TEAGAN & TEAGAN

[2020] FCCA 2098

FEDERAL CIRCUIT COURT OF AUSTRALIA

TEAGAN & TEAGAN [2020] FCCA 2098

Catchwords:
FAMILY LAW – Arrangements for care of child aged eight years – child has special needs – issue of poor communication between the parties considered in light of the conferral of parental responsibility – assessment of impact on child of a change of circumstances – meaningful relationship – matters to be considered – best interests.

Legislation:

Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60CA, 60CC, 61C, 61DA, 64B,

65C, 65DAA, 65DAC, 65DAE.

Cases cited:

Astor & Astor [2007] FamCA 355

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

Bartel & Schmucker (No 3) [2012] FamCA 1094

Bright v Bright (1995) FLC 92-570

Fox v Percy (2003) 214 CLR 118

Mazorski v Albright (2007) 37 FamLR 518

MRR v GR (2010) 240 CLR 461

Russell & Russell & Anor [2009] FamCA 28

Stevenson v Hughes (1993) FLC 92-363

Taylor & Barker (2007) FLC 93-345

Applicant: MR TEAGAN

Respondent: MR TEAGAN

File Number: ADC 2734 of 2018

Judgment of: Judge Brown

Hearing dates:

1 August 2019; 29 January, 30 January,

29 April 2020

Date of Last Submission: 29 April 2020

Delivered at: Adelaide

Delivered on: 31 July 2020

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant: N/A

Counsel for the Respondent: Ms Smith

Solicitors for the Respondent: Legal Services Commission of South Australia

ORDERS

1. All previous parenting orders are hereby discharged.

2. The parties have equal shared parental responsibility for the child of the marriage X born in 2011 (hereinafter referred to as “the child”).

3. In the exercise of this equal shared parental responsibility for the child the parties are to consult with each other in respect of all major long term decisions pertaining to the children, which include but are not limited to, issues concerning the following:

   (a)The child’s education (both current and future);

   (b)The child’s religious and cultural upbringing;

   (c)The child’s health and any special needs;

   (d)The child’s names; and

   (e)Any changes to the children’s living arrangements, which significantly interferes with the operation of these orders, particularly with the specific arrangements for the children to spend time with each parent.

4. The mother and father shall:

   (a)Keep the other parent informed at all times of his/her residential address and contact details, including mobile and landline telephone numbers and email address;

   (b)Keep the other parent informed of the names and addresses of any treating medical or other allied health practitioner who treats the child as soon as is reasonably practicable but no later than 24 hours after such consultation and authorise such practitioners to provide the other parent with information that they (the applicable medical or other allied health practitioners) are lawfully able to provide about the child; and

   (c)Inform the other parent as soon as is reasonably practicable but no later than 24 hours after such issue has arisen of any medical issue, significant health issue or significant illness or injury suffered by the child.  This order authorises any treating medical practitioner to release details of the child’s medical condition and/or injury to the other parent. 

5. The parents authorise by this order, the school, attended by the child to give each parent information about the child’s educational progress and other related activities and supply them with copies of reports, photographs, certificates and awards obtained by the child (at the expense of the parent requesting same). 

6. Each parent is at liberty to attend at the child’s school, pre-school or kindergarten for all events that are routinely attended by parents, including parent-teacher interviews, sports days and concerts. 

7. The parties utilise a communication book, electronic app or other electronic format to exchange information in writing regarding the child’s education; changing sleep requirements; dietary, medical, extracurricular, and behavioural needs and preferences; and any appointments the child has with professional people as they are scheduled to occur. 

8. The child live with the mother.

9. The child spend time with the father as follows:

   (a)During school terms, from the conclusion of school Friday (or 3.10pm if a non-school day) until the commencement of school the following Tuesday (or 9.00am if a non-school day) and in each alternate week thereafter commencing Friday 31 July 2020 or such other date as agreed between the parties in writing to reflect the current regime for the child’s care;

   (b)During school holiday periods, on alternate weeks from 5.00pm Friday until the following Friday at 5.00pm, with such time to commence at the conclusion of school (or 5.00pm if a non-school day) on the Friday in the last week of each school term and subject to any arrangements for special occasions as outlined hereunder, unless the parties otherwise agree in writing that the weeks should fall otherwise.

10. The child spend time with each of the parties on special occasions as follows:

Mother’s Day & Father’s Day:

(a)The child spend time with the mother from 10.00am to 5.00pm on Mother’s Day each year;

(b)The child spend time with the father from 10.00am to 5.00pm on Father’s Day each year;

Child’s Birthday:

(c)That if it is not a handover day, the child spend not less than 3 hours with the parent who is not caring for him on the day from 3.00pm to 6.00pm each year;

Easter:

(d)The child spend time with the mother from the conclusion of school Maundy Thursday (or 3.10pm if a non-school day) until the commencement of school the following Tuesday (or 10.00am if a non-school day) in 2021 and each alternate year thereafter;

(e)The child spend time with the father from the conclusion of school Maundy Thursday (or 3.10pm if a non-school day) until the commencement of school the following Tuesday (or 10.00am if a non-school day) in 2022 and each alternate year thereafter;

Christmas:

(f)The child spend time with the father from 10.00am Christmas Eve to 10.00am Christmas Day and each alternate year thereafter commencing in 2020;

(g)The child spend time with the mother from 10.00am Christmas Day to 10.00am Boxing Day and each alternate year thereafter commencing in 2020;

(h)The child spend time with the mother from 10.00am Christmas Eve to 10.00am Christmas Day and each alternate year thereafter commencing in 2021;

(i)The child spend time with the father from 10.00am Christmas Day to 10.00am Boxing Day in each alternate year thereafter commencing in 2021;

New Year’s Eve:

(j)The child spend time with the mother from 10.00am New Year’s Eve to 10.00am New Year’s Day in 2020/2021 and in each alternate year thereafter;

(k)The child spend time with the father from 10.00am New Year’s Eve to 10.00am New Year’s Day in 2021/2022 and in each alternate year thereafter.

1. That all handovers that occur on school days be at the school when the child is attending school but otherwise all handovers occur at the Suburb B with the parties or maternal or paternal grandparents to effect handover provided they each have approved booster seats.

2. Each party make all necessary enquiries to enrol in a post separation parenting course, such as the KidsAreFirst program, and make enquiries as to completing a course and undertaking the first available course which is available to each of them.

3. Each party make all necessary enquiries to enrol the child in the post separation program Banana Splitz through Anglicare, and make enquires as to completing a course and undertaking the first available course which is available for the child.

4. In the event that any major long term decision is required to be made in respect of the child and the parties are unable to agree upon the issue, the parties are to attend upon a family dispute resolution practitioner or other counsellor and attempt to resolve the issue.

5. All outstanding applications are dismissed as finalised.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 2734 of 2018

MR TEAGAN

Applicant

And

MR TEAGAN

Respondent

REASONS FOR JUDGMENT

Introduction

1. Mr Teagan “the father” and Mr Teagan[1] “the mother” are the parents of X born in 2011.  The parties are in dispute about final arrangements for X’s future parenting. 

   [1]  In the initiating application, the mother is referred to as Ms Teagan.  However, she has deposed that she has retained the name “Teagan” so as to avoid any sense of confusion for X.  I will utilise this nomenclature in these reasons for judgment.  See paragraph [25] of the mother’s affidavit filed 25 July 2019.

2. The parties finally separated in early 2016 and have had an extremely difficult co-parenting relationship in the period since, marked by communication difficulties and bitter disputes about X’s medical and educational needs – he has recently been diagnosed as autistic.

3. Ideally, Mr Teagan would like the parties to be conferred with equal shared parental responsibility, for X, and for the child to live with each of his parents on a week about basis. 

4. However, if the court accepts that such an outcome is impracticable, due to communication deficits in the parties’ parenting relationship, he would want X to live predominantly with him, as he asserts it is the mother who is driving the long standing discord between them and it is she, rather than he, who is impossible to deal with.

5. Failing either such outcome, he would not want his relationship with X to be unduly confined because of what he would characterise as the mother’s malign or misplaced desire to restrict his relationship with the child, which is based on the satisfaction of her own emotional needs, rather than those of X. 

6. He further asserts that the mother keeps information, about X, away from him and then makes important unilateral decisions about his care, particularly in respect of medical issues.  In these circumstances, at the very least, he would want to spend substantial and significant periods of time, with X, of up to five days per fortnight.

7. On the other hand, it is the mother’s position that the parties’ relationship with one another is too conflicted for week about to be a viable option.  She further asserts that it would be emotionally disruptive for X to be moved from having a substantial level of care with her, as she has been his long standing primary carer, since the parties separated in early 2016, when X was four years of age.  It is her position that she is more emotionally in tune with X and the more competent parent.

8. More significantly, she categorises Mr Teagan as a bully, who hectors and belittles her to get his own way, including in respect of arrangements for X’s care.  Essentially, she asserts that he is impossible to negotiate with, in any practical way, and this results in the two being unable to reach any sensible decision in respect of arrangements for X’s care.

9. In these circumstances, she seeks that parental responsibility, for X, should be conferred solely on her and that the child should live predominantly with her and spend time, with his father, on alternate weekends, from after school Friday until the commencement of school the following Monday and for half of each school holiday.

10. In legal terms, the case hinges on the presumption of equal shared parental responsibility created by section 61DA of the Family Law Act 1975. The mother asserts that the presumption should not be applied.  The father asserts that it should be and, if it is not, it would create a substantial injustice, if he was to be deprived of having a meaningful level of relationship, with X, on the basis of the mother’s antipathy for him.

11. That the parties do not have anything even vaguely approximating a workable parenting relationship is not in dispute in this case.  What is in dispute is why their relationship is so difficult and what are the implications of it for the achievement of an outcome, in the case, which will be in X’s best interests overall. 

12. Essentially each asserts that the other is the problem.  The father alleges that the mother makes unilateral decisions about X and withholds important information about the child from him.  The mother alleges that the father is a demanding bully, who has no insight into what X actually needs and no respect for her central role as X’s primary carer.

13. X is a child with idiosyncratic special needs.  His behaviour, in his initial years of primary school was challenging and led to him being frequently suspended from school.  In May of 2019, a speech pathologist and psychologist assessed him as meeting the criteria for Autism Spectrum Disorder, on the basis of diagnostic criteria.[2] 

    [2]  See Headstart report dated 9 May 2019 being annexure A to the mother’s affidavit filed 23 May 2019

14. The parties disagree about how X’s condition is to be best managed.  In the past, there have been significant controversies arising in respect of medication prescribed for X and, from the father’s perspective, the fact that he was not consulted about this medication or even informed that X was to see a paediatrician.  The paediatrician concerned is Dr C. 

15. In a brief report, dated 15 July 2019, Dr C wrote as follows:

    “X may still require pharmacologic assistance for his poor concentration span … medical management of X remains additionally challenging due to the poor communication between his parents.”[3]

    [3]  See updating report dated 15 July 2019 being annexure B to the mother’s affidavit filed 25 July 2019

16. It is Mr Teagan’s evidence that Dr C has told him in a letter that he maintains a paper file for X, whilst all his other child patient records, which number in the thousands, are digitally stored.  The implication of this evidence being that the parties have achieved a spectacular level of dysfunction, which requires special management and care by the paediatrician.  If this is so, sadly, it is nothing to be proud of.

