreed between the parents, and failing agreement as follows:
(a)
On the first and third weekend of each month from 12.00 pm Saturday until
5.00 pm Sunday.
Stage Four
9.At the commencement of Term One in 2025 the father shall spend time as agreed between the parents, and failing agreement as follows:
(a)
On the first and third weekend of each month from after school Friday until
5.00 pm Sunday with the child to be collected by the father from school when the child is at school, and if not at school from the seats at the front of Woolworths E Town.
(b)At the commencement of Term Two in the 2025 school year on the first and third weekend of each month from after school on Friday until 6.00 pm Sunday with the child to be returned to the mother fed, bathed and ready for bed.
Stage Six
10.Any further progression of time including school holiday time, is as agreed between the parents. Should there be no agreement, the parents agree to attend upon an agreed Family Mediator in the first instance.
Communication with the father
11.The father is to communicate with the child by Facetime/Skype, or such medium as agreed between the parents at times agreed and failing agreement as follows:
(a)on Monday the father shall contact the child between 4.30 pm and 4.45 pm and the father will speak to the child as long as the child is comfortable in so doing; and
(b)on Friday the mother shall contact the father between 4.30 pm and 4.45 pm, and permit and encourage the child to speak to the father, and the father will speak to the child as long as the child is comfortable in so doing; or
(c)on any other such day or time as agreed between the parties.
Special Occasions
12.That the father shall spend time with the child at times as agreed between the parents and failing agreement as follows:
(a)from 9.00 am to 5.00 pm on Father’s Day extending to 6.00 pm in the second term of the 2025 school year, with the father to return the child to the mother fed, bathed and ready for bed; and
(b)from 4.00 pm to 6.00 pm on the child’s birthday if the father is not already spending time with the child.
13.That the mother shall spend time with the child if he is not otherwise living with her as follows:
(a)From 9.00 am to the commencement of school on Mother’s Day.
14.Both parents to spend time with the child as follows:
(a)From 3.00 pm to 6.00 pm on their respective birthdays, with the father to return the child to the mother fed, bathed and ready for bed if the child is not living with him at that time.
15.That the father shall spend time with the child at Christmas defined as Christmas Eve and Christmas Day at times as agreed between the parents and failing agreement as follows:
(a)From 12.00 pm to 6.00 pm Christmas day.
Time with the second and third respondents
16.That the 2nd and 3rd Respondents Application for Final Order filed 26 February 2019 seeking time with the child is dismissed.
Communication between the parents about the child
17.That the parents shall communicate by text message in relation to matters pertaining to the child.
18.Each party shall notify the other as soon as possible, and in any event within four hours of any hospitalisation of, or serious injury or illness suffered by the child whilst in that party’s care.
19.The parents shall keep each other informed of their respective addresses and telephone numbers and any change to the same is to be advised to the other party within seven days of any such change.
Obligations of the father
20.That the father attend upon the D Centre for weekly consecutive therapy sessions with the child for a period of no less than six months.
21.On completion of the father’s consecutive attendance at the D Centre the father shall request written confirmation from the D Centre of his attendance and provide a copy of that notification to the mother forthwith.
22.That the father is to implement any strategies as recommended by the D Centre to manage the child’s autism and special needs, including but not limited to speech therapy, occupational therapy and home based programmes.
23.That within seven days the father shall enrol in a Specific Parenting Course such as a course offered by L Group for parenting children with autism, or such course as recommended by the D Centre.
Obligations of the second and third respondents
24.That within seven days the 2nd and 3rd respondents shall enrol in a Specific Parenting Course for parenting children with autism, such as L Group, or as recommended by the D Centre.
25.That the 2nd and 3rd respondents shall provide to the father and the mother a copy of the Certificate of completion of the Parenting Programme specific for parenting children with autism with such course to be completed as soon as practicable.
