Talisman & Roy

[2008] FamCA 1188

FAMILY COURT OF AUSTRALIA

TALISMAN & ROY

[2008] FamCA 1188

FAMILY LAW – CHILDREN – With whom children should live – older child suffers from autism – possibility the younger child may also – extensive expert evidence provided - father has refused to accept diagnosis of autism or acknowledge the need to test younger child – father has refused to accept the implications for older child’s care, living arrangements and times he could spend with the father – maintaining a meaningful relationship between the father and the children appears to be an impossibility

FAMILY LAW – PRACTICE AND PROCEDURE – at conclusion of expert’s evidence, the father indicated he wished to take no further part in proceedings – unable to locate the father – final orders made in father’s absence

Family Law Act 1975 (Cth)

APPLICANT: Mr Talisman

RESPONDENT: Ms Roy

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

FILE NUMBER: ADF 534 of 2006

DATE DELIVERED: 19 December 2008

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

EX TEMPORE JUDGMENT OF: BURR J

HEARING DATE: 7, 8, 9, 10 & 11 July, 17, 18 & 19 December 2008

REPRESENTATION

FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms Cocks

SOLICITOR FOR THE RESPONDENT: Martin, Irwin & Richards

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mrs West

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

Orders

UPON NOTING that during the trial of these proceedings the father appeared in person but that there was no appearance by the father when the Orders were made this day

AND UPON FURTHER NOTING that the mother is living in D with the children of the relationship C born … May 2004 and M born … July 2005

IT IS ORDERED THAT:-

1. All previous current Orders be and the same are hereby discharged.

2. C and M live with the mother.

3. The mother have sole parental responsibility for the said children.

4. The father spend time with the said children at a frequency no greater than on two [2] consecutive days per fortnight at the L Children’s Contact Service (“CCS”) such time to be:-

   (a)supervised with the Centre’s Director to determine whether it shall be low or high level supervision; and

   (b)arranged by the father and notified to the mother at least fourteen [14] days prior to the first period.

5. The parties be restrained and an injunction is hereby granted restraining each of them from:-

   (a)removing the said children or either of them;

   (b)causing or allowing any other person to remove the said children or either of them

   from the Commonwealth of Australia SAVE AND EXCEPT that the mother be at liberty to take the said children to New Zealand from time to time for periods not exceeding three [3] weeks in duration.

6. The Australian Federal Police are requested to place the names of the said children C and M on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the said children’s names on the Watch List until further order of this Court.

7. The mother’s solicitor do provide a copy of this Order to the Australian Federal Police as soon as a sealed copy becomes available from this Court.

8. If the mother proposes to take the said children to New Zealand, she do provide the following information to the father at his last known address at least three [3] weeks prior to the children’s departure date (or in the event that the said children are travelling as the result of an emergency, then as soon as practicable after the travel arrangements have been made):-

   (a)the dates of the said children’s departure and return;

   (b)an itinerary setting out the cities and towns to which the said children will be travelling, together with the dates the said children will be spending in each of those places;

   (c)the address and telephone number(s) of all accommodation in which the said children will be staying; and

   (d)a copy of the return tickets.

9. The mother be permitted to allow the child C to be called by the name … and the child M to be called by the name … PROVIDED THAT the mother is restrained and an injunction is hereby granted restraining the mother from changing the registered birth names of the said children.

10. Leave be granted for the issue of a passport in the name of and for the said child C and in the name of and for the said child M and that the mother be permitted to leave the Commonwealth of Australia to travel to New Zealand with the said children from time to time in accordance with paragraph 5 hereof.

11. The requirement for the permission of the father to the issue of the said passports be dispensed with.

12. The Passports Office of the Department of Foreign Affairs and Trade to issue passports in the names of the said children C and M upon the filing of the appropriate completed application form exhibiting the permission of the mother.

13. Subject to the requirements of the Passports Office of the Department of Foreign Affairs and Trade, a Registrar of this Court be appointed to execute all such documents as are necessary for the issue of the said passports in lieu of the said father.

14. The appointment of the Independent Children’s Lawyer be discharged.

15. All applications and responses be otherwise dismissed and removed from the pending list.

AND IT IS FURTHER ORDERED, IN CHAMBERS, THAT:-

1. A copy of these Reasons be released through the Independent Children’s Lawyer to Professor T.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 534  of 2006

MR TALISMAN

Applicant

And

MS ROY

Respondent

AND

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. Proceedings in this matter were issued by the father almost three years ago on 18 April 2006.  Because of the particular and complex issues that emerged in these proceedings, quite a deal of interlocutory activity was required prior to the matter being finally listed for trial before me commencing on 7 July 2008.  The matter then continued before me pursuant to its original estimate of five days up to and including 11 July 2008.  By that time though the matter was far from concluded and in fact not even the father’s case had been concluded by that time.  Accordingly I adjourned the matter for conclusion before me allowing five days from 17 December 2008.

