Toomey and Kellett
[2017] FCCA 100
•20 January 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TOOMEY & KELLETT | [2017] FCCA 100 |
| Catchwords: FAMILY LAW – Parenting dispute about 5 year old autistic child – parents’ marriage brief – father withdrawing from child’s life – difficulties of re-introduction – child severely stressed before and after time with father – whether distress fomented by mother’s concerns – both parents lacking insight – treating specialist unfortunately partisan – re-organisation of time on interim basis – parties directed to counselling – matter to be revisited in six months. |
| Legislation: Family Law Act 1975, ss.4A, 13C, 13D, 60CC, 60L, 68L(2) |
| Cases cited: Goode v Goode [2006] FamCA 1346 |
| Applicant: | MR TOOMEY |
| Respondent: | MS KELLETT |
| File Number: | MLC 6051 of 2013 |
| Judgment of: | Judge Burchardt |
| Hearing dates: | 14 & 15 November 2016 |
| Date of Last Submission: | 15 November 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 20 January 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Weerappah |
| Solicitors for the Applicant: | Bayside Solicitors |
| Counsel for the Respondent: | Mr Smith |
| Solicitors for the Respondent: | Barbayannis Lawyers |
ORDERS
(Amended pursuant to Rule 16.05(2)(e) of the Federal Circuit Court Rules 2001 on 20 January 2017.)
The father spend 4 hours with the child X born (omitted) 2011 each Saturday between 9.00 am and 1.00 pm commencing 21 January 2017.
The father’s telephone time with the child cease until further order.
Pursuant to s.68L(2) of the Family Law Act 1975, the interests of the child X born (omitted) 2011 be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such independent representation.
Forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer shall file a Notice of Address for Service.
Within 48 hours of notification of such appointment the solicitors for the respective parties shall provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.
Within 7 days, both parties shall contact Ms F on (omitted) and, as directed by Ms F, shall do all acts and things necessary to engage in the (omitted) Program (“the Program”) at CatholicCare, (omitted).
Both parents shall attend for assessment, follow the recommendations of the Program and complete all aspects of the Program as directed by the Program.
Both parents shall provide to the other lawyer’s a copy of the Certificate of Engagement confirming their involvement in the Program.
The parents shall provide to the Program a copy of any memorandum or family report provided to the court by a Family Consultant.
The matter be adjourned to this Court for mention before Judge Burchardt on 21 August 2017 at 9.30 am in Melbourne.
NOTATIONS
A.Order 7 is made under section 13C of the Family Law Act 1975 which means that any counselling undertaken will be confidential unless it is necessary for the counsellor to disclose information to protect a person.
B.The Program will be run by family counsellors.
C.Under section 13D of the Family Law Act 1975, if a party fails to comply with Order 7, the Program must report the failure to the Court.
IT IS NOTED that publication of this judgment under the pseudonym Toomey & Kellett is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 6051 of 2013
| MR TOOMEY |
Applicant
And
| MS KELLETT |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a parenting dispute about the best interests of the child, X, born (omitted) 2011. The applicant father seeks that there be an order for equal shared parental responsibility and that he spend time and communicate with X, commencing effectively immediately with overnight time and moving to alternate weekends and equal school holiday times relatively rapidly thereafter.
The respondent mother seeks an order for sole parental responsibility in her favour and that the child spend two hours each alternate Saturday with the father for six months with very gradual increases thereafter over a protracted period of time. She further seeks that time be addressed with the assistance of X’s treating practitioners, including his psychologist, paediatrician and speech pathologist.
The difference between the parties is, in part, explained by the very unfortunate fact that X has been diagnosed in February 2016 with autism. The parties, and of course X, deserve a great deal of sympathy for this confronting circumstance. Notwithstanding this, both parents also deserve some criticism. I will return to this matter in due course.
For the reasons that follow, I am going to order that X spend four hours each Saturday with his father for a period of six months. I am further going to order that the father engage with X’s psychologist and speech pathologist in the interim. I am going to order the parties to undertake participation in the pilot post‑orders support pilot program offered by CatholicCare.
I am then going to cause the matter to be re‑listed for further consideration once these initiatives have been completed. It is never satisfactory to make interim orders in circumstances where the parties have radically different views as to what should occur and are forced to confront yet further litigation. Nonetheless, I am convinced that this way forward is in X’s best interests.
Agreed or Uncontested Matters
The father was born on (omitted) 1961. He is presently employed as a (occupation omitted) and (duties omitted). The mother was born on (omitted) 1978 and currently does not work. She is endeavouring to set up a business she can run from home which is in its early stages. She is otherwise a full‑time mother engaged in looking after her three children. A, born (omitted) 2005 and B, born (omitted) 2007, are children of an earlier relationship. X, as noted, was born (omitted) 2011 and spends one day a week in childcare for socialisation.
Although there are some slight quibbles as to the exact dates, it seems clear that the parents commenced a relationship in the latter months of 2010 and commenced cohabitation on (omitted) 2011, the date upon which they married. They separated on 1 September 2012, at which stage X was only 10 months old. On any view of the matter, it was not a lengthy relationship.