Obligations of the parents
26.That within seven days of date of these orders the mother is to create a physical communication book which is to travel with the child, with the communication book to be returned to the mother at the conclusion of the child’s time with the father. The communication book to include details of relevance to the child only, including but not limited to his treatment sessions, medication or school homework requirements in respectful and polite language.
27.The mother shall keep the father advised of the child’s progress of sleeping in his own bed in the communication book.
Restraints and Injunctions
28.That the father is not to consume alcohol 12 hours prior to the commencement of time with the child and whilst spending time with the child.
29.Time between the child and the father shall be suspended should the father breach Order 28.
30.Should the father breach Order 28 herein and either the 2nd or 3rd respondents are present, they shall contact the mother and make arrangements for the mother to collect the child from the father, or deliver the child into the mother’s care.
31.That neither the mother or father shall record or take photos of each other at changeover or cause any third party to record or take photos of the mother and/or the father, and/or the child at change over.
32.That the mother, the father and 2nd and 3rd respondents are hereby injuncted and restrained from denigrating or causing any third party to denigrate the mother, the father and 2nd and 3rd respondents in the presence of or hearing of the child.
Changeover
33.Changeover shall take place at a location as agreed in writing between the parents and failing agreement at the seating in front of Woolworths Supermarket at E Town or at school.
34.The paternal grandmother shall not be present at changeovers.
THE COURT NOTES:
A.The parents agree that in the event that there is a no agreement with regard to the progress of the child’s time with the father after 2025 then they will attend mediation for the purpose of attempting to resolve the matter in the first instance without the need for further litigation.
B.That the mother and father may attend the child’s therapy sessions together.
C.That the father promised the Court he will not consume alcohol within 12 hours of the commencement of his time with the child or whilst the child is in his care.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sutherland & Bowron has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
This is an application by the mother, Ms Sutherland, born in 1992 (“the mother”), for parenting orders in respect of the parents’ child, X, born in 2016 (“the child”). The first respondent is, Mr Bowron, born in 1974 (“the father”), and the second and third respondents are the paternal grandparents, Ms Bowron (“the paternal grandmother”) and Mr B Bowron (“the paternal grandfather”). The child currently lives with his mother and spends Sundays with his father.
The child was diagnosed in June 2019 with autism spectrum disorder level 2, and a further report written in 2021 has confirmed that diagnosis. Both of those reports were in evidence before me. The 2021 report by Ms F (“Ms F”) was marked Independent Children’s Lawyer (“ICL”) Exhibit 2, and the 2019 report by Ms F, was marked ICL Exhibit 3. There is also a report from paediatrician Dr G (“Dr G”), marked ICL Exhibit 4, which confirms this diagnosis.
Mr Eardley of counsel acted for the mother; the father, Mr Bowron, represented himself; the paternal grandparents, Mr B Bowron and Ms Bowron, represented themselves; and the ICL who represented the child was represented by Ms Stolier of counsel.
The material I read for the parties were as follows.
For the father
(a)Affidavit filed 19 January 2022;
(b)Affidavit of the paternal grandparents filed 18 January 2022; and
(c)Affidavit of his partner, Ms H, filed 13 January 2022.
For the mother
(a)Affidavit filed 10 December 2021;
(b)Affidavit of Ms F filed 1 December 2021, annexing the 2021 report from the D Centre (“D Centre”);
(c)2019 report from the D Centre; and
(d)Counsel’s case outline
For the ICL
(a)Exhibits 1-5
(b)Counsel’s case outline; and
(c)Family report of Ms J.
In the father’s case, the father, Ms H and the paternal grandparents were cross-examined.
The paternal grandparents provided support for their son’s application as well as seeking their own orders for separate time with the child.
The mother, Ms F and Ms J were also cross-examined.
SHORT CHRONOLOGY
The father was born in 1974 and the mother in 1992.
In 2001, the father injured his shoulder in an accident, which was aggravated by lifting at work, and he is now permanently disabled from his work as a tradesperson.
In 2011, the parties commenced a relationship. It was an off-and-on relationship, and not happy.