2. The whole of the first day of resumption on 17 December 2008 was occupied by the continuing evidence of the father.  On 18 December 2008 some very significant evidence was taken from Professor T who I accept is one of, if not the, leading expert in the field of autism in children in Australia.  At the conclusion of Professor T’s evidence the father was upset and indicated that he wished to take no further part in the proceedings.  We have delayed the conclusion of the proceedings today and have endeavoured to locate the father but without success.  In my view it is appropriate to make final orders resolving the matter today and in doing so, I adopt the reasons for making final orders adumbrated by Ms Cocks for the mother and Ms West for the Independent Children’s Lawyer.

3. I have been provided with a comprehensive Minute of Order by the Independent Children’s Lawyer pursuant to a request I made at the conclusion of the trial yesterday that incorporated a bundle of proposals that in my view accorded with the evidence to date which may advance the matter to a conclusion and assist the father in participating in his children’s lives but subject to the impositions and restrictions the diagnosis of autism in the child C would suggest were appropriate.  The Independent Children’s Lawyer has provided those to me today and I am grateful for her efforts in that regard.  I annex a copy of those Minutes to these published reasons.  However, the father’s failure to attend today and participate further in the proceedings, particularly in light of his intimation yesterday that he was not intending to take any further part in the proceedings, suggests that adoption of those Minutes in full is not in the best interests of the children C and M and that their interests would best be served by final Orders enabling the mother to get on with her life and continue her outstanding attention to the quite demanding needs of the two children.

4. In reaching that conclusion I have had regard to the relevant provisions of the Family Law Act 1975 as amended, particularly those contained in Part VII. Section 60CA requires me to make any decisions in matters such as this, having regard to the best interests of the children as the paramount consideration. In reaching that conclusion, I am guided to Section 60CC of the Act which is divided into primary considerations and additional considerations. The primary considerations are:-

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;

1. This has been the most difficult aspect of these proceedings.  An enormous amount of time, effort and attention has been devoted to the father in order for him to acquire an understanding of the very difficult health issues that are faced by C in particular, and potentially M.  Everybody associated with the matter has, in the vernacular “bent over backwards” to assist the father.  He has on many occasions leading up to the trial in July and subsequent to the trial in July, been referred to various people who could help him in attaining an understanding of the condition being faced by C and possibly M in securing early intervention assistance, assistance from Children’s Contact Services, from Professor T himself and from the Independent Children’s Lawyer and others.  He has made some attempts to take advantage of those offers but in other areas has failed to do so.

2. The most notable obstacle to the father being able to enjoy a meaningful relationship with his children has been his stubborn refusal to accept the diagnosis of autism in his son C and to acknowledge the possibility of a similar affliction impacting upon M and even acknowledging the need for M to be tested to see if he does suffer such a condition.

3. The Court and all of the parties have for some time enjoyed the benefit of comprehensive written reports from Professor T and from a Dr B, a Special Early Childhood Educator/Autism Consultant in Victoria.  In addition, in order to further assist the father in achieving a comprehensive understanding of C’s medical condition, the Independent Children’s Lawyer made arrangements with Professor T and the Court offered to the father the facility, to secure video link evidence from Professor T.  Professor T was particularly patient and answered every query directed at him by the Court, Counsel for the mother and for the Independent Children’s Lawyer and from the father.  In the end he devoted some 2 ¼ hours of his time to that exercise until all possible questions were exhausted.  He provided a comprehensive, insightful, articulate and comprehensible description and explanation of the condition of autism, his findings in relation to C, the reasons for his findings in that regard, the reasons why he had dismissed alternative possible diagnoses and the treatment and way forward for C and his carers.  He was patient, particularly with the father, until the father had no further questions to ask of Professor T.  Professor T indicated that he was 100 per cent certain of his diagnosis that C suffered autism and he indicated that he was also worried about some of the developmental delays and other signs that he had seen in M.  The evidence could not have been more plain, it could not have been more comprehensive and the people endeavouring to assist the father could not have been more patient or more giving of their time and help in endeavouring to achieve in the father an understanding of C’s condition and its implications for C’s care, his living arrangements and the times that he could spend with the father. 