The father moved very promptly, with the assistance of a solicitor, to seek property orders which were made in July 2013. He did not, however, prosecute any parenting orders at that time. He only filed his initiating application on 28 July 2014. Scarcely surprisingly, since he had not seen X since separation on 1 September 2012, his reintroduction to X, who had no idea who he was, was problematic.
Orders were made for supervised time and the report of Ms R annexed to her affidavit filed 19 September 2015 shows that the reintroduction commenced in May 2015 took time but went generally well. Orders were made for unsupervised time commencing 26 September 2015, initially for four hours of time each alternate weekend, expanding to eight hours each alternate weekend with the father. Those orders remain in full force and effect.
As earlier indicated, following a multi‑disciplinary investigation, X was diagnosed with autism by Ms E.
Disputed Matters
The primary factual disputes between the parties can be stated shortly. Although both parties agree that the relationship was volatile, the mother accuses the father of serial acts of family violence, including physical assaults, together with overbearing behaviour such as yelling very loudly at her. The father has countervailing accusations of hysterical conduct on the part of the mother.
The other significant factual dispute between the parties is X’s capacity to spend time with his father. According to the mother, X becomes extremely distressed both before and after he spends time with his father and is regressing as a result. The father says X is fine with him and accuses the mother of exaggeration or lying about X’s symptoms.
Against this background, it is appropriate to come to the affidavit material.
The Affidavits of the Parents
I have, of course, read the affidavits of each of the parents and had due regard to the materials they have filed. In large part, they are, in fact, paraphrased above. The affidavits of both the father and the mother are mutually accusatory and recriminatory. There is detailed denial of the assertions made by the other party, often made in terms that are not, in my view, of assistance. The affidavits of the father, in particular, show a pedantic over‑precision. It will be sufficient for these purposes to deal in more detail with the evidence the parents gave in court, as I arrived at clear views as to what actually transpired.
It should be noted that a psychiatric report prepared by Dr D has disposed of the concerns articulated by the mother about the father’s mental health. Dr D was not required for cross‑examination.
The Family Report of Ms J dated 29 January 2016
Dr J’s report was prepared at a time when investigation was underway into whether or not X suffered from autism. If I understand the matter rightly, the father sought for the report to proceed and the mother suggested it should be delayed. I note that Ms J recorded at paragraph 16 that the father:
did not really explain why children’s matters were not included when he was seeking the property settlement. At that time he knew where Ms Kellett and X lived. It was later when Mr Toomey applied to Court to spend time with X that he did not know where X was living, so an application seeking to spend time with X was not filed until 28 July 2014.
I share the hesitation expressed by Ms J in the same paragraph as to Mr Toomey’s motivation.
Otherwise, the report is, in my view, largely straightforward and does not require a detailed recitation. I note that at paragraph 39 Ms J recorded entirely appropriate interaction between X and his father. As they packed up at the end, the father asked for a hug and X said, “Mum said I can’t hug you”. Ms J suggested that X give dad a hug goodbye:
Then X ran over to Mr Toomey smiling and they hugged.
X was observed to have a very close relationship with his mother.
Paragraphs 42 to 43 of the report said:
From my observations, X demonstrated that he has a warm and close relationship with Mr Toomey and with Ms Kellett. During the observation sessions X enjoyed his play with Mr Toomey, interacting well, with no concerns arising about the nature of their relationship. At the end of the observation session, when Mr Toomey asked X for a hug, X refused, saying, “Mum said I can’t hug you”. As we were about to go out of the room, I said to X, “Give dad a hug goodbye”. X smiled and ran quickly and spontaneously to his father for a hug. It is my view that when X first came into the room with Ms Kellett where Mr Toomey was waiting, X was conscious of Mr Toomey and Ms Kellett being in the room at the same time, albeit it was very brief.
In my view, X feels anxious about Mr Toomey and Ms Kellett being near each other. I noted that when X walked out to the waiting room with Mr Toomey who then walked past Ms Kellett, X did not show any acknowledgement of Mr Toomey as he left.
Ms J noted, paragraph 47 (and this is entirely consistent with the parties’ affidavit material):
There is high level of conflict between Mr Toomey and Ms Kellett which has prevented them from developing a parenting relationship and a means of communication about X. They each give a very different account of the nature of their relationship. Ms Kellett claimed that Mr Toomey had been violent including physically and verbally throughout their relationship, which Mr Toomey denied and claimed that Ms Kellett had been physically and verbally violent. Mr Toomey said that they both yelled occasionally. There was an altercation at the time of the separation with each of them giving different accounts but following this Ms Kellett obtained an Intervention Order which Mr Toomey said that he agreed to without admitting guilt.
Ms J went on to note the brevity of the relationship and the concomitant difficulties arising from it, and she recommended that if X was found to have autism, the father inform himself about autism and make an effort to have some involvement in the assessment. Ms J recommended that X live with the mother and spend time commencing with alternate Saturdays 9am to 5pm, with gradual increases of time thereafter.
The Affidavit of Dr R
Dr R is a paediatrician who has been treating X for approximately two years. She annexed to her affidavit letters written to the referring general practitioner dated 8 February 2016 and 9 September 2016.
Her letter dated 8 February 2016 notes the existence of the proceedings before this Court. She had taken the opportunity on that day to review the recent behavioural history with the mother. She said:
I am reminded that X has had a recent decline in his mental health, commencing some 6 months ago. X displays behaviours that are consistent with clinically significant anxiety.