The parents moved in together in 2015.
The father had surgery to his shoulder in 2016, and has been out of work since that time, living off his superannuation and other payments.
In 2016, the father, the mother and W, the father’s son from a previous relationship, went on a camping trip. The father struck his son, W, and since that time he has not seen him. That matter is subject to proceedings in the City N registry of this Court.
During this time the mother describes various incidents of the father coming home drunk, abusing her, treating her poorly, as well as behaving poorly towards W.
In 2016 X is born.
One month after X is born, the mother moved out of the matrimonial home.
In 2016 the father was convicted of and dealt with for driving offences.
In 2016 the parents separated on a final basis.
In January 2018 W’s mother reports to the Department of Family and Community Services (“FACS”), as it then was, and the police that the father had assaulted W by clipping him under his ear.
In 2018 the child’s half-sister, Y, was born.
Changeovers were fraught for the child. The mother had difficulty having the child leave her car because he was so distressed at the behaviour of adults around him. The paternal grandparents were involved in changeovers and this did not assist.
In 2019 by court order the paternal grandmother was prohibited from attending changeovers.
In January 2019 – March 2019 the mother became concerned regarding the father’s behaviour towards the child given his behavioural difficulties, and withheld the child for a period.
In January 2020 the father met his partner, Ms H, and it would appear from that time his behaviour has settled and he is much happier. Unfortunately Ms H has adopted the father and paternal grandmothers’ negative view of the mother believing entirely the father’s version of events despite her positive impact upon the father’s behaviour.
In 2021 the child’s half-brother, Z is born.
In April 2021 the father and Ms H moved in together.
In July 2021, the mother invited the father to attend a paediatric appointment.
THE EVIDENCE
I accept the mother’s evidence that the father was rude and talked over the top of her at the appointment in July 2021. The father has denied the diagnosis Ms F first made in 2019 that his son suffered from autism. The paternal grandmother still does not accept this clear and compelling diagnosis despite saying she did. The father believed the child’s behaviour was made up by the mother, or to use his own mother’s words, “because of her bipolar disorder, she exaggerates the situation” (paragraph 20 of the paternal grandmother’s trial affidavit).
It is clear on the evidence as follows that the paternal grandparents and father have resisted accepting a diagnosis that the child has autism, and have refused to accept the behaviours the mother has described in her affidavits, and to them, of the child’s behaviour in her care, even in circumstances where they had read the reports of the D Centre dated 2019 and 2021, which were comprehensive, thorough and clear on their face.
The father and paternal grandmother, although stating in Court that they accepted the child had autism, did not accept this diagnosis in their filed material and this ignorant position of the father and his mother was confirmed, as follows.
For the father, he said at paragraph 25 of his affidavit:
I am not medically trained, but if [the child] is autistic to any degree then it does not seem to me to be severe or provide any reason why I should not spend weekends and holidays with him.
He denied in his affidavit that the child was upset by loud noises, and, in cross-examination, although stating that he accepted his son has autism, was clear that none of the behaviours the mother describes and which are contained in the reports of the child namely, fidgeting; difficulty with expressing himself emotionally in language; a stutter; and difficulty in focusing or concentrating on a task, were ever exhibited by the child when with him.
The paternal grandmother’s affidavit of 18 January 2022, at paragraph 14:
At paragraphs 65 to 71, the [mother] refers to [the child’s] “autism”. I am not medically trained, but I have raised two children and mixed widely in the general community. From my own observations, I do not notice anything especially abnormal about [the child], and I have observed him to become more self-confident in recent years.
(Emphasis in original)
The paternal grandmother denied all the allegations and all the issues the mother raised in her material which she said caused the child some problems, such as loud noises; his father cutting his hair; that he has difficulty socialising with other children; can have meltdowns, exhibits poor concentration, and can be difficult to contain and control; and has particular difficulty expressing himself. The opinion of the father and his mother was based on 4 hours of time once a week, when he lives with his mother every other day and hour of the week.