4. Despite all of that the father maintained a stubborn refusal to accept the diagnosis and was clearly of the view at the conclusion of all of that evidence, as he had appeared to have been for quite some time, that the mother and Professor T particularly, but quite probably everybody associated with this case, were guilty of a conspiracy against him in order to deprive him of the orders that he sought in relation to C.  Expressed in the vernacular, he was clearly of the view that the diagnosis of autism had been “trumped up” in order to prevent him from having the children live with him or see him in an unsupervised totally unstructured environment.  He made some effort to make enquiries of Autism SA about the condition and at times appeared to show some insight into what it might mean for C and his role in C’s life.  There were times when the Court and others took hope from some expressions of understanding by him to the point at times where he seemed to have accepted the diagnosis, knew that he had to develop a full understanding of autism and then apply that knowledge to the time that he spent with C.  However, in the end all was lost with his emotional outburst at the conclusion of Professor T’s evidence, clearly indicating that he had learned nothing and refused to accept the obvious.

5. Thus maintaining a meaningful relationship between the father and the children in those circumstances appears at the present time to be an impossibility.  Despite this, in the Minutes provided to me, the alternative version of which I adopt, the mother has again proffered time for the father to spend with the children at the D Children’s Contact Service at the father’s choosing. 

6. The most meaningful relationship that the children are ever likely to have into the foreseeable future is that with their mother.  The mother needs to be supported in this extremely difficult role that nature has imposed upon her.  The evidence makes it clear that she has made enormous sacrifices and made an outstanding contribution to her son’s welfare in the face of the diagnosis in respect of C and the possible diagnosis in respect of M.  She has done it without any financial assistance at all from the father and clearly given his attitude and approach, has had to undertake it without any emotional support from the father also.

7. It is important for the children, even if they did not suffer the conditions with which they have been diagnosed and may potentially be diagnosed, to enjoy a supportive relationship between their two parents in a conflict free zone.  Given their special problems that approach becomes even more essential.  The father appears unable to contribute positively to that approach.  The mother therefore needs to be free from as many stressors in her life as is possible in order to get on with the important task of assuring as good a possible future for her two sons as can be achieved, given their developmental difficulties and their health issues.

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

1. There are no particularly significant issues that arise for my consideration pursuant to this sub-section.  The father has long maintained that the mother has been guilty of inappropriate conduct towards her children and at times, violence.  There is no evidence upon which the Court would make any such finding.  I am satisfied that they are safe and properly nurtured in her care.  The most difficult psychological harm that may ensue to the children would arise from the father’s unbending stubborn refusal to acknowledge that his son C and possibly his son M, suffer from a serious debilitating and permanent incurable illness.

2. I then need to look to the additional considerations. 

(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's wishes;

1. Whilst there are no explicit expressed views to which I have been directed and to which I can have regard, the importance of the relationship between the mother and the children is obvious from all of the evidence and it would be clear from that relationship and from the closeness and attachment between the mother and the children that they would have no view other than that they ought to be living with their mother.

(b)the nature of the relationship of the child with:

(i)each of the child's parents; and

(ii)other persons (including any grandparent or other relative of the child);

1. I have already explored in some detail the nature of the relationship which exists between the father and the children.  I viewed a DVD which he tendered in evidence, being Exhibit 6, and also spent many, many days hearing his evidence from the witness box.  Certainly in the DVD the father tried extremely hard to engage with his children and they seemed in the confined circumstances of the D CCS where the DVD was recorded, to enjoy his company.  He certainly appeared to enjoy their company.   The tragedy of it is  that if he had accepted the diagnosis of Professor T and worked with the many, many people who have offered their assistance to him, he could have developed a more meaningful and fuller relationship with his sons which would have benefited not just the father but more importantly and significantly, his two sons.  It is a matter of great regret that he has chosen not to do so.  It is a matter of regret that he seems to have chosen to walk away from his two sons, sons whose lives have been made particularly difficult in any event (and certainly C’s) by the need to cope with the very debilitating illness of autism.  He could have given so much to his children if he had been willing to do so.  By his reactions yesterday and his failure to attend today, he has clearly chosen not to contribute to the wellbeing of his two sons in that regard. It can only be hoped that one day he will have a change of mind and will develop a full understanding of just how difficult life will be for his sons, how difficult it is for the mother of the children and how much he could help in that process if he was so inclined. 

2. The mother’s relationship with the children is exemplary.  They have an absolute need for their mother’s care and nurturing and in terms of the relationship they have with other children, it is obvious that the relationships they enjoy with the mother’s other children T and E, are very important to them.  The mother is fortunate to have her two older children assist her in the very difficult task that she faces and to take on much of the role that the experts and many others, including this Court, expect should have fallen to the father.