The letter goes on to detail further symptoms of difficulties experienced by X and continued:
Furthermore, X is observed to experience acute exacerbation of these behaviours immediately prior and then following visitation with his biological father.
The letter referred to the difficulties X was experiencing with sleep, the development of recent times of urinary and faecal incontinence, and noted that, (following a Spence Children’s Anxiety Scale assessment), X was displaying very significant elevated levels of anxiety. The second last paragraph contains the following conclusion:
However, it is my view, with the information available to me, that X presents with very significant generalised anxiety and separation anxiety. He has experienced developmental regression in terms of his urinary and faecal continence and has markedly disturbed sleep. It is my view that the most recent developmental and behavioural difficulties seem to have become clinically significant since shortly after resuming contact with his biological father. It is my view, with the information available to me at the time of writing, that any plans to increase time spent with his biological father be slow and gradual and that X is permitted time to adjust in a child‑set manner.
The letter dated 9 September 2016 to Dr W notes, relevantly:
I have heard from his mother that X continues to cycle through periods of acute distress and anxiety immediately following visitation with his biological father.
She went on to say that, given the degree of emotional distress, she had recommended commencing fluoxetine and noted that it had some success. The letter continued:
However, it is my view that the ongoing visitation with his biological father, as recommended by the Family Court report, continues to have an adverse effect on X’s emotional health.
X has very significant neurodevelopmental, social and emotional additional needs. Furthermore, he has been exposed to family violence early in his life. It is my opinion that X does not have the psychological resilience nor the emotional capacity to comprehend and integrate the addition of his biological father in X’s concept of family.
It is my view that the extreme swings in his emotional state are directly related to the repeated unsupervised access with his biological father, with whom he has previously had no physical contact and with whom he has not developed an emotional connection. It is my opinion that this further traumatises X and serves as yet another attachment injury.
It should be noted that at paragraph 18 of her affidavit filed 28 October 2016, the mother asserts:
I am aware that after X’s last appointment with Dr R, she contacted the Department of Human Services because of her concerns with X’s regressed behaviour and violent outbursts.
Dr R did not include this information in her own affidavit.
The Affidavit of Ms D
Ms D is a psychologist at (omitted) Childhood Psychology. She has been working with X since June 2016, following his previous psychologist, Ms E, going on maternity leave. Her letter “To Whom It May Concern,” dated 26 October 2016, noted reports from the mother of elevated anxiety levels in X associated with separation from her and increased contact with his father. Ms D has been developing strategies to help X understand and manage his anxiety.
The letter noted that X had disclosed that he does not like being away from his mother for long periods and had asserted that he finds being with his father very stressful. The letter goes on:
Further, the sudden change from 2 hour to 8 hour visits with Mr Toomey may not have given X enough time to adjust. Children with Autism have considerable difficulty coping with change, and take longer than typically developing children to feel safe and secure in new environments. Ideally, this change would have occurred in a more gradual fashion working up to the longer visits.
It is important that X continues to receive support to reduce his overall level of anxiety, as prolonged elevated levels of anxiety can have a lasting negative impact on learning and development. X will continue to attend individual psychology sessions to receive support to manage his anxiety and behaviour. Through these sessions, Ms Kellett will further receive support for her own behaviour management and parenting to assist her to continue to provide X with a consistent and supportive home environment.
It is recommended that the duration of X’s contact visits with Mr Toomey be reduced to assist X to adjust to the change in arrangements and become more able to separate from his mother without distress. Once X has grown more accustomed to time spent with Mr Toomey, and his anxiety around these visits has reduced, the duration of visits could increase. It is further recommended that overnight contact be postponed until X commences prep.
The Affidavit of Ms T
Ms T is a speech pathologist and her affidavit annexes her report dated February 2016. This notes X’s various difficulties and that he was diagnosed by Ms B as having autism spectrum disorder in February 2016. Essentially, the report details the observations of X undertaken by Ms T and her diagnosis of autism. I note that, amongst other recommendations, Ms T recommended that both parents consider attending a parent education program, with a view to learning more about autism and receiving support to best address both X’s needs and their own individual wellbeing.
The Evidence Given at Court – The Father
In evidence-in-chief, the father noted that his supervised time started in about August 2015 and moved to unsupervised in October 2015. He said X was anxious on a couple of occasions during supervised time and once also when he took X to the doctor during unsupervised time. He said that there were no problems for him when X is with him. X is delightful the whole day.
He said that there was no indication of any fear of home invasion and, indeed, his evidence was to the effect that X was perfectly alright when with him. He said as soon as the mother leaves X comes over and smiles. There is generally an extended handover with a lot of cuddles with the mother. The father settles him down. The father has never spoken to Dr R.
X is calm when he is handed to his mother. There has been incontinence while in the father’s care but the child is happy to see him. The father confirmed that he telephones X each Wednesday but this does not go well. X says he does not want to talk right now. X does say he misses his mother on occasions and asks how long before they go back to the police station. He does not ask this every time.