17. In the letter concerned, Dr C wrote as follows:

    “I have found X’s case to be so complex that accessing computerised data is so difficult that I have retained the paper notes that I can ascertain who has attended, and what has been said.  For virtually every other family I have ever met where the parents are separated, the parents still manage to come together, or at least there is effective communication at handovers.

    In X’s case, I have to write separate prescriptions for each parent to take away on separate occasions.  The Health Insurance Commission does not like this, as the prescriptions are for drugs of dependence.

    Once again, the paper notes provide me with instant access to who exactly I have given each prescription to.”[4]

    [4]  See letter dated 21 January 2020 being annexure A to the affidavit of the father filed 24 January 2020

18. From Mr Teagan’s perspective, the reason the parties have such a poor parenting relationship can be ascribed to the following general factors:

    ·The mother withholds significant information to do with X from him;

    ·She makes important decisions concerning X unilaterally, without previously informing him about the need or context of any such decision having to be made;

    ·The mother lacks judgement and insight about what is best for X and is at times more motivated by her own desires;

    ·The mother maligns him unfairly to professionals involved in X’s life in order to justify such unilateral decision making;

    ·Other members of the mother’s family have joined with her to obstruct his relationship with X;

    ·The mother’s behaviour is motivated by her desire to exclude him as an important and living parental figure in X’s life, which will be detrimental to the child’s long-term developmental and emotional interests.

19. On the other hand, Ms Teagan asserts that the parties’ relationship is so poor because:

    ·The father does not take account of her views and calls any idea of hers, with which he disagrees, dumb and refers to her as stupid;

    ·Mr Teagan was not accepting of X’s diagnosis and would not support the medication regime prescribed for him;

    ·Mr Teagan does not accept that her calm and less assertive attitude to the discipline of X is likely to be more productive, in the longer run, given X’s significant special needs;

    ·Mr Teagan runs roughshod over her when he does not get his own way in respect of X, including over-holding him;

    ·Mr Teagan was not a competent parent because he did not provide sufficient supervision for X and preferred to socialise with his friends, which included the consumption of alcohol.

20. The parties agree that they have a different approach to parenting, particularly in respect to discipline and structure.  The father would characterise himself as more strict and structured, in his parenting than the mother, whom he categorises as being unduly permissive.  The mother would assert that the father was too hard on X and this was not appropriate for him, given X’s special needs, and was likely to be counter-productive.

21. As invariably happens, in cases involving disagreement for a child post separation, the court commissioned an expert to prepare a report in respect of X, which included an assessment of the nature of his relationship with his parents and the dynamic between them.

22. The expert, Ms D, did not believe the parties had anything nearly approaching the cooperative relationship on which to base an equal time regime.  Further, she considered that there was a gulf in attitude in respect of how parenting issues, particularly discipline, were managed in each of their households.

23. It was her impression that Ms Teagan was the parent who responded more calmly to X’s challenging behaviour and should be therefore favoured with his predominate care.  It is Mr Teagan’s contention that Ms D was biased against him and placed insignificant emphasis on what he would regard as the manifest inadequacy of the mother’s parenting and the strengths of his more old style approach.

24. These reasons for judgment are directed to resolving this complicated and emotionally laden case. As with all cases, involving a child, the court’s lodestone must be X’s best interests, which are to be referenced by the long list of matters contained in section 60CC of the Family Law Act 1975.

The evidence

1. In these reasons for judgment, findings of fact are made on the balance of probabilities, from my observation of the demeanour of each of the witnesses concerned.[5]  I have tried to reach my conclusions on credibility and reliability on the basis of contemporary materials, objectively established facts and importantly, on the apparent logic of events.[6]

   [5]  See Evidence Act1995 (Cth) at section 140

   [6]  See Fox v Percy (2003) 214 CLR 118 at 129 [31] per Gleeson CJ, Gummow and Kirby JJ

2. The most significant feature, of this case, from an evidentiary point of view, is the significant and endemic conflict between the parties.  This, in turn, will have implications for the allocation of parental responsibility between them.

3. The manner in which each party has formulated their respective case, to a large degree, requires the court to ascribe reasons as to why the parties’ relationship is so disastrous.  This, in turn, has the potential for the court to ascribe blame or fault for this parlous state of affairs. 

4. This is highly regrettable and will do nothing to assist the parties in having a better relationship in future.  It will, of course, be beneficial, for X, if his parents are able, in some way to find better ways of dealing with each other and communicating effectively.

5. However, the case must still be decided, as the parties are at complete loggerheads.  Accordingly, although I would prefer not to, I must make some sort of assessment of the personalities of each of the parties.  Necessarily, this must be an imprecise process.

1. At the outset, it is important that I point out, to each of the parties concerned, that I consider each of them to have much to offer X because of the obvious love and affection they hold for him.  I accept that both genuinely believe that the position, which they have each advocated in this case, is the best outcome for X.

2. In this sense, X is lucky to have two parents, who love him and want the best for him in life.  However, like many individuals, who have the misfortune to be involved in a failed relationship, leading to court proceedings such as these, they seem to have markedly different personalities and to present different in court.

3. I appreciate that the witness box does not always provide the best mechanism to assess the character and motivations of individuals, who are likely to be rendered nervous and uncomfortable by the unfamiliar and somewhat intimidating environment of the courtroom. 

4. For obvious reasons, it is also a process unlikely to shed a great deal of light onto a person’s parenting capacity, as cross-examination does not necessarily reveal how a person responds intuitively to a child, particularly in an emotional context.  Such issues are usually better canvassed through the mechanism of a family report, which permit the court appointed expert to see the physical reality of parent/child relationships.

5. In addition, in the current matter, Mr Teagan was at a significant disadvantage in the proceedings, as he had to represent himself, whereas Ms Teagan was represented by experienced counsel trained in the arts of cross examination.  Mr Teagan is not so skilled and it was difficult for him to prepare both the questions he wanted to ask and his court documents.

6. However, imperfect though the system is, it still enabled me to be exposed to each of the parties at close hand.  Mr Teagan presented as a passionate and determined advocate of his own cause.  He is not easily overborne or deterred from any particular course, once he has set his mind upon it and become convinced of its righteousness.  His determination runs the risk of being perceived as bullying or blinkered in its application, which he would characterise as self-assertiveness or sticking up for himself, rather than anything more sinister.

7. I did not find his determination rude or domineering.  As will become clear, in due course, he has a point to make about very many issues of controversy arising in this case and is not shy to make them in a forceful manner.  However, his determination, although in itself a positive attribute, lends him to being perceived as being self-opinionated and inflexible, particularly by those of a less assertive personality.

8. Ms Teagan presented as a more passive person in court.  That is not to say that I do not consider her capable of displaying fits of temper, as the father suggests in his evidence.  She did not present so in court.  What struck me most about her evidence was her capacity to make concessions in respect of the criticism made, by Mr Teagan, in respect of her unilateral actions in respect of X.

9. It seemed to me that she considered that these were not, of themselves, serious criticisms and because she was X’s primary carer, she was entitled to do what she had done.  As such, she was somewhat taken aback that Mr Teagan’s criticisms should gain any traction. 

10. She seemed genuinely taken aback that she could be open to criticism for making unilateral decisions in respect of X, which she considered appropriate, given what she would regard, axiomatically, as her superior role as X’s mother.  In these circumstances, both parties seemed to share one attribute – a conviction that they know best, so far as X is concerned.

11. Accordingly, this is not a case that turns on the assessment of credit.  I found each party to be honest in the evidence presented.  What is significant in the case is that the parties have fundamentally different world views as to how to parent.  This may be a reflection of their different genders but more likely flows from their different backgrounds.

12. In short, the parties are chalk and cheese and, as a consequence of the current proceedings, which have been fairly acrimonious, have become more so.  Ironically, it seems to me, that the differences in the parties’ respective personalities and backgrounds, are likely to be complementary in nature.  As such, each has much to offer X.  In my assessment, they are good parents.

13. The problem is that the adversarial nature of their relationship, particularly since separation, has exacerbated the difference between them and negated any capacity, either had, to empathise with the situation of the other.  Regrettably this has led each to see the other as an enemy to be thwarted or defeated.  This has further stultified any viable mechanism they may conceivably have been able to fashion to communicate effectively with one another.

14. This common attribute has been displayed in different ways by each of the parties.  The mother through passive resistance and an attitude of obstruction to the involvement of the father in X’s life; the father through a tendency to lecture the mother and assume the worst of her.

15. Accordingly, in my view, the central finding of the case is that each of the parties has contributed to the currently disastrous nature of the parenting relationship, with all the obvious disadvantages it entails for X himself and his welfare, but in different ways.

16. However, individually, they are each good and skilled parents, with much to offer X, specifically because of the love they each hold for him.  In tandem, they are likely to be problematic.  This is the essential dilemma thrown up by the case.

Background

1. The father was born in 1978.  He is a tradesman by occupation.  He has been married previously and has two children from his earlier relationship.  They are E who was born in 2004; and F who was born in 2006. 

2. It is common ground that E and F have a good relationship with their father.  During the parties’ relationship, they would come to the home shared by Mr and Ms Teagan for half of each school holiday period and for blocks of between three and seven nights per fortnight during school terms. 

3. Since the parties separated, Ms Teagan no longer continues to have any form of relationship with E and F, due to their mother’s objection.  Ms Teagan also asserts that Mr Teagan struggled to achieve a shared care arrangement for E and F, but when he achieved it, became disinterested in spending time with his two children.

4. This is one of many factual issues, which is not central to the outcome of the case but is indicative of the extreme antipathy between the parties.  I am not able to resolve the issue in the course of the present proceedings and do not feel the need to do so.  The implication of the allegation being to support the mother’s assertion that Mr Teagan seeks shared care only to annoy her.

5. The mother was born in 1986.  She is employed as a health care worker.  She works conventional hours from Monday to Friday each week.  The parties met in late 2009 and began to live together shortly afterwards.  They married in 2014 and finally separated in early 2016, when X was a little over four years of age.

6. The parties were able to resolve issues to do with the separation of their financial affairs without the need for court intervention.  From the father’s perspective, he was generous in how property was divided.  Whether that was true or not is again beyond the scope of these proceedings.

7. What is relevant is that the father consistently portrays himself as a rational and reasonable person, who is essentially easy to get along with, whilst he characterises the mother in entirely negative terms, describing her as suffering from irrational temper tantrums and being a habitual liar, who made his life a misery during the parties’ marriage.

8. In his self-drafted trial affidavit, Mr Teagan deposed as follows in respect of his view as to why the marriage failed:

   “The misery and systematic emotional abuse and pathological lies as well as serious emotional manipulation … all got too much for me to handle any more.