At paragraph 20, the paternal grandmother says:
I do not believe that the [mother’s] bipolar condition is completely managed. She has a tendency to dramatise situations which can produce negative reactions from others. For me, at least, it makes it difficult to deal comfortably with her.
The paternal grandmother is sorely mistaken in her description of the mother. I find on the evidence that it has been the paternal grandmother who has caused significant difficulty in the parents’ relationship, and this is but one reason why she was banned from attending changeovers with the child and the father.
In 2019, there was an incident at the local shopping centre, when the child had been dropped off to spend time with his father. The paternal grandmother says at paragraph 35 of her affidavit:
…at 9 o’clock on Sunday morning, [the mother] had dropped off [the child] to [the father] near the skate park at E Town, and Mr B Bowron and I were also there in our own vehicle. [The father], with [the child], drove about two kilometres to the underground carpark at the Woolworths and we followed. We were there. For some reason, [the mother] also followed us in her car and parked in the underground car park.
It is alleged the mother said something unpleasant. The paternal grandmother and the father went to Woolworths to purchase some items. They were going through the check-out, when the paternal grandmother says:
[the mother approached] without invitation and stood between me with [the father] and [the child] who was in the trolley, aged three at this stage – and said to [the child], “Hi buddy. How are you going?” at [36].
The paternal grandmother’s immediate reaction to this completely innocuous running into the child at the shopping centre was to say:
“This is our time with [the child]”. “Go away.” I repeated the request several times for her to leave. I did not raise my voice. She did not leave. I placed my hand on her arm and said firmly, “Go away!” at [36].
The child witnessed this event between his mother and grandmother. The paternal grandmother caused that conflict, not the mother, and the paternal grandmother would do well to reflect upon her negative, dismissive and pejorative attitude to the mother.
The mother said in her affidavit that the child had told her at paragraph 48, “I rub my penis, because Daddy tickles it”, that she asked him again and he said at paragraph 48, “Daddy touches it, and it tickles”. For her own reasons the mother determined she needed to report that comment to FACS despite not holding genuine concerns for the child’s safety as evidenced at paragraph 48 of her trial affidavit where the mother said, “I don’t believe that [the father] has interfered with [the child] in any inappropriate sexual way…”.
Yet the father and his mother both took that to mean that the mother had accused him of sexually abusing the child when no such allegation had ever been made by her against the father. Such is their mistrust and distrust of the mother that they cannot even read her affidavit correctly. Ms H also fell into that trap.
Following multiple incidents, changeover occurred at the police station. The police are not competent to assist at changeovers. The father denied he became aggressive when the child refused to come with him. I reject that evidence. He would have been apoplectic, believing that the mother was in some way influencing the child, because he did not accept that his child had autism.
The reality is the child suffers from autism, but is progressing extremely well in his mother’s care. It may well be correct that his grandmother and father do not observe his behaviours when he is with them for some hours on a Sunday, no doubt because his mother has parented him to such a high degree, and has accessed every possible service that she could access to assist her son’s development and assist her with dealing with the neurological deficits of autism. That he does function well with his grandmother and father at his father’s home, when he is having fun and is surrounded by people who love and care for him is perhaps understandable in light of these facts.
Nowhere in the father’s or paternal grandmother’s affidavit was there any recognition that the mother is an exceptional parent, who, with limited assistance from the father, has parented the child to a high degree, and that due to her capacity to find and maintain the correct services for the child, he is progressing as well as he is. Their affidavits contained nothing but complaints of the mother, as did Ms H’s affidavit.
Faced with the two reports that were marked ICL’s Exhibit 2 and 3, and the evidence and comments made at the hearing by Ms J and Ms F, the father now accepts that the child has autism, and that he needs to educate himself about how to deal with this issue for the child. I am not as confident that the paternal grandmother has accepted this reality although she said she has.