The father deposed that he has a consistent routine for X. He accepts that X has autism. He has never spoken to Ms D. He would like to engage with a paediatrician. He had tried to contact Dr R in January 2016 but had no reply. He had been to an autism conference for a full day and had also rung Amaze. He had been to (omitted) speech pathology.
Under cross‑examination the father said he had not tried to contact Dr R again after his unsuccessful attempt in January 2016. He could not say why. The father knew that Ms B was leaving in May but was not sure when Ms D took over. He did not contact (omitted) after Ms B left. He said he overlooked it. He said he would love to have regular reports. He only had a one hour session with Ms B. He tried to contact Ms T in January but did not get a reply. He had not sought contact since. Partly he was intimidated and partly he did not wish to pester.
In response to a question from the Court, the father confirmed that he had, in fact, formed the view that the three professionals were essentially unsympathetic to him and it was for this reason that he had not further sought to contact them.
The father confirmed that he had received a copy of the report diagnosing X with autism in February 2016. He found the report confusing. The professionals would not return his calls. It would be good to have prepared X for change. Time commenced in August 2015 for two hours and then became unsupervised and went straight to four hours.
Tellingly, when the mother’s version of the various extreme difficulties faced by X before and after time with him were put to him, the father said that the mother was either lying or exaggerating. It was one or the other. He was concerned that X’s anxiety came from the mother. He questioned whether it was nature or nurture. He had not seen X scuff his feet on the ground or bang himself on walls. He nonetheless said it is possible that the mother does a good job preparing X for the time with him.
When cross‑examined about a Father’s Day celebration at kinder, the father accepted that he was wrong to accuse the mother of sabotaging this and he conceded that this was, in fact, the view of the childcare worker at the kinder. This concession did him credit.
The father was concerned that the mother was alienating the child. He referred to X saying, “Mum says I can’t hug you”. He regarded it as highly unlikely that the child might say this to him as avoidance. He has very little trust in the mother. He said he had no idea how the orders he had proposed would work. He understood overnight time was good for children and that a slow approach would be good for X.
He said he had no input into when X will start prep and that the doctors and kindergarten are partisan. He said that X could cope with makeup time if there was sufficient notice. The father conceded that much of his material was pedantic and that this was not particularly wise.
The father was cross‑examined about the incident at separation on 1 September 2012. The police were called and in the ultimate an Intervention Order was taken out without admissions in September 2012. When cross-examined about the delay in his application until July 2014, the father said the Intervention Order lasted for the first year. He was absolutely burnt out during that time.
The father said he had inquired about schools but had little say. He did research just in case. He said X calls his days with him Mr Toomey days and he slips in and out of calling his father Dad. He noted that the mother’s other two children call their biological father Dad. He said the mother disappeared and he could not find her. She does not promote him as the biological father. He said that he was always positive about the mother with X and would tell him not to forget her birthday and buy her flowers.
When he was asked if he could say anything good about the mother, the father replied that she was very intelligent. She was beautiful. He was devastated by separation. I interpolate and say that this answer struck me as being facile. He said nothing of her qualities as a human being but, rather, was more concerned to stress those aspects of her that were appealing to him as a man.
He was cross‑examined about instances of family violence. He gave evidence that on one occasion in (omitted) during the currency of an argument he tapped the mother on the back of the head. He said there was no force to it and thought that they would both laugh. She took off. Anyone who taps themselves on the back of the head will instantly realise (including me, as I have conducted the experiment) that it is painful. The father’s assertion that he thought they would both laugh, in effect that he would, as it were, cuff her out of it, shows a remarkable lack of insight. It was an assault.
The father was then cross‑examined about the detail of the incident on 1 September 2012. Clearly, both parties were extremely agitated and shouting at one another, all most regrettably in the presence of X. The father said there was not 20 minutes of shouting but rather five minutes. He said to the mother, “If I told you to kill yourself, would you?” He conceded that this was absolutely inappropriate. He denied the other assertions in the mother’s affidavit. The altercation continued and in the end he gave X to the mother. The police were called and told the father to leave.
He conceded that he called the mother a liar and a con artist, and conceded that this was inappropriate. He had undertaken an anger management course in March 2016. He denied telling the mother to fuck off and die. He conceded that there were a lot of arguments before separation.
The Evidence of the Mother
The mother adopted her affidavits as true and correct.
Under cross‑examination, the mother was also asked what she could say about the father that was good. She said she married him. He had a great sense of humour and she thought he was smart and witty. Like the answer of the father referred to above, in my view this was a facile and insightless answer. Neither of the answers given by either parent suggested any true appreciation of any quality that the other party possessed that might go to their character.
The mother said that a nuclear role for the father was not possible. She hoped that he would play a role as X’s father in the future. It is her intention that X will stay in kinder next year and then commence prep the year after. The mother had not thought at this stage which school he should attend. She had spoken to the kinder teacher and had made inquiries about local schools. She will investigate from July next year onwards. She will tell the father which school X will be sent to but would not wish him to be involved. She is not comfortable with him. She will include the father by written notification.
The mother conceded that in August 2015 she was in a relationship with a person known as Mr M. She was dating him but not living with him. X does not call him father. The relationship with Mr M finished in late March 2016, although X still sees him when they catch up. Mr M never slept over.
The mother did not attend mediation in 2014. She was not comfortable meeting the father. This was so, even though the mediation service offered a shuttle service. The mother was concerned that X simply has not established a routine with his father yet. She is not medically qualified. X is now at kinder three days per week since February 2016 and this is now a routine.
The mother had read the affidavit of Ms R at the contact centre and noted the time had gone well. She did not see the father having affection towards X and has said she observed no affection between them. The mother noted X’s difficulties with Christmas generally and said that X should stay in his routine. There should be no overnight time before X commences school and no school holiday time.
The mother says that she sees Dr R and the father is not there. She paid Dr R for her services. She received funding for Ms D. She does not pay for Ms T, who is paid for through autism funding. In re‑examination, the mother confirmed that X took time to settle into kinder and this took a lot of work with the kinder teachers.
The Evidence of Dr R
Dr R adopted her affidavit as true and correct. She is a developmental paediatrician specialising in all forms of developmental delay, including, obviously, autism spectrum.
Under cross‑examination by counsel for the father, Dr R confirmed that she first consulted with the mother in November 2015. She has seen the mother on a three-monthly basis, then monthly, amounting to eight to 10 times in all. She said the information upon which she relies is either from the mother, the treating psychologist and her own observation. She has not seen the father at all.
She did not have an email allegedly sent by the father to her on file. She said the father was always welcome to contact her. She did not have the father’s details and would prefer to speak to him. All the information she relied upon was from the mother. Children with autism do well with routine and fortnightly time for X would be difficult.
In response to a question from the Court, Dr R confirmed that she was aware this was a high conflict case between the parents. She said it was difficult to diagnose a child before the age of five and was concerned about the relationship with the father. It was no surprise that the mother had not told Dr R to contact the father. The mother said she would invite the father to come to the clinic. She could not recall what she said about the father and she has certainly never seen him.
Dr R had the impression that the father failed to attend appointments and had the impression that the mother had made the appointments. Dr R said time needs to be introduced at a child’s pace and fortnightly time was causing regression. She was sufficiently concerned to put the child on medication in August 2016. She confirmed that she had reported the matter to the Department of Health and Human Services because she was very concerned about X’s welfare. She was not seeing the progress she had expected. She was aware that the Department had closed the case.
The Evidence of Ms T
Ms T had adopted her affidavit as true and correct. Under cross-examination by counsel by the father, Ms T readily conceded that her report was based upon what the mother had told her. There had been no input by the father. The mother authorised her to speak to the father in late January 2016. She was aware the mother had primary custody. She only needed the permission of one parent to commence treatment. She said there was some contact from the father while she was away in January. She said that the mother and X were her clients and she did not hear from the father after her report was issued.
Ms T thought contact only commenced between X and the father in mid‑2005 for two hours on a Saturday. In hindsight, Ms T thought that it would have helped to have had contact with the father. Nonetheless, it was not unusual to interview only one parent and, indeed, this was the case in 70 per cent of all cases.
The Evidence of Ms D
Ms D is a registered psychologist and she adopted her affidavit as true and correct.
Under cross‑examination by counsel for the father, Ms D confirmed that she knows Ms T. She sees a lot of autistic children. She was not sure if the father had attended an evening workshop on autism. She had taken over from Ms E, who had seen the father in May 2016. Ms D had not seen the father. She is working with X and has had no contact from the father. Her information comes only from the mother. She was not sure how long X is at kinder. Perhaps it was five hours. She had not read Ms T’s report but had read Ms B’s report. She confirmed it would be good if the father followed routines.
When it was put to her that X has been seeing his father for over a year, Ms D said it depended how easily the child accepted being with him. She said that shorter visits might potentially reduce X’s anxiety. What she was saying was not just based on what the mother reported to her. It was based on X’s presentation and what he told Ms D. This was clear information. His behaviour indicated a high level of anxiety. The client is X, even though the mother engaged the service. She said that more frequent, shorter visits would be better. Time could increase when X goes to school and could potentially be overnight. For the moment, she recommended weekly time but shorter, say three to four hours.
In re‑examination, Ms D said that the parties needed to be flexible. They needed to take the time that X could cope with.
The Evidence of Ms J
It should be noted that although Ms J was called, in effect, by the father, counsel for the father put his questions in a fashion more consistent with the freedom of cross‑examination, without objection from counsel on the part of the mother. In my view, given that Ms J was, in truth, an independent witness, this was not inappropriate.
When questioned by counsel for the father, Ms J confirmed that her report had been conducted before the paediatric assessments. She has read the reports of Ms T, Ms D and Dr R. Ms J interviewed the parents and observed the child. There was no more anxiety when X saw his father than she would have expected. They played together.
When asked if it would be preferable to keep the parents apart at changeover, Ms J said this would be better if the parents were still at the same level of conflict and they should consider trying professional changeover. It is important that parents of autistic children have ongoing education from appropriate professionals to deal with ongoing issues.
Ms J was not sure that the mother would foment a relationship between X and his father, considering the history of the matter. It did not appear that there was ongoing encouragement on the mother’s part to facilitate the father’s time. When questioned whether this arose from poor communications, Ms J said that poor communications is a poor excuse. It reflects a failing on the part of the parents. They should overcome these immature attitudes. The child deserved the opportunity for his parents to make joint decisions about him. She had not changed her mind after reading the reports of Dr R and the other treating professionals. These experts had not spent time observing the father with the child.
Under cross‑examination by counsel for the mother, Ms J again confirmed that her report was undertaken before the diagnosis was made. She conceded that Dr R had seen X for some 12 months. Counsel traversed the recommendations of the treating professionals, which are generally to the effect that time should be reduced, but when it was put to her that she should defer to their recommendations, Ms J said that none of the experts had seen X with the father. They needed to.
She said that the professionals needed to work with both parents and X with a child psychologist. Ms J said she was not an expert in autism but did have 30 years of experience. One of the most important issues is the parents need to work out how to prepare the child. If one parent is not prepared to facilitate time, it will not work for the child. The mother does not facilitate a relationship between the father and the child. This was more a matter of the history of the case. The father did not know where the mother lived. Ms J understood that because of the Intervention Order the father needed a location order.
Some Findings on the Credit of the Parties
The father gave his evidence in a measured fashion. I have already mentioned the pedantic and somewhat over-precise way in which he spoke and addressed matters. He appeared to have a very particular memory for dates. While it was noted he did make some concessions, his attitude towards the mother could not have been clearer. His lack of insight in appreciating that his son might have told him that his mother said not to hug him as an avoidance technique was striking. His assertion that the entirety of the symptoms described by the mother arising from spending time with him were either lies or exaggeration does him no credit whatsoever. Nonetheless, I accept that he was, with some exceptions to which I shall come, in the main telling the truth, most particularly about his time with X.
The mother’s demeanour likewise was, in my view, in the main reasonable and measured. She was unable to conceal, however, her ongoing dislike of the father and her underlying reservations, in truth, about X having a relationship with him.
Dr R’s evidence was striking. It was not just a question of what she said but her demeanour when saying it. When I asked Dr R whether she was aware that this was a high conflict law dispute she indicated that she was. What the transcript will not reveal, was the obvious palpable disdain that Dr R has for the father, whom she has never even met. Although she was concerned to represent herself as prepared to involve the father in the treatment process and to present herself as a professional acting objectively, I have no hesitation whatsoever in finding that she is utterly partisan and aligned with the mother’s view. It is quite clear that she has accepted as fact every criticism that the mother has made of the father to her and it is quite apparent that the mother has advanced plenty by way of such criticism.
It is quite apparent that Dr R has entered so much upon the playing field that she has actively sought to engage the Department of Health and Human Services and it was clear from the answers given by Dr R that the end point from her perspective would have been intervention and the suspension of the court-ordered time. I note that her report refers to time recommended by the court rather than time ordered by the court. It is regrettable to have to be in part critical of a witness in this way, but in these unusual circumstances it is not possible to avoid criticism.
It should be noted, however, that, notwithstanding these reservations, there is no suggesting that Dr R is not a competent professional in her field.
Both Ms T and Ms D impressed me as truthful witnesses who did not exhibit the same regrettable partisan quality exemplified in the evidence of Dr R.
Ms J was a professional giving evidence within her area of competence. She was not shaken in cross-examination.
Findings About the Facts
There is no doubt in my mind that the relationship between the parents was extremely volatile. The father conceded there were lots of arguments before final separation. The father assaulted the mother in (omitted) when he hit her to the back of the head. He also shouted and loomed over her, as she asserts, during the separation incident in September 2012. Even if I accept his version of the events, he screamed at her, “Would you kill yourself if I told you to?”
She then apparently acted on that and went off to get a knife in the kitchen. This all took place in the immediate presence of X. The father’s conduct was, on any view of the matter, utterly deplorable. The father is much bigger than the mother and far stronger. I see no reason to doubt the mother’s fears of the father at all and, indeed, unsurprisingly, they are at the forefront of her fears of him and have much to do with her attitude towards the development of a relationship between the father and X.
Following separation, the father moved rapidly to protect his property interests but failed to make any effort to see X until mid 2014. This is, as I find, because of his response to separation. Whether he was depressed, whether he was just exhausted or for some other reason does not matter. What does matter is that he departed out of X’s life for a long time.
Thereafter, however, reintroduction went well. It is a matter of significant concern that the mother appears to set the reports of Ms R wholly to one side. Her assertions, adopted in spades by Dr R, that X has no relationship with his father ignore the ease of interaction that developed, admittedly over time, when time was supervised.
Thereafter time moved to unsupervised. As I think I may have remarked during the running of the trial, my general impression is that the evidence given by both the father and the mother as to their experiences of time with X are, subject to a measure of exaggeration, probably correct. I accept that when X is with his father he does not (at least generally) soil himself. He enjoys his routine. The father deserves credit for having come to grips with the diagnosis of autism and having made efforts to learn to understand it and for trying to create a routine accordingly. Nonetheless, there is equally no reason to doubt that X does indeed exhibit many of the qualities that the mother ascribes to him and described in her affidavit material. It must be terribly distressing both for her and for X.
What the mother ignores, of course, is the proposition that the symptoms displayed by X may emanate in large part from her own poorly concealed (if concealed at all) anxieties about the child spending time with the father. Ms J surmised that this was the case and I share that suspicion.
I note that Ms D in particular does not base her analysis of what has occurred wholly upon what the mother has said to her. She has sufficient experience of X to form a judgment and I accept the force of her evidence. It is thus clear that the process of spending time is proving much more demanding to X than the father realises.
Both of these parents struck me as being somewhat superficial and lacking in insight in various ways. I have already made reference to some of these matters. Their self-absorption and what Ms J correctly described as their immature views prevents them from working collaboratively to move matters forward in a sensible way in X’s best interests.
What is perhaps, however, most telling is Ms J’s observation of the child with the father. Ms J did not defer to the views of the treating practitioners that time should be decreased but rather asserted that they had not seen the child with the father. Given the unremarkable and, indeed, entirely satisfactory interaction between X and his father in Ms J’s observation, I think her criticism is well-founded although it does not necessarily mean that the increased levels of time immediately recommended by Ms J are appropriate.
Having made these observations, it is appropriate to turn to the statutory pathway. Despite some minor statutory amendment, the observations of the Full Court in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”).
The statutory pathway as set out in Goode v Goode at [65] is as follows:
“Summary
[65] In summary, the amendments to Pt VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).
3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
(s 65DAA(5)).7. The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11. The child’s best interests remain the overriding consideration.”
Parental Responsibility
The mother seeks an order for sole parental responsibility and the father opposes it. This reflects, in my opinion, more the tussle of wills between them than any considered views about what would really be in X’s best interests. It is clear that there has been family violence within the extended definition in s 4A of the Family Law Act1975 and the presumption as to equal shared parental responsibility is therefore displaced. Since, for reasons I will shortly come to, I will be making interim orders, it is not necessary for this matter to be the subject of final adjudication at this time.
Counsel for the mother said the issues were simple and that the crucial evidence was that of Dr R who has found it necessary to prescribe an anti‑psychotic. It was submitted that the Court should adopt the views of the medical practitioners taken in conjunction. Dr R has seen the child for 12 months and Ms D has seen him regularly. It was submitted that the Court should consider s 60L counselling. Given that family violence was conceded, it was submitted that joint parental responsibility was not appropriate.
In respect of the mother’s capacity to facilitate the relationship, counsel pointed out that the mother’s position was that the most important thing for X was routine. His birthday was on the forthcoming weekend but the mother had not sought to disrupt the extant orders.
Counsel for the father submitted the parties needed assistance. He submitted that Dr R was partisan and that she should be prevented by court order from continuing to be a treating practitioner for X. It was submitted that orders should be made as sought in the father’s case outline and the parents should not come together at changeover. They should immediately be ordered to apply to the contact facility in Cranbourne.
The Primary Considerations
Ostensibly, everybody agrees that it is in X’s best interest to have a meaningful relationship with each of his parents. Nonetheless, as I find, the mother is, at best, ambivalent about X seeing his father. This reflects her ongoing state of mind as a result of the father’s behaviour during the relationship, which I repeat again was only a marriage for approximately a year, during which there were numerous arguments in which it is reasonable to accept that she would have been scared, given the matters to which I have already referred.
So far as X in his father’s care is concerned, there is no reason to doubt the report of Dr D and I accept the father’s evidence that X is fine in his care. Thus, while there has been family violence, there is in my view no risk whatsoever that the father will harm X.
The Secondary Considerations - Section 60CC(3)(a)
In one sense, X has expressed views in as much as he has told his mother the concerning things he has told her about his lack of desire to spend time with his father. On another view, however, he has expressed pleasure being in his father’s care to the father. On any view of the matter, X is a very young child who has the misfortune to suffer from autism. Any expression of his views must be approached with very considerable caution. As I find, there is a very substantial risk that much of X’s expressed reluctance to see his father, including the observations that mum says, “I can’t hug you,” derives from an appreciation of his mother’s anxiety about him spending time with the father.
Section 60CC(3)(b)
Despite the evidence of the treating professionals, it is clear from Ms J’s observation, and the evidence of the father which I have accepted, that X has a good relationship with his father notwithstanding the substantial period of time that the father was, at his own election, absent from his life. He also plainly has an excellent relationship with his mother who has always been his primary carer.
The nature of X’s relationship with his mother is, however, in one sense, not wholly clear. It is not known with certainty to what extent X may be enmeshed with the mother’s fears of, and concerns about, the father. X, also, it seems, has regular contact with the maternal grandmother and, to a lesser extent, the maternal grandfather. He has not even met the paternal grandfather.
Section 60CC(3)(c)
No criticism whatsoever can be made of the mother under this subsection. She has looked after X since separation entirely on her own until court-ordered time with the father recommenced. As a matter of practical politics, time with the father is so limited that the mother has, and continues, to make decisions about all the issues that affect X. The father’s conduct is more open to question. His explanations for his withdrawal from X’s life from 1 September 2012 until mid-2014 are in my view unconvincing.
As I find, he was overwhelmed by his circumstances and, having seen him give his evidence over a reasonable period of time, I have no doubt that self-absorption is a part of his personality. In effect, he was too busy worrying about himself to be concerned with his relationship with his son for a relatively considerable period of time. To his credit, however, he has thought better of that inappropriate position and has made every proper effort since this case was commenced to spend time and communicate with X. There is no doubt that his desire to see X is one born out of genuine love and affection.