   I felt that the lives of myself and my children were in danger as the mother’s behaviour was becoming more erratic and quite disturbing sometimes stamping her feet and screaming like a toddler having a temper tantrum.”[7]

   [7]  See father’s affidavit filed 10 July 2019 at [30]–[31]

9. From the mother’s perspective, the parties’ marriage was equally unhappy.  She acknowledges that there were arguments between them.  However, she does not characterise their relationship as one subject to issues of family violence.  She deposes as follows:

   “I have not ever claimed that the father was abusive physically to me or that I am physically afraid of him but I do say he is difficult, demanding, belittling and I often experience interaction with him as intimidating.”[8]

   [8]  See mother’s affidavit filed 25 July 2019 at [125]

10. Accordingly, each party feels hard done by as a consequence of the other’s behaviour, during their marriage.  Essentially, both present as something of a martyr to the caprice and unreasonableness of the other.  This was the thrust of much of the proceedings before me.  I was asked, in effect, to determine who was more at fault for the disastrous state of the parties’ parenting relationship.

11. This is not likely to be a particularly useful exercise.  The case is concerned with X’s best interests, not those of the parties.  As such, X is not to be awarded, like a prize, to the parent I think is the more deserving, either because I consider that he or she has behaved the better or more significantly because I think that the other has behaved the worse. 

12. At separation, the mother and X went to live at the home of Ms Teagan’s parents in Suburb G.  Mr Teagan remained living in the former family home in Suburb H.  In 2016, the mother purchased a home for herself in Suburb J.  It is about 5½ kilometres between the parties’ respective homes.  In the longer term, Ms Teagan would like to move to Suburb G to be closer to her parents.

13. Notwithstanding their mutually unhappy marriage, the parties were able to agree on arrangements for X’s care relatively easily in the initial period of their separation, whilst they sorted out property issues.  Ms Teagan acknowledges that they got on reasonably well in this period and Mr Teagan was helpful to her in settling in to her new home.

14. It was agreed that X would spend from Friday after school until the commencement of school the following Monday each fortnight, with his father; as well as from Tuesday afternoon until the following Wednesday morning.  This arrangement reflected X’s tender years and the fact that Mr Teagan was in full time employment; whilst Ms Teagan was not.  She utilised her parents to assist with child care, from time to time, when she was at work.

15. X began primary school at the start of the school year in January 2017 at Suburb J Primary School, which was convenient to the mother’s home.  The father would have preferred that he had attended at Suburb H Primary School, which was very convenient to his home, being across the road from it.

16. Ms Teagan’s evidence was that she had heard from an acquaintance, who has an autistic daughter that the school was orientated towards children with special needs and was very open in its planning with lots of glass walls.  Mr Teagan remains resentful that the decision was made without any consultation with him, after the parties had agreed, during their marriage, on Suburb H Primary School for X.

17. Suburb J Primary School did not work out well for X.  The school found his behaviour to be extremely challenging and he was subject to regular exclusions from the school as a consequence of being violent to other children.  In his oral evidence, Mr Teagan deposed that X was excluded from the school about twenty times and was on the verge of being expelled.

18. For obvious reasons, this must have been a very upsetting time for both parties and each realised that it could not go on as it was.  However, they were unable to agree on the best strategy or school for X.  In addition, at this time, given his age, neither a definitive nor provisional diagnosis had been provided as to why X’s behaviour was as challenging as it was.

19. However, regrettably, the crisis regarding X’s schooling created more rather than less controversy between the parties.  In his oral evidence, Mr Teagan deposed that he recognised elements, in X’s behaviour, in his own conduct.  He did some research on the internet and discovered that some experts thought karate was a good way for challenging children, such as X, to channel their energy and aggression.

20. He arranged a karate class for X on the Thursday evenings the child was in his care.  It is Mr Teagan’s evidence that he noted an improvement in X’s behaviour.  Ms Teagan does not agree and has deposed that the school authorities informed her that X had been threatening other children with karate moves.  Again, this difference of views exemplifies their very different approaches to parenting. 

21. Both agreed that Suburb J was not working for X and another school needed to be tried.  Mr Teagan again favoured Suburb H.  Ms Teagan proposed another school at Suburb K, which Mr Teagan agreed to visit.  It is Mr Teagan’s evidence that he was “totally blind sided” when Ms Teagan unilaterally enrolled X at Suburb G Primary School.

22. From his perspective, the mother had an ulterior motive for selecting this school because it favoured her ultimate plan to live close to her parents.  In these circumstances, he asserts that this is a clear example of the mother putting her own desires before the needs of X. 

23. Ms Teagan disagrees.  It is her evidence that Suburb G is a good primary school.  It is her evidence that she selected this school because she thought it was the best one for X and she knew that there was no point in discussing the issue with Mr Teagan because, if she had suggested something, he would automatically disagree with her suggestion and want something else, because of his bullying attitude towards her. 

24. On the other hand, in his oral evidence, Mr Teagan deposed that he had constantly tried to telephone the mother to discuss the issue but she refused to take his call and in so doing passively resisted his desire to share parental responsibility, for X, with her.  It is the effect of his evidence that he regards himself as a reasonable person, who wants to talk about parenting issues with Ms Teagan but, “she won’t talk to me”. 

25. Things came to a head, in July of 2018, when Mr Teagan commenced the current proceedings, seeking an equal time regime in respect of X and the conferral of shared parental responsibility for the child.  From his perspective, it was essential that formal orders be made because he had discovered that Ms Teagan had made some very significant decisions, regarding the medical treatment of X’s behavioural issues, without any consultation with him. 

26. The evidence indicates that X had been referred to a counsellor, at his school, for assistance with managing his behaviour.  This in turn led to a referral, via a general medical practitioner, to Dr C, who remains X’s paediatrician.  Mr Teagan was not informed about the referral to Dr C and so was not part of the assessment process.

27. It is the mother’s evidence that Dr C made a “preliminary diagnosis of ADHD” and decided to trial X on a course of Ritalin.[9]  The parties disagree about whether Mr Teagan was properly informed about the diagnosis and whether the manner in which it was done was appropriate. 

    [9]  See mother’s affidavit filed 17 August 2018 at [46]

28. From Mr Teagan’s perspective, he was informed of the diagnosis in a totally insensitive, inadequate and inappropriate manner, at the funeral of a close friend.  In his trial affidavit, Mr Teagan deposed as follows, in respect of the incident:

    “The way I was informed about the diagnosis and medication was in itself was … bizarre, the mother invited herself to the funeral of … a good friend of mine, and there while waiting in the chapel the mother shouts across the room to me ‘oh, by the way, X is on medication.’  I then asked what for? And all Ms Teagan would say was ‘impulse control’ … I didn’t even know he was seeing a paediatrician!”[10]

    [10]  See father’s affidavit filed 10 July 2019 at [51]

29. Ms Teagan does not dispute that the funeral was the occasion selected by her to inform Mr Teagan of the diagnosis.  With hindsight, she perhaps concedes that the issue could have been better handled.  However, it is her case that she suffers from longstanding anxiety and has extreme difficulty broaching anything important with Mr Teagan and the funeral was an occasion at which both she and the father were present. 

30. Mr Teagan is not the sort of person who responds passively to any significant incident.  He is a reactive person, who has an inclination to make his own inquiries.  In addition, given his essentially negative view of Ms Teagan, he invariably puts a sinister gloss on anything which she does.  In respect of what he had learned at the funeral, Mr Teagan deposes as follows:

    “I looked that up what ‘impulse control’ was when I got home from the funeral and its ADHD which is treated with narcotic type stimulants like Dexamphetamine.

    During the week of 26 & 27 May 2018 I researched the behaviour being displayed by the mother to try and understand why she would deliberately not want me to know important information about X’s education, health & wellbeing.

    The information regarding that behaviour was extensive.  I had no idea this sort of thing was going on and the personality disorder which all signs point to is a very scary silent destroyer of families by stealthy manipulation, effectively alienating a child, in this case X.”[11]

    [11]  See father’s affidavit filed 10 July 2019 at [52]–[54]

31. Again, the incident demonstrates the extremely different personalities of the parties, which leads them, in practical terms, to be fundamentally unable to have any constructive discussions about what is best for X.  The father’s propensity is to lecture the mother and think the worst of her, namely that she has some sinister plan to alienate X from him, even going to the extent of having the child pharmacologically restrained.

32. I do not consider that the mother is capable of such sophisticated planning.  Rather, she chooses the path of least resistance.  In the short term, it is easier for her simply to put her head in the sand, so far as Mr Teagan is concerned and tell him what she thinks he needs to know, at the easiest time available to her. 

33. She is not a sophisticated person and is not likely to be inclined to do her own research.  Rather, she does what experts tell her to do and avoids, for as long as she is possibly able to do so, any confrontation with Mr Teagan.  She is also not a person who is likely to relish confrontation and like many individuals will do what she can to avoid it, even if the process of such avoidance has the potential to make the inevitable confrontation worse.

34. For obvious reasons, such a strategy is destined to have disastrous consequences, as it generates an ever more toxic vortex of hostility and disagreement between the parties.  This hostility arises because the parties have fundamentally different ways of approaching life and coping with its vicissitudes. 

35. As a consequence, the parties view each other through a prism of hostility, which distorts their perception of the other.  The father is passionately concerned about everything to do with X.  His is an assertive and active personality.  He also has the most natural of human inclinations to consider whatever he thinks must be right and anyone who disagrees with him must be wrong.  This leads him to be self-opinionated.

36. The mother is also concerned about X, but she has a more passive personality.  She finds it difficult to cope with what she perceives as Mr Teagan’s aggression.  She responds intuitively by withdrawing from it.  She is thoughtless rather than malicious.  Like most people, she does not always respond well to criticism and she does not relish conflict.

1. Axiomatically, the combination is disastrous, particularly given the inherent controversy likely to arise between them as to how X’s special needs are to be best managed.  The father will push; whilst the mother will withdraw.  To utilise a hackneyed metaphor, the parties are stuck in a revolving door, which produces a great deal of energy, but only goes around in circles.

2. The court has no obvious mechanisms available to it, to improve the parties’ mode of communication.  This will require some mutual level of empathy between them as to the perspective and temperament of the other, which is only likely to arise through a process of experienced and intensive professional counselling, which neither party is likely to be inclined to pursue. 

3. As with most aspects of human interaction, neither is likely to be able to persuade the other, as to the righteousness of his/her perception of the situation, through the power of persuasion.  Sadly both perceive that they are the victim of the other’s unreasonable behaviour.

4. What happened next, in respect of X’s medication, confirmed Mr Teagan’s perception that, at best, Ms Teagan is a lax and unthinking parent, or at worst, one who is totally dismissive of his entitlement to be involved in X’s life and who is pursuing some sort of agenda designed to alienate the child from him, including enlisting pharmacological means to do so. 

5. Mr Teagan alleges that Ms Teagan left a strip, cut from the blister packet of Ritalin for him to give to X in his mail box, without any other explanation.  As perhaps could have been predicted, this precipitated outrage from Mr Teagan, who deposed as follows:

   “… the respondent mother had left a strip of pills, cut from the main blister pack in my letter box with nothing else, no box, no dosage instructions, no script, no prescription, no doctor information, nothing!!  Just the pills in a silver piece of a blister pack cut with scissors.”[12]

   [12]  Ibid at [67]

6. I can understand why Mr Teagan would be upset.  From his perspective, the least he had a right to expect was the name of the doctor who had prescribed the drug for his son, so he could attempt to consult with him about the issue, rather than being presented with a fait accompli, which from his perspective had been orchestrated by the mother. 

7. In these circumstances, I can understand why Mr Teagan would think that the mother had treated him with little more than contempt, particularly given the sensitivity arising for Mr Teagan of X being prescribed something which he (the father) considered to be a powerful and controversial drug.  Undoubtedly, the issue could have been handled much better and more sensitively. 

8. From Mr Teagan’s perspective, things went from bad to worse, so far as the medication was concerned.  It is his evidence that he was able to track down the identity of X’s paediatrician by contacting the child’s general medical practitioner, who advised him that X had been referred to Dr C. 

9. In this context, he discovered that X had been changed from Ritalin to “a much stronger drug called Vyvance”, which Mr Teagan understood was dexamphetamine.[13]  As he had done before, Mr Teagan undertook his own research into the drug, which led him to the view that it was potentially dangerous because of its potential to produce side effects.

   [13]  See father’s affidavit filed 11 July 2018 at [9]

10. It is Mr Teagan’s evidence that the drug did indeed produce severe adverse side effects for X, which he noted immediately.  These included him suffering severe stomach pains, which necessitated him being admitted to hospital.  He was greatly concerned that Ms Teagan had not noticed any of these symptoms.  From his perspective, although X is a “highly energetic child”, he does not believe that medication is necessarily the answer for his behaviour.

11. In these circumstances, Mr Teagan refused to provide the medication to X.  He also sought out Dr C to make known his concerns.  He remains critical of the mother in that firstly it is her perception that she missed the side effects and secondly, she did not inform him that X had to be hospitalised, when the side effects became pronounced.  The mother feels aggrieved that Mr Teagan will not abide by directions in respect of medication for X.

12. Dr C has provided the following history of X’s medication:

    “When X was commenced on a small dose of Ritalin his classroom teacher, Ms L, reported that there was a significant improvement.  X was much calmer, although he could still be restless at times.  X’s participation in school work increased quite significantly.  When X attended an appointment (with Ms Teagan) in June 2018 he was much calmer, and seemed to be much more cooperative and socially interactive. 

    Over the ensuing four months X was tried on different medications to see whether they would be any more effective than Ritalin.  One of the problems with Ritalin is that the period of action is only about four hours.  X was tried on Vyvance, but that particular medication was probably too strong for X.  X’s father, Mr Teagan, informed me that X had symptoms such as dizziness, headache, loss of appetite and trouble sleeping.  X licked his lips repeatedly, which can indeed be a side-effect of stimulant medications.”[14]

    [14]  See report of Dr C dated 16 November 2018 being annexure A to the mother’s affidavit filed 11 February 2019

13. It remains Mr Teagan’s view that his parenting style is more attuned with X’s challenging personality than is the more passive style of Ms Teagan.  He is also concerned that the mother is unnecessarily reliant on medication to assist her in managing X.  In this context, in conjunction with his initiating application to the court, he deposed as follows:

    “I am concerned that the mother is not coping with caring for X and as a result is medicating him.”[15]

    [15]  See father’s affidavit filed 11 July 2018 at [14]

14. On the other hand, it is Ms Teagan’s perspective that she has only followed appropriate medical advice, including from Dr C, in respect of X’s condition.  She refutes any suggestion that she was not properly overseeing X, whilst he was trialled on Vyvanse. 

15. It is her case that she ensured that the child remained appropriately hydrated and kept an eye on him responding quickly to his stomach pains.  However, regrettably, once again, she did not inform Mr Teagan promptly of the issue, which necessarily led to a worsening of the parties’ already disastrous parenting relationship.

16. The obvious interpretation open to me, regarding how Ms Teagan has chosen to approach the issue of the assessment and subsequent treatment of X’s special need, is that she feels that Mr Teagan is of no moment so far as these matters are concerned and she is entitled to do whatever she thinks is required to thwart his aspirations to be meaningfully involved in X’s life.

17. In my view, the evidence is unequivocal that Ms Teagan did contrive to exclude Mr Teagan from the important process of having X assessed and then treated by Dr C.  It cannot be said that Mr Teagan has ever indicated to her that he has no interest in these issues.  To the contrary, his conduct would indicate otherwise.

18. In these circumstances, I am concerned that it is self-serving and more than a little bit disingenuous for Ms Teagan to suggest that she did not tell Mr Teagan about the process of X being assessed because she feared Mr Teagan would lecture her about it. 

19. However, in her defence, Mr Teagan constantly casts Ms Teagan in a negative light and has difficulty in accepting the validity of any view she holds, with which he disagrees.  As I observed at the outset, this is a disastrous combination.

20. This difficult situation formed the background to Mr Teagan commencing the current proceedings, which he did on 10 July 2018, with Ms Teagan responding on 17 August 2018.  The case came into court, for the first time, on 21 August 2018.  At this stage, it seemed to me that it would be useful if the court obtained an expedited family report, directed principally towards the workability of the shared care regime then advocated by Mr Teagan.

21. Initially, it was the mother’s formal position that she and Mr Teagan should have equal shared parental responsibility for X, but he should live primarily with her.  In these circumstances, she proposed that X should spend time, with his father, on alternate weekends from the conclusion of school Friday until the commencement of school the following Monday, during school terms and for half of each school holiday. 

22. Ms Teagan also had some proposals for special occasions, which envisaged X spending Father’s Day and Mother’s Day, with the appropriate parent, and for Easter to rotate in complete blocks, between his parents, from Maundy Thursday until Easter Tuesday.  In light of what happened, at Easter in 2019, this is relevant.

23. In addition, Ms Teagan proposed that most handovers occur at X’s school; each party be at liberty to obtain school information, in respect of X and to attend the usual school events; and for the parties to be restrained from denigrating or abusing the other.  Ms Teagan did not have any specific proposal as to how information, pertaining to X, was to be exchanged between the parties. 

24. In response to the father’s criticisms of her, that she had not kept him informed about significant issues to do with X, Ms Teagan deposed as follows:

    “The father complains that I do not keep him advised at all times in a prompt manner in respect to matters involving X. 

    I say that it is a two way street.

    The father is frequently unable to collect X from school and will arrange for his father to do so or try and change the handover times until the end of sports practice.  He has even suggested my parents have the child and he will collect X from them.

    Whilst I have no issue with the paternal grandfather collecting X, it can be an issue when neither X nor I have any idea who will be collecting him and when, unless I ask. 

    The father’s usual tone of communication with me is very hectoring.  I find it difficult to cope with this attitude and it makes trying to negotiate very fraught, especially in front of X.

    I suffer from anxiety and am on a waiting list to see a counsellor for the same.  Most of my problem is caused from having to deal with the father’s attitude to communication with me.”[16]

    [16]  See mother’s affidavit filed 17 August 2018 at [16]–[21]

25. On 21 August 2018, the parties were able to agree on a regime of care, for X, whilst the family report was prepared.  The orders provided as follows:

    “That both parties have shared parental responsibility for the child X born in 2011.

    That X live with the father on the following basis:

    a.  From the conclusion of school Friday (or 3.10pm) until the commencement of school the following Monday (or 9.00am) and each alternate week thereafter commencing Friday the 24 August 2018.

    b.  From the conclusion of School Tuesday (or 3.10pm) each week until the commencement of school Wednesday (or 9:00am) commencing Tuesday 21 August 2018.

    c.  For one half of the October 2018 school holidays from the conclusion of school on the first Friday 28 September 2018 until 5pm on the second Friday 5 October 2018 of the school holidays, provided that the father is on annual leave or otherwise available to personally care for X or the paternal grandparents are available.

    That the said child live with the mother at all other times.

    That the said child will spend no less than 3 hours with the mother on the said child’s birthday from 3pm until 6pm in 2018.

    That the said child will spend time with the father from 10am until 5pm on Father’s Day in 2018.

    That all communication be via text message in writing.

    That all handovers which do not occur from school with the mother to collect the child at the commencement of her period from the front of the father’s home and the father to collect the child at the commencement of his period from the front of the mother’s home.”

26. The family report was ordered in anticipation of a final hearing being scheduled to commence on 1 August 2019.  Regrettably, although the family report was prepared in the timeframe anticipated, the final hearing could not be held due to the pressure of other business requiring the court’s attention.  As a consequence, the final hearing was rescheduled for 29 January 2020.

Other issues

1. The orders made by consent on 21 August 2018 did not make any provision for Easter.  Perhaps naively it was thought that the parties would be able to work out the necessary arrangements, particularly in the light of Ms Teagan’s response.  This did not prove to be the case. 

2. It is the father’s position that he and his family habitually travel to Town M, each Easter, from Maundy Thursday until the following Tuesday.  From his perspective, this is an important time for X to spend time with E and F and X himself, looks forward to the time. 

3. From Mr Teagan’s perspective the time camping at Town M is useful for X to develop a sense of self-reliance.  In this context, he points to the fact that during his last holiday away with him, X was able to graduate to being able to ride a bicycle, which was a good thing for his self-esteem.

4. Mr Teagan has deposed his view that Ms Teagan was well aware of this fact but elected to derail his plans, notwithstanding the fact that he had informed her, on 26 January 2019 that he had taken holidays for the period in question and was willing to allow her to have the full block of Easter in the following year, in accordance with her final proposal. 

5. It was Ms Teagan’s view that Easter, during 2019, should be divided between the parties.  From Mr Teagan’s perspective, this was impracticable, given that he had made arrangements in respect of his other two children and was not in a position to drive to and from Town M, in the middle of Easter. 

6. In these circumstances, in the absence of a formal order, he elected to take X to Town M on Maundy Thursday.  In this context, the mother filed an urgent application for a recovery order on 18 April 2019, which was made returnable on 30 May 2019, long after it could have had any utility.  Again, each party asserts that their behaviour, in respect of the incident, was entirely reasonable. 

7. Mr Teagan describes X as being distraught at his perception that his mother was intent on obstructing him going to Town M.  In this context, Mr Teagan deposes as follows:

   “X was in tears and so upset and had me in tears also.  I couldn’t bear to see him like this and he told me that he was going to hate his mum forever if he didn’t get to go and that he would hate me forever if I took him to his mums house because he knew that meant he would not go camping.  Clearly this was not in his best interest. 

   …

   I was left in a difficult situation and did what I believe was in X’s best interests.”[17]

   [17]  See father’s affidavit filed 28 May 2019 at [25]–[26]

8. Needless to say, that meant not returning the child as scheduled and later taking X with him to Town M with a cascading flow of consequences, not the least of which was the parties’ parenting relationship reaching a fresh nadir.

9. From the mother’s perspective, she was not being obstructive, as what she had proposed was fair but the father nonetheless elected to ride roughshod over her, yet again.  It is her case that it was inappropriate for the father to have unilaterally told X about the plans for the Easter trip, when there was no formal order in place. 

10. From Mr Teagan’s perspective, there was an agreement in principle based on the alternate yearly sharing of the entire period of Easter and it was axiomatically in X’s best interests that he have a fun holiday with him and his older sisters. 

11. I find the whole incident perplexing.  Each party seems to have approached the issue without any thought for the feelings of the other.  Mr Teagan has a point – he had raised the issue of the holiday well in advance and arranged to take the time off.

12. Ms Teagan has a point too.  It was inappropriate that Mr Teagan acted in such a unilateral fashion.  Again, the whole matter seems to have been terribly mishandled as a consequence of the parties’ inability to communicate clearly with one another and feel any empathy for the position of the other, still yet X.  Although Mr Teagan would clearly like me to ascribe fault, for the impasse, I do not feel able to do so.

13. The mother was aware that the Easter trip was particularly important to Mr Teagan.  However, Mr Teagan did not have Ms Teagan’s clear imprimatur to take X with him.  I accept that the child had a good time.  However, once again the discord between his parents cannot be regarded as helpful for X or a satisfactory harbinger regarding how the parties can manage issues in respect of care arrangements for X.

14. Other controversies have arisen regarding handover arrangements for X, particularly the involvement of X’s paternal grandfather and his interaction with the maternal grandmother.  From Mr Teagan Senior’s point of view, Ms Teagan Senior has been directed by the mother to be difficult and obstructive at handover, sending him away if he is fractionally early to collect X. 

15. Again, in my view, it is unnecessary for the court to attempt to unpack this controversy in any great detail.  Rather, once again, it is emblematic of the deep seated discord between the paternal and maternal aspects of X’s family, which has seen relatives aligning with those who share blood ties against the opposite aspects of X’s family. 

16. One aspect of the case, which concerns me, is that, I hope mistakenly, I apprehend that there is a certain level of relish at the prospect of conflict arising.  It is to be hoped that grandparents, being older and hopefully wiser, will provide a steadying influence in this regard.  This does not appear to be the case in the present matter.

17. In this context, it is Mr Teagan’s perception that Ms Teagan (and those associated with her) are intent on making his life, particularly in terms of him maintaining his relationship with X, as difficult as possible.  It is his position that Ms Teagan is passively resistant to him spending time with X and as a consequence she personally is not fulfilling her obligations, incumbent on a parent, who is subject to a time spending order. 

18. In Stevenson v Hughes[18] Fogarty J expressed the duty as follows:

    “It is important…that custodians appreciate that they are not entitled to treat the other party as an enemy who are to be thwarted wherever possible either by active steps or passive resistance.”

    Rather the duty concerned involves active obligations incumbent on a parent to encourage a child to spend ordered time with the parent and if necessary direct the child to attend in compliance with the relevant court order.  Positive encouragement and support are what is required not token efforts or the subliminal conveyance to a child that they have a choice to make about time spending and what that choice should be.

    [18]  Stevenson v Hughes (1993) FLC 92-363 at 79,816

19. This is the essence of the father’s case.  It is his perception that the mother is inclined to suggest subconsciously, by her influence and attitude to X, that he is not important to X and in this way the child’s paternal relationship will be either subverted or reduced from what should be its proper level.  These feelings have led him to the perception that he must fight for X.

20. On the other hand, the mother is rendered apprehensive by what she perceives as the father’s unduly aggressive and assertive presentation of his agenda regarding X and fears, at a visceral level, that Mr Teagan is intent on taking X away from her.  These feelings have led her to the perception that she must resist Mr Teagan.

21. On 9 May 2019, X was assessed by a speech pathologist and psychologist, at Headstart, in order to determine whether he met a diagnosis of autism spectrum disorder.  It is Ms Teagan’s evidence that she learnt of the appointment, at the last minute and in these circumstances, as by this stage all correspondence between her and Mr Teagan passed through her solicitor, she did not have an opportunity to inform him of the appointment and therefore Mr Teagan did not attend.

1. Ms Teagan’s solicitor, informed the father of the assessment, after it had occurred, by email on 13 May 2019.  Needless to say, Mr Teagan was upset and refuses to believe that it was an oversight.  Rather, from his perspective, it is another example of the mother keeping medical information, regarding X from him.  Again, the issue could have been handled much, much better.

2. Ms Teagan is not so naïve as to consider that Mr Teagan would not be deeply aggrieved that he had not been informed of the appointment.  She also knows him well enough to know that he will automatically think that she has some form motivation for keeping him out of the loop.

3. Clearly, in the age of mobile phones and instantaneous electronic communications, she could have informed Mr Teagan of the appointment.  I am concerned that she took the path of least resistance, which was not to try too hard to get the required notice to Mr Teagan.  This, in my view, was not the sort of issue which should have been left to a lawyer, given its obvious significance.

4. In the assessment, as indicated earlier, it was found that X’s presentation did meet the criteria for autism spectrum disorder.  As a consequence, X is entitled to a package of support pursuant to the National Disability Insurance Scheme (“NDIS”).

5. In the assessment, X was found to have a strong intellectual profile.  He was described as having particular strengths in the understanding of verbal/visual/spatial concepts.  The assessors noted that he is likely “to respond best to clear rules and expectations”.  In addition, it was said that X may find it difficult to “readily understand someone else’s perspective.”[19]

   [19]  See Confidential Dual Diagnostic Assessment Report and Intervention Plan dated 8 May 2019 at page 21

6. From Mr Teagan’s perspective, one of the difficulties of the diagnostic report is that he was not involved in its compilation.  In this context, Ms Teagan reported to the assessors as follows:

   “Ms Teagan notes that he (X) has very different approaches when he is at his father’s place or at her place, and X has reported that he has ‘learnt the rules’ at his father’s place.  Ms Teagan suspects that Mr Teagan would likely have very different observations to her, because X might have a very different way of interacting there.”[20]

   [20]  Ibid at page 11

7. In the assessment process, Ms Teagan admitted that she found that she often pandered to X, because his behaviour was so volatile.  She found being strict with him did not work and punishments had little meaning, as given X’s poor attention span, he very often could not attach any punishment to the behaviour which had precipitated it.

8. I can understand why Mr Teagan would feel upset that he was not able to provide his insights into how X behaves at his home and how he responds to the more challenging aspects of his behaviour and this was not likely to be helpful for X because the assessor did not have a composite picture of him. 

9. In this context, it is interesting to note that Mr Teagan has conceded that he has noted many aspects of his personality in X.  This is, of course, only to be expected but also emphasises the importance of X maintaining a strong and meaningful level of relationship with his father.

10. The report also provided anecdotal evidence, from X’s school, that he does not cope well with change, even in minor aspects.  He is also described as a fussy eater and needs environmental triggers, relating to music and smells, to help him perform tasks.  As such, he is not likely to be a child who copes well with change.

11. Dr C has reported that X continues to receive medication.  Presently, X is receiving a drug known as Concerta, which both parties agree seems to be assisting X.  To his credit, Mr Teagan acknowledged that this pharmacological approach, to X’s special needs, has been appropriate, notwithstanding his initial reservations about it.  It is also the case that he has formed something of a working relationship with Dr C.

12. Dr C reported as follows, in respect of X:

    “At the end of the day it appears that X has two problems.  The greater of the problems seems to be his personality, which leads him to be argumentative and disrespectful towards authority.  This is what keeps leading him into trouble.  The lesser of his problems may well be comorbid ADHD for which he has some benefit to stimulant medication.  The ADHD medications allow a child to concentrate better, have more thinking time about making decisions, and reduce impulsive behaviour, but these medications do not reduce aggressive reactivity, and they do not change ones attitude.”[21]

    [21]  See Dr C’s report dated 16 November 2018

13. In all these circumstances, although Dr C will continue to see X and provide him with some medical and pharmacological support, it is likely to be the case that ongoing psychological treatment, particularly the cognitive behaviour therapy aimed at changing his behaviour, is likely to be the most useful ongoing intervention for him.  It is also likely that X will require intensive and additional supervision at school, to avoid him being disruptive. 

14. More recently, on 15 July 2019, Dr C noted the positive diagnosis that X was suffering from autism spectrum disorder, which is now to be regarded as X’s primary diagnosis.  Dr C has prescribed some further medication to assist with X’s concentration span.  This may be calming and may reduce his aggressive reactivity.

15. It remains Dr C’s view that the ongoing treatment of X remains complex.  In this context, he wrote as follows:

    “Medical management of X remains additionally challenging due to the poor communication between his parents.  From this point on I presume that there will be involvement of various therapists funded under NDIS, and so the amount of information required to be shared between X’s parents will increase substantially.”

The family report and the evidence of Ms D

1. The family report was prepared by Ms D, a clinical psychologist with a wide range of experience in the treatment and assessment of children, including in a therapeutic and child protection setting.  In addition, she has experience in the assessment and diagnosis of children with autism.  She has been a family report writer for around two years.

2. From Ms D’s perspective, the most significant issues in the case turned on the poor quality of the relationship between the parents concerned and how best to manage X’s special needs, given the early indication of ADHD and the more recent diagnosis of autism.  In her assessment, this combination of factors made the future parenting of X likely to be very challenging.  I agree with this assessment.

3. Ms D had a significant advantage, over me, in this case, given that she was able to observe X interact with each of this parents and so form a visceral appreciation of the parties’ respective parenting capacities through observing each of them interact with X. 

4. Essentially, she got to see how each parent coped with X, in the unfamiliar setting of the observation room which was not likely to be calculated to allow X to present in his calmest manner.  Rather, it is apparent X demonstrated a full complement of behaviours, some of which were challenging and to which each parent had to respond, under the scrutiny of Ms D.

5. All family reports have an aspect of artificiality about them.  The time available to conduct them is limited and obviously both parents and children can present in different ways on different days.  However, they still form the best mechanism for an expert to provide evidence as to the nature of a child’s significant relationships.

6. From Ms D’s perspective, her observation of how each parent dealt with some of the more challenging aspects of X’s behaviour was telling, particularly given the impression she had gained of the nature of the relationship between Mr Teagan and Ms Teagan from individual interviews with each of them.

7. Ms D’s impression of Mr Teagan’s view of the mother was “very negative” in nature.  This is consistent with how he has portrayed her in his affidavit material to the court and generally in his oral evidence.  It remains clearly Mr Teagan’s view that he is by far the better parent.

8. Interestingly, Mr Teagan indicated to Ms D that he saw one of his central roles, so far as the parenting of X was concerned, as being to inculcate in him a sense of values, which coincide with his own.  In this context, Mr Teagan alluded to his own childhood, which he described as being fair but strict. 

9. To Ms D, Mr Teagan described Ms Teagan’s parenting as being “lazy with no behaviour management”.  He indicated to Ms Teagan that he had concerns that perhaps X had not been accurately diagnosed but rather was a child who “thinks differently” to the norm.  In this context, he expressed concerns about the child’s medication, whilst acknowledging his recent prescription did seem to have assisted X to “stop and think more often whilst at school”. 

10. Overall, as in the current proceedings, Mr Teagan indicated to Ms D that his greatest concern was that Ms Teagan was attempting to alienate X from him, which he attributed to Ms Teagan’s traumatic childhood and the fact that she had an “undiagnosed personality disorder”.  In these circumstances, he attributed her alienation as “trying to be protective of X due to her own adverse experiences.” 

11. Ms Teagan reported to Ms D that she believed that X required “a lot of routine, consistency and support”.  Ms D agreed with this assessment and, in her oral evidence, indicated that in an ideal world X would be able to move between two households, which were consistent in their attitude to discipline.  At this stage, given the respective attitudes of the parties, Ms D did not consider that this was a probable outcome, at the current time. 

12. Ms Teagan rejected Mr Teagan’s claim, put to Ms D, that she did not enforce behavioural management strategies for X.  The implication being that she did so in a different way to him.  In this context, Ms Teagan indicated to Ms D a belief that she and Mr Teagan “had different parenting styles”.  In respect of discipline, Ms Teagan reported to Ms D as follows:

    “… She believed that they had different parenting styles, and that whilst he enforced boundaries and consequences, that she had read a lot of parenting books from a child’s point of view.  She believed that it was not right to punish a child for behaviour later that night, and that something had to be enacted immediately, such as removal of videogames or movies.  She and X enjoyed playing Pokemon, but if he misbehaved he was not able to play the game.  She acknowledged that X did not respond, but added that he did not respond to anything and that he lived in the moment, such as by repeating the same behaviour 20 minutes later.  She acknowledged that she also picks her ‘battles’ and that she sometimes let things ‘slide’.[22]

    [22]  See family report dated 4 December 2018 at [58]

13. In terms of the parties’ co-parenting relationship, Ms D assessed it as being ineffective and characterised by a high level of conflict.  The most tangible aspects of the conflict being Mr Teagan’s negativity towards Ms Teagan which was reciprocated by Ms Teagan feeling anxious and intimidated by Mr Teagan.  This accords with my own impressions and findings in respect of the parties. 

14. Ms D found it extremely difficult to engage with X because of his extreme level of activity and the fact that he was very easily distracted from engaging with her.  Ms D was however able to ask X what he would want, if granted three wishes, to which he replied:  a toy laser gun; a family that gets along; and to go to the North Pole.  In the context of his wishes he acknowledge that his family had split up and this made him feel sad.

15. Axiomatically, from these comments, Ms D formed the view that the current circumstances, particularly the endemic level of conflict between his parents, had been difficult for X.  Sadly, this assessment appears unmistakeably correct. 

16. As I indicated above, the fact that Ms D was able to observe X directly with each of his parents renders her report a most significant piece of evidence.  It resulted in Ms D being able to observe how the parties approached the management of X in significantly different ways.  In my view, this is a very significant finding indeed. 

17. X was excited and happy to see his father, calling him daddy.  Mr Teagan reminded X not to shout when X raised his voice.  Ms D went on to describe the interaction between X and the father in the following terms:

    “X and Mr Teagan engaged well with age appropriate activities at times, and they laughed together, with Mr Teagan praising him at times and giving him high fives.  Mr Teagan, however, did not always comment on X’s misbehaviour.  Whilst X enjoyed throwing rings from a ring toss game back and forth, Mr Teagan did not comment for some time about how hard he was throwing them, or when one ring hit the mirror hard, before eventually telling him to stop.  He also did not respond when X threw other objects around the room at times. 

    The family moved into the childcare room to include E and F in the session.  They all engaged well for some time whilst playing a card game, with X’s sisters engaging with X appropriately.  X seemed to focus well at times, but also seemed to want to enforce his own rules.  Whilst Mr Teagan told X to ‘chill’ and to ‘listen’, at other times it seemed as though he and X were arguing.  X made comments such as ‘I’m not’ and ‘I don’t really care’, with Mr Teagan making comments such as ‘you’re not listening are you?’  Mr Teagan also seemed annoyed when X crawled under the table to see what card Mr Teagan had, questioning why he had to go out of his way to cheat.  Mr Teagan told him off for cheating, and commented that it was why children at school did not want to play with him.  Mr Teagan also asked X if they were going to ‘have a repeat of school’ when X did not follow the rules of the game.”[23]

    [23]  Ibid at [75]–[76]

18. In his questioning of Ms D, Mr Teagan took exception to this account and described it as being “biased” against him.  It is his position that he responded appropriately to X’s behaviour, whilst playing the card game Uno.  From Mr Teagan’s perspective, it was appropriate that he provide X with a “life lesson” in respect of the perils of cheating at games, with other children.  In cross-examination, Ms D conceded that Mr Teagan might have a point in this regard.

19. What is clear from this aspect of Ms D’s evidence is that X and Mr Teagan love one another – this is apparent from X’s excitement from interacting with his daddy.  It is also apparent that X, E and F have a close relationship.  Clearly, each of these relationships are central to X’s emotional well-being.  In interview with Ms D, E and F presented as being genuinely desirous of wanting to maintain regular contact with X.

20. Ms D described the observed session between X and Ms Teagan in the following terms:

    “Ms Teagan and X spent the majority of the session playing a board game.  Ms Teagan placed appropriate limits on X’s behaviour, and she remained calm, patient and consistent throughout.  X also responded well to her, and he remained calm for the majority of the session.  Ms Teagan commented appropriately when X threw things, when he raised his voice or did not speak nicely.  She also checked whether he was paying attention by asking if he heard ‘mummy’ and asking what she had said.  She also asked him for a ‘little more information’ so she could follow his conversation when unclear.

    Ms Teagan also assisted X to problem solve by using his mathematical skills, and praised him for doing so.  She also redirected him by reminding him to use ‘good words’ and said that he had a ‘big vocabulary’ when he briefly made screeching sounds. 

    X became slightly annoyed after a toilet break and accused Ms Teagan of cheating whilst he was away.  She remained calm and asked him if she ever cheated or lied to him, to which he said ‘no’, and eventually accepted her response. 

    X also complied when Ms Teagan asked X to assist with packing up.  Ms Teagan was observed to speak positively to the writer and childcare worker about Mr Teagan in front of X when mentioning a cruise they had previously gone on.  X seemed content to leave the session with Ms Teagan.”[24]

    [24]  Ibid at [79]–[82]

21. What struck me about this evidence was the fact that Ms Teagan, as with Mr Teagan, also had to manage difficult aspects of X’s behaviour, in the same environmental context.  She was positive about Mr Teagan in her comments to X.  She praised X for some aspects of his behaviour.  Above all, she was calmer and more measured in respect of how she engaged with X.

22. Ms D also spoke with a number of staff members, at the Suburb G Primary School, in respect of X’s performance at school.  It was reported that X struggles socially and does not have any particular friends as other children are weary of his impulsive conduct.  His classroom teacher reported that X was aggressive, loud and disruptive during class time.  Sadly, X continues to be subject to regular suspensions.

23. Staff at the school were also able to present Ms D with some objective information about how the parties interacted, with one another and X, in the school setting.  In this context, Ms D reported as follows: 

    “The school believed that X’s parents interact well with X whilst at school, but were unable to comment outside of school.  It was noted that once when Mr Teagan collected X from school when suspended that he was appropriate, but was heard to comment that he would not get paid on that day when leaving the school grounds.  Both parents attended a school meeting recently and the school were aware that Ms Teagan experienced fear in relation to being around Mr Teagan, which Mr Teagan was unable to understand.  They recalled that Ms Teagan shook and presented as nervous in Mr Teagan’s presence, but that he had not presented aggressively.  The school felt that X was in a difficult position caught between his parents who seem unable to agree to a solution, such as having been in dispute in relation to his medication previously.  …

    The school has not noticed a change in X’s behaviour or presentation dependent upon being cared for by either parent.”[25]

    [25]  Ibid at [95]–[96]

24. The important things I draw from this evidence is that the quality of X’s behaviour does not vary depending on whose home he has been at.  It is also noteworthy that Ms Teagan’s anxiety does not depend on actual displays of aggression from Mr Teagan.

25. In my view, Ms D approached the task allocated to her with both rigour and professionalism.  Mr Teagan is entitled to assert his view that she pre-judged him on the spurious basis that he was late to the assessment and her personal disagreement with what he concedes is his old school approach to parenting, as displayed by how he reacted to X’s behaviour in cheating at Uno.

26. However, I could find no evidence to support the assertion of bias made by Mr Teagan.  Rather, his allegation in this regard is more consistent with his propensity to criticise those who disagree with him.  In her report, Ms D strongly disagreed with Mr Teagan’s view that shared care would be a suitable parenting arrangement for X, whilst agreeing with Ms Teagan’s view that such an arrangement would be too disruptive for the child. 

27. In her evaluation, Ms D characterised X as being a complex child, who presented challenges so far as the determination of appropriate care arrangements.  She also considered that his behaviour would remain challenging for the foreseeable future. 

28. From her perspective, an equal time arrangement, for X, was counter indicated for two major reasons:

    ·The parties’ different approaches to parenting were likely to be confusing for any child, particularly one such as X, who experienced complex emotional and behavioural difficulties; and

    ·The parties’ co-parenting relationship was characterised by a high level of conflict, which was unlikely to abate in the foreseeable future. 

The additional considerations

a)     The child’s views

1. The applicable legislation requires me to consider any views expressed by the child concerned and any factors which may affect the weight to be given to those views, such as the child’s maturity or level of understanding.  The legislation speaks of views rather than wishes.  The latter is a more concrete concept; the former is more addressed to perceptions and feelings.[34]

   [34]  See Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006 at paragraph 56

2. X was a little over seven years of age, when interviewed by Ms D.  He was not an easy child to engage.  As such, it was not possible for Ms D to explore with X whether he had any concrete preferences regarding his future living arrangements.  Accordingly, this is not a determinative factor in the case.

b)      The nature of the child’s relationship with each of his parents and significant others

1. I accept that X has a close and loving relationship with both his mother and father.  He has a clear sense that both his mother and his father are his family, notwithstanding the fact that the parties concerned separated many years ago, when X was four. 

2. In addition, it is the case that X has close relations with grandparents on both his paternal and maternal sides.  These relationships are important because of the work obligations of both parents.  In addition, grandparents are important to children in giving them a sense of where they fit in in their wider family and the history of that family.  The same can be said of cousins and uncles and aunts. [35]

   [35]  See Bright v Bright (1995) FLC 92-570

3. Finally, I accept that X currently has very important relationships with his siblings E and F, notwithstanding they are somewhat older than him and so likely to have their own interests and friends outside the home.  Nonetheless siblings are important to all children because relationships between brothers and sisters have the potential to last a lifetime.

4. In all these circumstances, whatever orders are ultimately made need to recognise the importance of the maintenance of these relationships, for X, particularly in the context of how time spending arrangements are finally configured.

c) The extent to which each of the parents has taken or failed to take the opportunity to be involved in decision making and to spend time or communicate with the child

1. This is a vexed issue for the parties.  From the father’s perspective the mother has foiled his desire to be involved in decision making for X.  There is evidence to support his view, which indicates that the mother has acted unilaterally in respect of educational and medical issues relating to X.

2. In my view, notwithstanding the mother’s justifiable view that Mr Teagan is inclined to hector about issues to do with X and does not easily entertain any opinion, which is contrary to his own, this is not good parenting.  The evidence also indicates that Mr Teagan has made worthwhile contributions in respect of X’s care, including in the realm of decision making.

3. In my view, his desire to continue to play a part in this regard is a powerful reason to support the formal conferral of some form of parental responsibility notwithstanding its potential to provide a forum for the parties to ventilate their mutual frustration with one another.  As I have previously indicated, this is not a case concerned with one very interested parent and one who is essentially disinterested.

ca)    Provision of financial support for the child

1. Neither party has approached the case on the basis that the other had been derelict in the provision of financial support for X.

d)     The likely effect on the child of any changes in his circumstances

1. A move to shared care or a change in the predominant place of residence for X would be a major change of circumstances for X, which could not be justified given his special needs.  As noted in the Autism Assessment Report, X is not likely to be a child who copes easily with change.

2. This is a major factor which militates against a shared care regime or a change in primary carer, particularly in the context of Ms D’s assessment that Ms Teagan has a gentler and more intuitive response to X’s special needs than does Mr Teagan.  In addition, in my view, this is also a powerful reason not to unduly increase his time with his father at this juncture.

e)     The practical difficulties and the expense of the child spending time and communicating with each of his parents

1. The parties currently live in close proximity to one another in suburban Adelaide.  This is not a relevant consideration in the case.

f)      The capacity of the parents to provide for the child’s emotional and educational needs

1. The parties have different outlooks in respect of all manner of things, including how best to cater for X’s emotional and educational needs.  In my estimation, one parent does not have a superior level of insight in regard to these matters.  Rather they both approach them in the light of the natural parenting instinct of wanting the best for X.

2. Mr Teagan is likely to do his own research in regards to such matters.  Ms Teagan will follow professional advice provided to her.  As such, each is likely to bring something to the table in respect of supplying these needs for X. 

3. I do not dismiss the possible benefits arising for X of Mr Teagan’s structured approach to discipline and parenting.  Nor do I dismiss the approach taken by Ms Teagan, although she herself concedes that X gets away with things because she panders to him.

4. On any view, the on-going parenting of X will be challenging for the foreseeable future.  It will be helpful to each of them if they can work out some way of sharing the load, given that it is likely that each of them will bring something different to the care of X.

g)     The child’s maturity, sex, lifestyle and background

1. The parties share a similar background and have complementary aspirations for their child.  X’s age is a relevant consideration.  He is a child of primary school age.  Otherwise the matters which arise for consideration under this criterion are not applicable in the case. 

h)     Aboriginality

1. This is not a relevant consideration in the case.

i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the parties

1. I accept that both Mr Teagan and Ms Teagan aspire to being the best possible parents for X.  It is my finding that neither has ever shirked their responsibilities towards the children.  They are good parents, who want the best for their child.  They are however quite different in how they go about the task of parenting.

2. In addition, it is trite but true nonetheless, that marital breakdown frequently leads to changes in how parental obligations are discharged in the family concerned.  It is a common phenomenon that a parent, particularly a father, wishes to approach parenting differently following separation.  Such changes may be a result of either necessity or personal preference.

3. Prior to separation, it is Ms Teagan’s case that she performed the majority of the parenting duties for X.  Given his age at the time and Mr Teagan’s role as the family’s main breadwinner, which he did through self-employment, this is likely to be true.  In addition, Mr Teagan concedes that, in the period after separation, given X’s age at the time, he recognised that it was better that he continued to remain in his mother’s predominant care.

4. That does not mean he was disinterested in X.  To the contrary, I accept Mr Teagan aspires to be fully involved in every aspect of X’s life, including his education and how his special needs are catered for.  In order to meet this aspiration, he needs to be kept appraised of each relevant development so far as X is concerned.

5. Mr Teagan should have been involved in the autism assessment process.  He should not have been informed of the medication of X in the manner in which he was.  He was entitled to be given more information, in respect of what turned out to be an unsuitable medication for X, than to be left with a portion of a cut off blister packet.

6. At worst, the only interpretation of such behaviour is that Ms Teagan has unbridled contempt for Mr Teagan and regards him as a person to be thwarted at all costs.  Certainly, this is Mr Teagan’s view and, as his essentially negative view of Ms Teagan, as expounded in these proceedings, has demonstrated, he is more than capable of reciprocating this attitude in spades.

7. However, there is a better interpretation, which I consider more likely, and it is that Ms Teagan just did not think about the issues; took the path of least resistance in respect of them – essentially avoiding the possibility of exposure to a confronting situation; and has a limited capacity to empathise with Mr Teagan.

8. In my view, this is the saddest aspect of this case and the most worrying one from X’s point of view – the parties’ inability to consider what it is like to be in the shoes of the other parent and reflect, even for a moment of the things they have in common, principally their love for X.

9. It is part of the responsibility of being a good parent to encourage and support a child to have the best possible relationship with the other parent concerned.  A good parent also shares information so that appropriate decisions can be made.  I am concerned that Ms Teagan has not always lived up to this aspiration.

10. It is also a part of a parent’s role, including in a difficult post-separation parenting relationship, to portray the other parent in a positive light.  Children love each of their parents.  It is confusing to them if one much loved parent criticises or denigrates the other much loved parent. 

11. Children do not have the intellectual or emotional maturity to denature such criticisms which are potentially emotionally harmful to them.  Both parties could do better in this regard by bearing in mind, at all times, that the disputes between them are their disputes, not X’s.

j)      Family violence

k)     Any family violence order

1. There is no applicable family violence order in these proceedings.  For reasons already outlined, I do not consider that this is a case concerned primarily with issues to do with family violence.  Although Ms Teagan describes Mr Teagan as being a pushy or domineering person, who has subjected her to denigration and these are behaviours which can fall within the rubric of family violence, I do not consider that one party coerces and controls the other exclusively.  The parties are locked together in a mutual struggle for control.

l)      Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings

1. Finality is generally preferable in children’s cases.  Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned.  In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation. 

2. The parties’ relationship is difficult and marked by a distinct lack of empathy for the other.  They are in competition with one another in respect of many issues to do with X, which has led each of them to be highly critical of the conduct of the other.  These are not good harbingers for the avoidance of further litigation.

3. Mr Teagan, in particular, has demonstrated that he is a determined litigator.  It cannot have been easy for him to have had to have prepared his own documents and continue on with his case in the light of Ms D’s recommendation.  In addition, all interventions directed to assisting the parties to reach some form of accommodation with one another have been conspicuous in their failure.

4. If Mr Teagan is removed from the capacity to exercise parental responsibility for X, he will view it, inevitably, as a significant miscarriage of justice; particularly, with some justification, it is his perception that it is Ms Teagan who has excluded him from performing his proper parental decision-making role for X.

5. In these circumstances, it seems inevitable that he will be filled with resentment at such an outcome and pursue any mechanism available to him to redress it.  On the other hand, it seems unlikely that any great capacity to reach consensus will descend on the parties any time soon. 

6. Accordingly, I am left with the feeling that I am damned if I do and damned if I don’t in respect of the conferral of parental responsibility as a mechanism for avoiding further litigation.  If the parties do have to consult with one another, in respect of major long term decisions, there is a very good chance they will disagree about the appropriate outcome and therefore the court will be called upon to adjudicate the issue.

7. On the other hand, I am concerned that if there is some form of direction requiring that Ms Teagan provide information to Mr Teagan but leaving her with the ultimate responsibility for making any decision concerned will be unworkable in practice because it will be more honoured in the breach than the observance because Ms Teagan will not be as proactive as she should be in providing information to Mr Teagan.  

8. On balance, I consider that conferring some aspect of parental responsibility on Mr Teagan is the option least likely to lead to more litigation, although I concede that such a conferral will not be without its challenges.

Summary of Best Interest Factors

1. In summary, I do not consider that the various factors arising under section 60CC justify a change of primary residence arrangements, for X, at present. Given his special needs, he is not a child who will adapt easily to any significant change in his care arrangements.

2. Although there are significant problems in the parties’ relationship as parents, the evidence indicates that X’s primary needs are being properly met by his mother at present.  She may not always have been exemplary in how she has conveyed information about X, to Mr Teagan; however she is, in my assessment, a good parent.

3. The more difficult aspect of the case turns on what are the appropriate arrangements for X to spend time with his father, given the love X holds for his dad and Mr Teagan, in turn, obviously holds for X.  Related to that issue is how decision making responsibilities should be conferred on the parties given the fact that they do not communicate effectively and, quite bluntly, do not like each other.

Equal shared parental responsibility

1. This issue turns, in practical terms, on whether the presumption of equal shared parental responsibility is rebutted in this case on the basis that it would not be in X’s best interests or as consequence of issues related to family violence or neglect of the child.

2. For the reasons already provided, I do not consider that either parent would willingly expose X to any form of neglect or abuse and their parenting relationship, although highly problematic is not one which is characterised by family violence.

3. The issue for the court therefore is whether the parties’ relationship is just so problematic and so conflicted that it would simply not be in X’s best interests to confer joint parental responsibility on them.

4. Each of X’s parents love him.  However the time he spends with each of them is ultimately configured, it seems clear that he will spend significant periods of time in each of their households.  I am also satisfied that each of them has much to offer X, as he grows and develops.

5. I also consider that, given each party is fervently interested in every aspect of X’s care, welfare and development, it would not be helpful to him if one parent feels that he or she has been placed in a position of ascendancy over the other parent.  In these circumstances, I do not consider that the presumption has been rebutted.

Conclusions

1. The next issue which arises concerns what should occur, in practical terms, regarding how X’s time, with each of his parents, should be allocated, given the application of the presumption. 

2. This is likely to be the issue of most moment to each of the parties concerned, for obvious reasons.  From Mr Teagan’s perspective, he wants to spend as much time as possible with X, whilst Ms Teagan is of the view that the time should be restricted.

3. In Taylor & Barker[36] the Full Court indicated that the options of children spending equal time or substantial and significant time, with each parent, must be given separate and real consideration by the court.  As such, the court must be careful not to potentially devalue the legislative imperative placed upon it, to consider the alternative outcomes arising under section 65DAA, in cases where the presumption applies.

   [36]  Taylor & Barker (2007) FLC 93-345 at 81,916 [83]

4. Given X’s special needs, I do not consider that it would be in X’s best interests for there to be an equal time regime.  He would not adapt readily to such an arrangement, particularly in terms of moving between two households, which are different in their approach to parenting.  Equal time would not work in practical terms.

5. It seems to me that it would be in X’s best interest to spend substantial and significant time with his father, in terms of spending aspects of weekends; school days; holidays; and special occasions; with him. 

6. The issue then arising being what should be the configuration of that time, particularly what is logistically feasible, given the reality of the chasm which exists between Mr Teagan and Ms Teagan, in attitude and personality to all manner of things.

7. The parties separated in difficult circumstances in early 2016.  If anything the relationship between them has got more, rather than less difficult, in the period since.  Given the animus between them, they are unlikely ever to have an easy relationship with one another.

8. Certainly, it will never be one based on mutual empathy and intuition.  Rather, it is likely, at best, to be one based on formality and rigidity.  At worst, it will remain one of constant flashpoints and disputes about all manner of things. 

9. In these circumstances, the central issue for the court is whether this state of affairs, in practical terms, will sustain a regime in which X spends significant periods of time, with his father, which I consider the service of his best interests requires.

10. Since the parties separated, they now lead different lives, with different preferences and priorities.  The parties also bring different personalities and backgrounds to the parenting of X.  Inevitably, this will result in them having different priorities and agendas in respect of the care of the child.

11. As a consequence, these matters must lead to differences of opinion and emphasis, particularly since the relationship between them has ended, an occurrence, which for obvious reasons, is likely to extenuate, rather than diminish the potential for differences of opinion to arise between them.

12. Every case, involving the care arrangements for children, which comes into court, must involve issues of this kind to some degree or other.  After all, the parties concerned are seeking an adjudication, from the court, given the absence of consensus between them.  It cannot be the legislative intent that parenting orders, envisaging a child spending significant time with one parent, be ruled out in all of these cases.

13. In Astor & Astor[37] O’Reilly J said as follows, in respect of equal time:

    “…it is not as if, as soon as communication difficulties between the parties, or other difficulties between them are identified, the discretion ought not be exercised in favour of an equal time parenting order.  Rather, the matter is one of balancing all relevant factors…”

    [37]  Astor & Astor [2007] Fam CA 355 at [195]

14. In my view, I must be careful not to adopt an unduly utopian standard for the parties’ communication skills or expect them to adhere to a standard, which is clearly untenable, given that they separated in difficult and acrimonious circumstances, as many couples do, particularly those that seek the court’s assistance to resolve their parenting disputes.

1. However, notwithstanding considerations of this kind, I am still required, in determining what is reasonably practicable, to examine the reality of the situation for the family concerned, within considerations provided by section 65DAA(5).

2. The parties live close together in suburban Adelaide.  The evidence of Ms D is that the disruptive aspects of X’s behaviour are not necessarily determined by which household he has been in.  In this context, she did not rule out the viability of his spending a block of up to five days, with his father, but cautioned against short periods and frequent handovers.

3. The reality is that the parties are likely to parent X, as the jargon has it, to a large extent, in parallel.  Each, pursuant to section 65DAE, will make autonomous decisions, regarding arrangements for X’s care, whilst he is in each of their respective households and each will continue to make these myriad decisions untrammelled by any involvement from the other. 

4. In addition, at least in theoretical terms, they are likely to be on the same page substantially, in respect of wanting X to be properly cared for and loved and to have access to all the resources he needs to have a happy and fulfilled childhood.  At the end of the day, this is important, Mr Teagan and Ms Teagan do have things in common and shared aspirations because of their mutual love for X.

5. However, they will travel down the parenting highway, so far as X is concerned, most usually in the same direction but in different vehicles, divided by an unbroken white line.  The difficulty with the metaphor, as with the case, is that X must regularly pass between his parents’ two vehicles and be a passenger in each of them in turn.  The vehicles are likely to be comfortable enough but significantly different in design and model.

6. Problems will arise when one party wants to take a deviation from the main parenting route, of which the other disapproves.  Up to this stage, the most controversial deviation has been in respect of X’s special needs and whether and how they should be medicated.

7. The question for the court being “will a shared living arrangement in this parental context lead to an experience for the children of being richly shared, or deeply divided?”[38]

   [38]  See McIntosh, J and Chisholm, R (2007) Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale From Current Research Australian Family Lawyer Volume 20 No. 1 at 14

8. In my assessment, these difficulties are unlikely to be ameliorated significantly whether X spends three consecutive days, in alternate weekends, as Ms Teagan proposes or longer, up to five consecutive days, as obviously Mr Teagan would prefer.  Issues are likely to arise when X moves between the households and when decisions have to be made and what is the moment of those decisions.

9. In addition, although I accept Ms D’s assessment that X’s experience of being cared for is likely to be different in each of his parent’s respective households, these differences will remain regardless of how the time is divided between his parents.  The essential nature of his family, for X at present, is that it is divided.  A fact which upsets him, as he clearly conveyed to Ms D.

10. I cannot change the model of either Mr Teagan’s or Ms Teagan’s parenting, as these have most likely been set by their respective dispositions and how they themselves were parented and X will have to be exposed to each such mode of parenting, unless the parties themselves attempt to consolidate or reconcile their parenting approaches.  This would clearly be beneficial for X but appears a remote possibility at present.

11. It is in this challenging context that I must consider the benefits X is likely to derive from having a meaningful level of relationship with his father, including being able to interact with his father in a variety of contexts and settings.

12. I have reached the conclusion that the best arrangement for school terms, on balance, is for X to spend a block of four nights per fortnight, with his father, from after school on Friday until school recommences the following Tuesday morning.  The benefit of this will be a neutral location for handover, which requires attendance by only one parent.

13. Given Ms Teagan’s initial endorsement of a week about arrangement during school holidays and the fact that X has spent such periods in his father’s care in the past, in my view, such an arrangement would be in X’s best interests in the future, notwithstanding Ms D’s reservations about it.  I do not consider that the three week block proposed by Mr Teagan, at Christmas, is as yet appropriate in the these circumstances.

14. On my rough calculations, such a regime would see X in his father’s care for 122 nights per annum.  I do not like making such calculations but would be naïve to think that the parties, in proceedings such as these, are well aware of them.  After all, the emphasis should be on the quality of the time spent – what is the meaning inculcated into parental relationships from the time spent – rather than its extent.

15. I am satisfied that Mr Teagan is inclined to utilise whatever time he has with X in a meaningful way for each of them.  He will also be inclined to facilitate X’s relationship with his older sisters E and F.  In my view, the time, as I have constructed it, will support X’s relationship with his paternal family.

16. The parties essentially agree on arrangements for special occasions, including making sure that Easter is divided in the manner advocated by Mr Teagan which will enable him to spend its entire period, with X, in alternate years.  In my view, these arrangements satisfy the definition of substantial and significant time provided by section 65DAA(5) and will allow Mr Teagan to have a sense that he is involved in all aspects of X’s life.

17. Problems will remain as a consequence of the parties’ poor parenting regime and these problems have the potential to adversely affect X.  However, once again, it seems likely that these negative outcomes will remain potent however the time is allocated and it would be more detrimental to X to constrain his time in artificially narrow boundaries.  As previously indicated, I consider that there is a real risk that such an outcome would exacerbate rather than reduce tensions between the parties.

18. The major problem relating to an outcome which sees each parent substantially involved in providing care for X arises from their compromised ability to communicate effectively with one another, if at all and solve the myriad of problems which are likely to arise given X’s idiosyncratic needs.

19. Again, there are no easy answers to these problems and certainly, in my view, removing Mr Teagan, either from the realm of decision-making for X or entirely from the child’s life is not currently a realistic option, given the potentially adverse consequence of this, for X, and his personal sense of identity as a child with two parents.

20. Some partial solutions to the problems are orders which clearly delineate what information is to pass between them and when.  Communication books and electronic apps have a role to play in such interventions.  I will mandate such a formal mechanism to mandate the exchange of information between the parties regarding X’s changing sleep requirements, diet, other preferences, medical needs, school and extracurricular activities and the like.  The aim being that the information about X is shared in an open and transparent manner, which is helpful to ensuring that his needs are met in the same way in each of his parents’ households.

21. It would also be helpful if the parties attended a post separation parenting course, as recommended by Ms D, although the success of such an intervention depends on the willingness of its participants to attend it in the first place and then be guided by its recommendations in the second.  Neither of which can be guaranteed in the present case.  Nonetheless, in spite of my reservations, I will make such an order.  I will also make the order so far as X is concerned regarding his attendance at Banana Splitz.

22. It is also essential that the parties refrain from either overt or passive criticism of the other in any manner which will expose X to a parent’s negative view of the other parent.  If the parties take anything away from these unduly lengthy reasons for judgment I hope that it is this.  It is unacceptable and harmful for X to be exposed to the endless dispute between them.  It is your dispute, not his.  He loves you both and it is damaging to him to put him in a position where he feels he has to take a side.  It must stop.

23. As is clear, the conferral of shared and joint parental responsibility requires firstly, the sharing of information and then secondly and more importantly, a genuine attempt to reach some form of agreement in respect of the relevant major issue.  Obviously, the second aspect is the far more challenging.  I would hope that the orders I propose will deal with the first aspect.

24. What is to be done about the second is far more problematic.  I propose to mandate a process whereby the parties will be required to utilise some process of family dispute resolution in the event that a controversial issue relating to a major long term parenting issue arises.  Thereafter, the matter will have to be adjudicated by the court.

25. It is difficult to know how many such matters there are likely to be.  I suspect there will be issues relating to the nature of the services to be provided to X by the NDIS.  Many of these questions are professional in nature and each party is entitled to hear from the medical practitioner or other expert concerning the pros and cons of each such treatment.  Dr C has indicated that the parties are capable of receiving such information together, as does the information recently received from X’s school.

26. In truth, the decisions arising from Dr C’s recommendation of medication for X would have challenged many parents in the making of a consensual decision as to whether or not to go ahead.  So the parties should not feel they are failures because they did not agree.  To my mind, what is more important is the sharing of information and the avoidance of any perception that one parent is being left out of the loop.

27. These are easy sentiments to express, less easy to put into practice.  Essentially, they rely on trust and respect.  In this case, neither Mr Teagan nor Ms Teagan either respects or trusts the other.  However, if they follow the pathway mandated for them, information can be exchanged and perhaps, with a great deal of luck, their relationship will get better.  At the end of the day, each of them has a decision to make as to what sort of relationship they want and whether they want it to be the most viable one for X.

28. If the steps I have envisaged are followed, I consider that the time regime I have formulated will be reasonably practicable to implement.  I also consider that the manner in which I have decided X’s time with each of his parents is to be allocated will ensure that the child has a meaningful level of relationship with each of his parents, which will be in X’s best interests.

29. At the end of these lengthy reasons for judgement, one thing remains abundantly clear to me.  X is a much loved child by both his father and mother and indeed by the various members of his family – grandparents and his siblings – on both sides of the family divide. 

30. As such, it is in X’s best interests that both his parents be involved in deciding the important issues relating to his on-going care, welfare and development and in so doing they each do their level best to discuss these issues openly and frankly and without one parent feeling that important information has been withheld.

31. I use the expression family divide deliberately.  The chasm between the parties is a major threat to X’s wellbeing, as he grows from a primary school student to an adolescent and on into adulthood.  Although the parties may each wish that they could dispose of the other, so far as parenting X is concerned, that is not possible and therefore it makes more sense that the parties try and work together.

32. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding three hundred and seventy-three (373) paragraphs are a true copy of the reasons for judgment of Judge Brown.

Associate: 

Date: 31 July 2020