The facts are that the mother has been taking the child to the D Centre for over two years now, weekly, for his 30-minute session with an occupational therapist, and after each session, the therapist spends about 10 minutes with the mother. This is how the mother has learned the techniques necessary to assist her son and understand what the therapist was doing with the child. This includes how to assist him with sounds; how to deal with his behaviours when he becomes upset; how to distract him; the importance of a calm, quiet, routine-based life and care, behaviours to soothe him etc. The mother’s evidence in this regard was very impressive.
This has resulted in almost 130 visits at the clinic which has given her a sound, clear, competent understanding of her son’s needs, which she has shared with her housemate who co-owns the property that she shares with her other children Y and Z and with their father, Mr K, who she said is a good support to her. Each of these men have taken on board what the mother has said about the child’s particular needs and how to deal with the child and they have followed her lead.
The father made a point in cross-examination that these people live with the child in the house, yet have not had to go to courses or educate themselves. As the family consultant Ms J said, they live with the mother and/or have taken their cues from the mother, that is, they have listened to what the mother has told them, unlike the father.
The father, his mother and, to a lesser extent, the paternal grandfather have resisted what the mother has told them, and sought to lay blame at the mother’s feet for any behaviour of the child or her decisions at times to not let the child see the father, resulting in the father’s time having been reduced to one day a fortnight, when it had been several days a fortnight prior to 2019.
The big-ticket item in this matter was the lack of education and understanding of both the father and his parents of the needs of the child: how to calm and soothe him; how to assist him; and their lack of respect for the mother or acknowledgement of the excellent job she has done on behalf of the child.
The father asked Ms J some excellent questions about why he cannot commence to overnight time as soon as possible, given he was spending day time with him three times a fortnight previously. Ms J did not receive the October 2019 report of Ms F at the time she prepared her report but had read both reports by the time of her cross examination. Ms J’s evidence was that now that the child has received a diagnosis of autism we must start from where he is now. He has to be dealt with sensitively. Any changes must be incremental. That given he is attending kindergarten this year for the first time, he must settle into school before there are any changes to his usual routine, which have been in place since 2019.
Secondly, Ms J was clear, the father and paternal grandparents need to educate themselves on the needs of this child, how to soothe him, and to recognise the signs when he is becoming agitated.
The father, to his credit, has agreed he will attend for six months of weekly sessions at the D Centre with the mother to educate himself as to the needs of his child which is excellent given this is the face to face, hands on education he needs to know from the very people who are treating his son.
The paternal grandparents and the father have also agreed to enrol in and attend a parenting course with L Group which is designed specifically for parents with autistic children, and that can be done via webinar.
These are all positives and will be of great assistance to the child in his development and to his mother in managing him. However, if the father and paternal grandparents continue to not accept what the mother says is the behaviour of the child in her care; to not accept what the experts say; and not take heed of what the experts tell them, this will cause damage to the child, and therefore, his all-important relationship with his father.
The mother wants the child to have a relationship with the father, but she wants to ensure her son is safe and that he is in an environment where his needs are protected and this is the paramount issue in this matter, his needs and safety.
The second concern raised by the mother was the father’s problematic alcohol consumption. He has been charged with two driving under the influence charges in the past. He clearly drinks alcohol, a common occurrence in our society, and this has been of real concern to the mother, whose affidavit is littered with very poor behaviour and outcomes related to alcohol abuse.
There is significant support for the fact that the father did drink alcohol to excess in his own mother’s material, where she says with his current relationship with his partner Ms H, he is in a much better place. From that I take it he is not drinking too excess to ease the pain of a poor relationship, for there is no doubt the mother and the father had a toxic and difficult relationship.
Thus, I accept the father’s drinking has lessened. However, the mother is justified in being concerned that the father would drink around the child or be affected by alcohol around the child who needs constant attention, as that was her experience of him.
The mother said she would be more comfortable if for the first periods of time the child had overnight with his father in the future, one of his grandparents were present the fathers’ home. The paternal grandparents agreed that they would do that for six months but any longer would be too much of a burden.
That is a fair assessment by the paternal grandparents and a fair position to take, for the child will not have any increase in time to his current one day a week until such time as the father has completed his six months at the D Centre and has completed the L Group autism parenting program and is sleeping independently.
I have formed the view that it is not in the child’s best interest that he have separate time with his grandparents for the following.
It is an imperative his time with his father increases to provide him with the benefits of a meaningful relationship with his father. This is the priority and the child can only sustain small incremental changes to his usual routine as Ms J opined. His developing relationship with his father is the priority at this early stage and the grandparents will have time with their grandson as is determined by their son when the child is in his father’s care.
Given the child’s autism, it is paramount that there is minimum disruption to his usual routine, and that his needs are in focus as the paramount consideration and not the needs of the adults in his life.
Even after hearing the evidence the paternal grandparents maintained their position that it was best for the child to spend one weekend with them every two months at their home from Friday to Sunday and one week in the Christmas holidays. Their evidence was he has never spent overnight time with them at all and has hardly been to their home.
To maintain this application in light of these facts, Ms J’s evidence and knowledge of the particular disabilities and needs of their grandson was astonishing, and indicates a complete lack of understanding of how their grandson would react to such a fundamental change in his usual routine.
The mother and ICL agreed on all aspects of this matter and the ICL’s proposed minute of order was marked ICL Exhibit 5.
The father sought that once he had finished his six months of attending the D Centre and his L Group course, he would immediately have one overnight period of time a fortnight with the child, going to two nights into the future, one week in the school holidays and the like.
The medical evidence, as well as Ms J’s oral testimony which differed greatly from her written report was seminal to my decision. Ms J’s report was written from a position that the mother may have been overprotective and not encouraging of the child’s relationship with the father and could have been read as accepting the father’s complaints rather than the mother’s concerns.
At the time of the report Ms J did not know that the child had been diagnosed with autism, although his mother had told her that this was what was happening and that he was in the process of being assessed, and a report would be released. Ms J did not have the benefit of reading the 2019 report or the 2021 report and when she did, her evidence became more accepting of the mother’s concerns and not the father’s complaints.
Expert Evidence
The expert evidence is what I must be guided by in making the orders that are in the child’s best interests and that evidence is as follows.
At page 19 of Ms F’s 2021 report, the conclusion on the child’s diagnosis is this:
Based on all the collated assessment information and behavioural observations, the child was assessed to fulfil the Diagnostic and Statistical Manual for mental health Fifth Edition (DSM – 5) criteria for Austism Spectrum, Disorder (Social Communication Level 2 – requiring substantial support; Restricted Repetitive Behaviour Level 2 – requiring substantial support)
(as per original)
…
Autism Spectrum Disorder (ASD) is characterised by persistent deficits in social communication and interaction across multiple contexts...
…
…the intensity of intervention provided to children who have been diagnosed with Autism Spectrum Disorder is crucial in promoting a positive outcome.
The mother has endeavoured and has succeeded in doing this at a very high level.
The mother is also concerned that the child still does not sleep alone, and she does not want him having overnight time in anyone’s home until such time as he is able to sleep on his own, independently. He cannot sleep independently at his maternal grandmother’s home, a woman he is very familiar with, and who is a support to the mother.
The child’s preschool teacher was interviewed, as was the mother and father, for the 2021 report, and Ms F indicated that the child displays greater internalising behaviour, peer socialisation and social-emotional reciprocity difficulties than compared to his peers. This child struggles, and yet his father and paternal grandmother said in their affidavit he did not.
The child rarely engages in verbal communication to express experienced emotions, and his caregivers have to rely upon his body language and behaviour. He plays independently, rather than with children of his own age, and he has difficulty initiating a social response, and shifts topic of conversations to things he likes. He is very interested in dinosaurs and trains, and highly knowledgeable about all of those aspects. He has a mild difficulty in his speech, and he is waiting for speech therapy.
The 2019 report of Ms F was similar. The child was assessed to fulfil the diagnostic criteria for autism spectrum level 2 and the recommendation of that report was for the child to engage in occupational therapy, and psychology intervention, which the mother has been doing over the past two years. Ms F also recommended speech therapy but the child is still on a waiting list.
The child will always have autism level 2, but he is progressing well and is commencing kindergarten this year. His school is aware of these issues. Ms J was clear that he needs time to settle down and adjust to a very different regime of attending school daily before any changes of time with his father commence. That he may need at least two terms to settle into the routine of school.
To his credit, the father completed the Triple P parenting course and the Post Separation Parenting Program by M Counsellors as suggested in Ms J’s report in 2019. Ms J had indicated in her report that if the father completed parenting courses, that he could progress to overnight time, and in cross-examination the father properly asked Ms J why that could not now happen. As Ms J said she was not at that time aware the child had been diagnosed with autism, and now that she has become aware, those recommendations are no longer appropriate. That we must start from where we are which is that the child is only spending day time with his father and neither his father or his grandparents have informed themselves or educated themselves on what the child’s condition means and how to best deal with it because they denied it for so long.
I have no doubt the father was drinking to excess on a date prior to separation up to a time after he met Ms H. I also accept that since that time his alcohol consumption has reduced, and I accept his evidence that he does not drink while the child is in his care and will not drink while he is in his care. He has agreed not to do so for 12 hours prior to the child coming into his care and whilst he is in his care. I accept this is a commitment he takes seriously and will adhere to for the benefit of his son.
CONCLUSION
The parties agreed to use a communication book, and I will make those orders, and many aspects of this matter was agreed, save for the time with the father and the child, time with the paternal grandparents and parental responsibility.
This is a matter involving a child with special needs, and there is a significant risk to him if orders are made that change his routine too swiftly or too quickly, or place him in a precarious position where he feels unsafe. The child must feel safe at all times.
His mother has provided him with a home of safety and security, where his needs are at the forefront. His father has yet to come on board to be able to do the same, although I accept his father loves him, and the child has a good time with his father, he being the only child the father spends time with as he does not see W.
There have been appalling scenes between the adults at changeover, which is destructive for a child who is not on the autism spectrum, let alone a child who is on the autism spectrum. Neither the paternal grandmother nor the father could see their role in this poor outcome for the child, and this regressed the child’s capacity to be separated from his mother and spend time with them. The father and paternal grandmother need to rebuild that relationship, and they can only do so by education, which they tell me they will do. They also need to re-build a relationship of trust with the mother and the first step was taken when they both acknowledged in evidence how well the mother was caring for the child and his special needs.
Thus before the child progresses to overnight time with his father, which I accept, will be enriching and fulfilling for him, the father must receive and take on board the education and knowledge he needs.
Secondly it is an imperative that the child is sleeping independently. That was the position that the mother took, and that which the ICL put forward, and it is appropriate.
THE LAW
Going to the factors under section 61DA and 60CC of the Family Law Act (“the Act”).
I will rebut the presumption of equal shared parental responsibility. The father’s attitude to the mother’s heroic efforts on behalf of her son have been nothing short of disgraceful, aided and abetted by his own mother. The father has not run interference on what the mother has put in place however he has been neglectful in informing himself of his son’s needs, has not been involved in what is and is not appropriate for his son, and when he has been involved, he has been disruptive, such as the paediatric appointment in 2021.
The father did not take on board the 2019 report of the D Centre or the 2021 report or seek to inform himself in any way of his son’s condition. The father’s evidence was that he had bought a book on autism and when questioned by counsel he admitted that he had only skimmed through it. The fathers’ belief was that the mother was in some way using her observations of the child to control him and to stop him spending time with his son, when the reverse is the truth.
It is in the child’s best interest that equal shared parental responsibility be rebutted given the attitude of the father to the child’s condition and that he is at the first, most preliminary stages of educating himself. To do otherwise may limit the child’s progress and needs being met as they have been in the past by the mother.
The father has demonstrated a limited capacity to put the needs of the child before his own needs, and this limitation was clear in his submissions that he did not understand why he could not have the orders he sought immediately, namely overnight time after completion of the parenting courses from L Group. The pursuit of these order demonstrates little understanding that his son needs a slow, structured increase in any time if he is to spend away from his mother.
The mother has always made decisions that are best for the child. She has always put the child’s needs before her own and will continue to do so. I will only require the mother to notify the father of decisions she intends to make in relation to his long-term care, welfare and development, but that is as far as I will take that issue.
In relation to considerations under s 60CC of the Act, the child does benefit from a meaningful relationship with each of his parents. There is no doubt his primary and most closely emotionally attached relationship is with his mother, who has parented him to a high level. He has a good relationship with his father although it is limited. His father has little understanding of his child’s needs or his disability, and prior to this hearing, did not really accept that his son had this disability at all. In those circumstances, the relationship he has with his son is not as meaningful as it will be once he does his education and takes on board what his son needs are to progress to an adult.
The child has been subjected to poor behaviour in both parents’ households. I accept the mother has screamed at times and yelled at changeover, as has the father so done. I accept the father drank alcohol to excess in the relationship when he had the child in his care. I do not see that this is now such a concerning problem in 2022, as it was in 2016 to 2020. I accept that his current partner, Ms H may well be the catalyst for that improvement in the father’s behaviour.
The child is too young to express a wish. He would not have any idea about what it meant to spend overnight time with his father. Given that he does not sleep independently and still sleeps with his mother, it was naïve at best for the father and the paternal grandmother to suggest that this child can instantly have overnight time after they have done their education. An important factor for me in this matter is the child’s limited capacity to cope with change. I anticipate this will be one of the matters that the father and his parents will come to realise is crucial as they complete their planned education on autism and its consequences. At present they do not exhibit any understanding of this extremely important factor.
The mother has taken her responsibility of parenthood extremely seriously. The father has not, believing instead that the mother’s actions, conduct and description of their son had something to do with her trying to stop him having a relationship with the child, when that is simply incorrect on the clear evidence.
The father does not financially support the child, given he does not work, and it will be difficult for him until he can finish retraining his qualifications at TAFE and obtain a job to pay proper child support. The mother supports the child on her income, a small amount of child support, and he is also supported under the National Disability Insurance Scheme.
The parental relationship is poor. They do not trust each other. They do not respect each other. The mother has some justification for her position, given what I regard as the father’s abuse of alcohol in the relationship and post the relationship, and his complete dismissal of the mother’s concerns about the child’s behaviour and presentation. Even before he had his diagnosis, the mother was on the right pathway, and yet the father and paternal grandmother dismissed her valid concerns.
In light of these facts and findings I will make the orders that the mother and the ICL put forward. They are the only orders that can be made to ensure that in the future the child has a meaningful and fulfilling relationship with his father.
It is paramount at this stage that we begin the slow process of the father building up his knowledge of his son’s condition, and thereby being able to expand the time the child can spend with him, such that we reach a stage where he can have regular full weekends and some time in school holidays with his father.
This will be a slow process, and it must be handled, as Ms J said, sensitively, slowly, and with great consideration and care from the father’s point of view. Given his lack of education, Ms J’s evidence was that the father would not have these skills at this time, and that concern is compounded by his poor treatment of W, which has had repercussions in that he spends no time with him.
The stages put forward by the ICL and agreed to by the mother in ICL’s Exhibit 5 are appropriate, child-focused, incremental, and provide at all stages appropriate support for the child. The mother will well know how the child is coping with overnight time without the presence of either of the paternal grandparents, when it is likely to be introduced in 2024, and will well know whether the father has breached his undertaking and the order made by the Court not to consume alcohol.
I will make orders consistent with the ICL’S minute of order as orders in the child’s best interests.
I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Henderson. Associate:
Dated: 16 February 2022
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