Section 60CC(3)(ca)
Although, obviously, this is an important subsection, there is little to be added to what I have just set out immediately above. If I understand the matter correctly, the father pays child support as assessed.
Section 60CC(3)(d)
This, in the context of this case, is a matter of considerable significance. It is the mother’s case, fervently felt, that any increase in time with the father for the foreseeable future is likely to be disastrous for X’s wellbeing. The father’s case is, of course, quite the opposite. Ms J, who alone has seen the child with both parents, has recommended increases of time. Those recommendations, however, set wholly to one side the mother’s evidence as to how X actually responds to time with his father and the evidence of Ms D, which, as I have earlier indicated, I accept.
Section 60CC(3)(e)
There is no difficulty in relation to expense arising from the possible spending of time by X with his father. The practical difficulty is, of course, the mother’s experiences before and after X goes to time with his father and her interrelated anxiety about those matters.
Section 60CC(3)(f)
Both of these parents might be thought to have their weaknesses. The mother is apparently unable to assist X to go and see his father without massive disruption. The father’s description about the mother’s endless cuddles upon changeover was given with conviction and had the ring of truth about it. The mother needs to work at finding a way in which to disengage from X more effectively. I have already commented upon the relatively superficial aspects of the evidence given by each of the parents. The mother, to an extent, lacks insight in this regard.
Similarly, however, the father also lacks insight. Whilst superficially he was prepared to make concessions as to some of his past behaviour, the impression I got was of a person fairly well satisfied with himself. His accusations that the mother simply lies or exaggerates about X’s presentation before and after time with him shows a marked lack of insight. Both parents’ lack of insight is a qualification to their capacity to provide for X’s needs. Having said this, however, it is equally clear that they are both very loving parents. They are both, it would seem to me, able in a general way to care for X without risk.
Section 60CC(3)(g)
This subsection has, in substance, already been dealt with. X is very young and is autistic. The extent of his disability is still not yet finally known. He is the subject of therapeutic intervention, the outcome of which is uncertain as it has only recently started. I have already made a number of criticisms of each of the parents, and it is not necessary to repeat them. Obviously, X’s autism is a significant factor which will require detailed attention and consideration as things move forward.
Section 60CC(3)(h)
This is irrelevant.
Section 60CC(3)(i)
This is an important matter, but has already been dealt with above. I have already commented upon the attitudes of the parents to the child and to the responsibilities of parenthood that they have demonstrated.
Section 60CC(3)(j)
There clearly has been family violence as I have already indicated. It is clear that there was substantial numbers of arguments in the period leading up to separation and that the incident when separation occurred very regrettably took place in X’s immediate presence.
Section 60CC(3)(k)
The Intervention Order made for one year was made without admissions. It has now expired.
Section 60CC(3)(l)
This is a matter that has come to concern me increasingly as I have been considering this matter. Both parties would doubtless like to bring the matter to an end. There is an obvious desirability in doing so. Nonetheless, it seems to me that the position is simply too plastic to be the subject now of orders that will take X through to an established routine when he is at school. I am going to order the parties, as I have indicated, to participate in the pilot parenting orders program presently underway at (omitted).
I am going to adopt the recommendation of Ms D for a period of some six months and bring the matter back. I am also going to appoint an Independent Children’s Lawyer. It might be thought at one level of analysis that this is very late in the day to appoint an Independent Children’s Lawyer and also to question such an appointment given that both parties are legally represented.
Nonetheless, this case presents an unusual forensic challenge given that I have found that the evidence of the two parents is generally to be accepted. A closer supervision of the conduct of the case and the involvement of an independent third party will assist the court to arrive at definitive conclusions. On the evidence as it stands, it is simply not possible to make final orders.
Section 60CC(3)(m)
The father’s counsel has sought that I make an order prohibiting the mother from continuing to consult with Dr R. Given Dr R’s presentation during the case, that is an understandable submission. This is not one, however, that I am prepared to make. Consultations with Dr R are not that frequent. There will be not that many in the next six months. Furthermore, Dr R, although she is the treating paediatrician, is not the treating therapist. Speech therapy is being given by Ms T and the treating psychologist is Ms D. Both of them struck me as being properly open to engagement with the father.
One of the further reasons why I am not prepared to make final orders at this stage is that I think that it is more probable than otherwise that, assuming only that each parent can properly absorb the court’s findings, the interaction of the father with Ms D and Ms T will be extremely beneficial both to the father and to the mother and to X. Assuming the parties progress together, there is a real chance that matters may settle down and that the court will be in a better position to assess what orders are in X’s best interests on an ongoing basis when the matter returns to court.
Conclusion
Although I have said this more than once, I repeat that this is an exceptionally difficult case. X, obviously, has a warm relationship with his father who loves him dearly. At least superficially, everybody agrees that it is in X’s best interests to spend time with his father. The true position of the mother, well and truly supported by Dr R, is that time should effectively stop.
The orders I am making which will reduce the time by half but make it twice as frequent make eminent sense as a temporary way forward. This will hopefully give the parties the opportunity to cooperate in X’s best interests to ease his fears and concerns before he goes to see his father and to enable him to enjoy that time all the more. The matter will be revisited when the various forensic steps I have described have been undertaken.
I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Date: 20 January 2017
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