(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

1. The mother has done all she could in that regard.  Protective as she needs to be of her children given their health issues, she has nonetheless made them available for appropriate time to be spent with the father.  Despite a number of absences by the father over time and a lack of commitment by him to the process, she has persevered.  The father’s willingness to maintain a close relationship with his children has suffered through his inconsistency and apparent lack of dedication to the exercise at times.  At other times the quite onerous journey between Adelaide and D was undertaken by him consistently and regularly and gave great hope for the future in relation to the wellbeing of his sons.  There have been times though when he has been absent from their lives for extended periods and now by his actions of yesterday and today, has cruelly robbed his sons of the opportunity to develop a close relationship with him and him with them.

(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)either of his or her parents; or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

1. Again this is an issue about the father’s dedication to task.  Again the children must seemingly experience a change in their life circumstances, namely their father will no longer be attending in D to see them on a regular basis.  There is also the possibility that they will need to experience further change and have to accommodate further differences and altered circumstances if the father again chooses to resume his contact with them.  The best orders that I can make today for the children and to effect the least change in their lives will be to make final orders.  The need for a consistency and a routine is even more important in C’s life and potentially in M’s life than in the lives of children who do not suffer the debilitating illness that at least C suffers and M may.  The evidence of Professor T was clear that autistic children do not accommodate change well.  They need consistency and routine.  Thus final orders in favour of the mother that the children live with her and that the father have contact in circumstances which are good and healthy for the children, is the result that would achieve the least change in their circumstances and secure their wellbeing.

(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

1. This is an issue for the father.  He has, for many months, consistently driven the distance between Adelaide and D to see his children and spend time with them.  I acknowledge that it has been a difficult and expensive exercise for him and has clearly been a source of some frustration to him.  However, certainly the medical evidence alone dictates that regrettably if he does choose to continue to see his children, he will need to face that difficulty and expense.  The optimistic outcome would be that he would acquire an in-depth level of understanding of autism and work with all of the children’s carers and helpers, medical professionals and advisers such that he may potentially in the future face less difficulty and expense as the options for him spending time with the children could well open up.

(f)the capacity of:

(i)either of his or her parents; or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

to provide for the needs of the child, including emotional and intellectual needs;

1. I do not need to explicitly detail expansive reasons under this sub-section.  I have covered all relevant issues in my reasons given earlier in respect of other sub-sections.  In summary though, I am satisfied that the mother has demonstrated an exceptional capacity to care for her children and their special needs.  The father has, at times, met the children’s needs and demonstrated a capacity to do so but at other times, and particularly now at the critical final stages, has failed to demonstrate that capacity to care for his children and place their needs over and above his own needs and expectations.

(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

1. Again regrettably the father has taken the decision that he will not extend to his children the opportunities they would have had of learning of his own culture by making himself absent from their lives.  Their experiences and development in that regard would have been broadened and been meaningful if he had chosen to do so.  The mother is able to bring her own cultural differences and benefits to the children as well and they will certainly have a more expanded experience than many children are able to obtain.

(h)if the child is an Aboriginal child or a Torres Strait Islander child:

(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture): and

(ii)the likely impact any proposed parenting order under this Part will have on that right;

1. This sub-section is not relevant for my determination.

1. the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

1. Again, in my view it is not necessary to detail any findings under this sub-section.  They have been covered by me in my treatment of the earlier sub-sections, particularly sub-sections (b), (c) and (f).

(j)any family violence involving the child or a member of the child's family;

and

(k)any family violence order that applies to the child or a member of the child's family; if:

(i)the order is a final order; or

(ii)the making of the order was contested by a person;

1. In my view, these sub-sections are not relevant to any determination I make today.

(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

1. This sub-section, in my view, dictates that I need make final orders today.  The making of orders that required a period of adjournment to determine whether or not the father was interested in pursuing and continuing his relationship with the children, is not the most appropriate to pursue.  Nor would any further adjournment of the proceedings in order to see how the children may well be coping in say 6 or 12 months time.  Finality for the mother is the most important thing that can be achieved for these children in order to enable her to get on with her life, that life being principally about raising children who have very difficult developmental and medical needs.

(m)any other fact or circumstance that the court thinks is relevant.

1. I believe that I have comprehensively covered all relevant issues and no other matters emerge for my consideration pursuant to that sub-section.  Nor in my view is it necessary to consider sub-section (4) in any greater detail. 

2. In my view though it is appropriate, pursuant to Section 61DA to discharge the presumption of equal shared parental responsibility.  For all of the reasons dictated above, it is clear that the mother will take the primary role in respect of the children and indeed may take the only role if the father continues by choice to absent himself from his lives of his sons.  In my view therefore it is appropriate that I make an order that the mother have sole parental responsibility for the children.

I certify that the preceding twenty seven (27) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr

Associate: 

Date: