Turner and Turner

FAMILY COURT OF AUSTRALIA

TURNER & TURNER

[2011] FamCA 987

FAMILY LAW – PARENTING – Father’s time spent with the children stipulated. Father to undertake training and to consult with children’s doctors.

Family Law Act 1975 (Cth)

APPLICANT:

Ms Turner

RESPONDENT:

Mr Turner

FILE NUMBER:

SYC

6691

2007

DATE DELIVERED:

22 December 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

9 December 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Maurice

SOLICITOR FOR THE APPLICANT:

Elliot Tuthill Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Gould

SOLICITOR FOR THE RESPONDENT:

Beswick Lynch Lawyers

Orders

In addition to the time set out in the parenting orders dated 9 December 2011 in proceedings between these parties, Mr Turner (“the father”) shall spend time with the children B and C (“the children”) as follows:
(a)       During school term:
(i)in Term 1 2012 from 9.00 am Sunday until the commencement of school Monday and from after school Wednesday until 7.00 pm;
(ii)commencing Term 2 2012 on the first weekend following the resumption of school from 6.00 pm Saturday until the commencement of school Monday and each alternate weekend thereafter;
(iii)on the second weekend after school resumes from 9.00 am Sunday until the commencement of school Monday, plus one evening every two weeks from after school until 7.00 pm.
(b)       During the Christmas 2011/2012 school holidays:
(i)from 10.30 am until 2.30 pm Christmas Day;
(ii)for two weeks commencing 9.00 am on 26 December 2011. In relation to each week the children shall spend two nights in the fathers main (not the granny flat) home(or three if he takes the children away on holidays) consecutive nights with the father on days nominated by him. Otherwise Saturdays (when the children shall remain with the mother) the children shall spend time with the father from 9.00 am until 5.00 pm each day. It is a condition of the children spending time away from his home overnight that his partner (or another person agreed by the mother) accompanies them (not as a supervisor) and that he informs the mother where the children will stay overnight;
(iii)from 9.00 am to 5.00 pm on 26 January 2012.
(c)       For the first half of all school holidays as follows:
(i)end of Terms 1 and 2 2012 for three consecutive nights nominated by the father and otherwise from 9.00 am until 5.00 pm each day;
(ii)end of Term 3 2012 school holidays for four consecutive nights and otherwise from 9.00 am until 5.00 pm;
(iii)during the 2012/2013 Christmas school holidays for four consecutive nights in each week and otherwise from 9.00 am until 5.00 pm;
(iv)in relation to school holiday time referred to in Orders 1(c)(i)-(ii) above, if the father takes the children away on holidays it is a condition of the children spending time with him overnight away from his home that his partner (or another person agreed by the mother) accompanies them (not as a supervisor) and that the father informs the mother where the children will stay overnight;
(v)commencing end of Term 1 2013 for seven consecutive nights for each of the end of Term 1, 2 and 3 school holidays; and
(vi)commencing with the Christmas school holidays 2013/2014 for seven consecutive nights, with the children to return to the mother for two nights before again returning to the father and in that pattern for the remainder of his share of the period.
That from the 2012/2013 Christmas school holidays and each Christmas holiday period thereafter, the father’s time with the children is suspended from 9.00 am Christmas Eve until 10.30 am Christmas Day.
Before the father spends time with the children for seven consecutive nights he must:
(i)attend and/or complete a program with ASPECT in relation to caring for autistic children, and
(ii)provided that they are willing to do so, confer with B’s paediatrician and the child’s occupational therapist.
Nothing in these orders limits the parties’ capacity to agree to vary these arrangements.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All outstanding applications are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Turner & Turner has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6691 of 2007

Ms Turner

Applicant

And

Mr Turner

Respondent

REASONS FOR JUDGMENT

Introduction

These are parenting proceedings which concern the parties’ two children, B who is nine and C who is six. The children live with their mother, Ms Turner (“the mother”) and regularly spend time during the day with their father, Mr Turner (“the father”).
The parties separated a few weeks before B’s fourth birthday at which time C was 13 months. By agreement, the children remained with the mother and, as was the situation prior to separation, she has continued to be their primary carer. The parties’ approach to the children’s time with the father was flexible and co-operative and the children regularly spent time with him. Although it is not entirely clear it would appear by about 2008 this included one week during school holidays. Precisely when overnight time during school term commenced is unclear.
Tensions developed in about February 2008 following which the father invited the mother to attend a Family Relationships Centre. This occurred and in August 2008 their earlier agreement was formalised in a Parenting Plan. This changed again in late 2009 so that during school term the children would spend time with the father two nights each week. Block periods of time during school holidays continued unaltered.
By and large the children spent time with the father in accordance with these agreements. This changed in April 2010, since when the children have not had overnight time with him. The catalyst for this turn of events is an incident that occurred on 6 April 2010. In short, while the children, who were then 7½ and 4½, were with the father, he left them in a park while he visited a nearby bank. It was his expectation that this would take about 10 minutes. Before he left the father spoke to adult strangers who agreed to keep an eye on the children while he went to the bank. Present in the park was a childcare worker from the vacation centre that the children attended. The childcare worker recognised the children and telephoned the mother. Although she told the mother that C was distressed, when the mother arrived at the park there was no suggestion that either child was distressed. Having spoken with the mother, the childcare worker telephoned the police. In total, the children were without parental supervision for about 40 minutes.
While the father is inclined to the view that this incident has been blown out of proportion, he acknowledges that it was wrong of him to place the children in that situation. Since then, the mother has been insistent that the children not spend time with the father overnight. In lieu, the children have spent time with him every Sunday, after school one afternoon each week, at B’s sport as well as on occasion at preschool or school.
The central issue which the Court must decide is whether, as is proposed by the mother, the children should continue to spend regular time with the father during the day or, as is proposed by him, this should include regular time overnight. For his part, the father is concerned that day only time with the children is artificially restrictive and over time is likely to compromise their lovely relationship. Basically, he says that unless he and the children have a proper opportunity to share in the full gamut of activities upon which strong parent and child relationships are based, not only will their relationships fail to develop, they may fade.
For her part, the mother emphasised that she has demonstrated her willingness and ability to promote the children’s relationship with the father. It was highlighted on her behalf that without third party intervention overnight time for the children commenced when the children were very young and only stopped when the father exposed the children to what she says was an unacceptable risk of harm. She points out that, notwithstanding his promise that the children would not thereafter be left alone, even during the day, they have been inadequately supervised by him. As to these latter incidents, which will be discussed later, these are matters upon which minds might legitimately differ. The point, however, which must not be overlooked, is that since April 2010 a number of events have occurred while the children have been with the father about which the mother is not unreasonably concerned.
The Court ordered a Family Report, which was undertaken by Family Consultant Ms D. In late 2011 the Family Consultant interviewed the parties and children and observed the children with each of their parents. To the Family Consultant, it was clear that the children enjoy warm, affectionate and comfortable relationships with each of their parents. B was clear about his desire to stay overnight with the father and presented a clear plan of how this could be structured. C made it clear that she enjoys being with both her mother and her father. No view was expressed by her about whether this should or should not include overnight time with the father.
The Family Consultant discussed B’s atypical autism in relation to which she said “[t]here is some level of increased risk for B being able to assess risk for himself in each different situation and to work out how to solve a problem”. It is her opinion that “[i]t is important to consider that, even if B has some understanding of what to do in one situation, he may not be able to apply it to another slightly different situation, as is very common for children with autism and Aspergers Syndrome”. This is a matter of some significance.
Ultimately, the Family Consultant made the following recommendations:
43.It is recommended:
·    that the time spent by the children with their father begin to include overnight time. Ideally, this should be for one night a week.
·    that overnights should not occur until the father has moved into suitable premises and the children have their own bedrooms and beds.
·    that arrangements for school holidays be clearly documented in the parenting plan and occur on a shared basis in the short school holidays based on whichever week is more suitable to each of the parents. It is recommended that the children spend time with [the father] on one or two overnights of his week and the rest of the time be during the day or afternoon each day of his week.
·    That initially B, and in the following year, C together with B, be able to go with their father on skiing or other short holidays. If [the father] were to take both children away, he may find it helpful to go with another adult or family member to ensure he can provide full supervision of both children.
44.It is recommended that the father attend programs through ASPECT Australia for education on autism.
45.It is recommended that [the father] continue to attend parenting programs to enable him to meet the children’s ongoing developmental needs. It would be helpful if he were to attend Keeping Kids in Mind (KKIM) casework program … to receive some guidance on any parenting issues arising.
The Family Consultant recommended that the father and children resume overnight time together, in relation to which she said depending upon whether the children would be with him at home or away on holidays, different approaches seemed appropriate. She was cross-examined in relation to which she demonstrated a sound understanding of the salient facts which she carefully considered. Her evidence warrants considerable weight.

Short History

The father was born in 1958 and is 53 years old.
The mother was born in 1963 and is 48 years old.
In 1985 the father was knocked unconscious in a surfing accident.
The parties commenced living together in 2000 and were married in 2002.
B was born in 2002.
In 2005 C was born.
In late 2005 the father fell off a ladder at work, in relation to which he suffered a head injury and was unable to work for about six months.
In June 2006 the parties separated.
In 2008, with the assistance of a Family Relationships Centre, the parties completed a well structured Parenting Plan.
On 3 November 2009 the parties entered into an agreement, which relevantly provided that the children would spend time with the father two overnights per week.
On 6 April 2010 the father left the children at a park while he went to a bank. Sine then he has not had time with the children.
The mother commenced these proceedings by her application filed 17 May 2010.

Applicable law in a parenting application

Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64B). They arise in proceedings conducted under Pt VII of the Act. Unless a court makes an order which changes the statutory presumption 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. The meaning of ‘parental responsibility’ is defined in s 61B as: “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children”. Essentially, the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2), the presumption does not apply where there exist reasonable grounds to conclude that a parent, or a person who lives with a parent of the child, has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DA(4)). Thus, if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements.
Section 60B sets out the objects of Pt VII and the principles, which underlie those objects. In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensure that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective, points the way to an optimal outcome. Where there are no countervailing factors, the s 60B principles may be decisive. Section 60B is set out below.
1.     The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.     The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
3.     For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC. Section 60CC contains two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)). The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)).
To the extent they are relevant to the particular case, the Court must consider thirteen additional considerations set out in s 60CC(3). Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities (s 60CC(4)). In deciding the appropriate parenting order, the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence (s 60CG).
If the Court is satisfied parents are to have equal shared parental responsibility, it must consider the practicability (s 65DAA(5)) of the child spending equal or substantial and significant time with his or her parents (s 65DAA) and whether doing so would be in the best interests of the child (ss 65DAA(1)(a) and (2)(c)). The notion of equal time requires no explanation and is decided first. If equal time is not ordered, substantial and significant time must be considered. This concept is defined in ss 65DAA(3) and (4).
Where neither concept delivers an outcome that promotes the child’s best interests, the issue is at large and to be determined in accordance with the child’s best interests: Goode & Goode (2006) FLC 93-286.
By virtue of s 60CA, the Court will determine the weight to be given to the various factors, whether they be primary or additional considerations or considerations identified as issues arising in the particular case but not specifically referred to in the Act. Ultimately, the weight attached to each factor is a matter of discretion.

The mother’s circumstances

The mother lives with the children in a home owned by her at Suburb E. She has tertiary qualifications and works 30 hours each week with a “family friendly” local employer. The mother is able to pick the children up after school every day. She enjoys good relationships with her family, as do the children.

It would appear that following B’s birth the mother was not employed outside of the home and she was primarily responsible for the children’s care and running the home. The father worked hard in his long established business. Following his 2005 accident he too was at home and for four months underwent rehabilitation as an outpatient. During this period, he suffered short-term memory loss and was emotional and very difficult to live with. After five months of trying to manage the business, care for the children who were 3½ and 6 months old and cope with the consequences of the father’s accident, the mother moved out with the children. There is no doubt that the father was very distressed by the parties’ separation. He is described by the mother as being quite “disorganised”. He would turn up at her home at any hour and sometimes screamed at her. It is to her credit that she has been able to put this difficult period into perspective and form an appropriately co-operative relationship with the father as parents to their children.
The Family Consultant fairly summarised the mother’s concern about the father’s parenting capacity and her proposals for the future at paragraphs 13 and 14 of the Family Report. These are set out below:
13.[The mother] moved to [Suburb E] four years ago to ensure that the children could have a close relationship with their father. She said that she and [the father] try to maintain the flexibility of the parenting arrangements to ensure that the children can see both parents regularly for their various events and sports. This ensures that the children see their father at other times during the week as well as the time they specifically spend with him. She believes that this works well and does not want to change the arrangements to include overnights.
14.[The mother] has concerns that [the father] is not able to recognise danger signals for the children and does not know how to manage [B] when he is anxious and in “flight mode”. She is also concerned that [the father] will leave the children unsupervised again. She worries that he does not encourage daily hygiene routines, such as teeth brushing, with the children. [The mother] believes that [the father] may have some of the indicators for autism but she is not sure if this is a residual effect from his accident and brain injury. Notwithstanding this, [the mother] said that the children are very close to their father and that he is very affectionate and committed to them.

The father’s circumstances

The father lives in what was the family home at Suburb F. This is where the children lived from birth until the parties’ separation and where they spend time with the father. The property comprises a large three bedroom freestanding house below which there is a small flat. After the children stopped spending time with the father overnight, he moved into the flat and tenanted the house. The tenants’ lease has expired. In the event he secures orders which enable the children to spend time with him overnight, he will give the tenants notice and move back into the house. In the house the children will each have a bed and bedroom. Although there was an issue about whether the father should erect a gate at the entrance to the property this became something of a non-sequiter. During closing addresses the Court was informed that the mother’s real concern related to the lack of or inadequate side fencing (about which no evidence was given). In circumstances where the children have spent years coming back and forth from the father’s property without incident, irrespective of the nature of the side fence I am satisfied that the property is suitable for the children.
The father is a tradesman and for about 25 years ran his own business. Recently, he took up full-time work as an employee at which he works Monday to Friday and, at his option, on Saturdays. His employer is aware of his situation and is reasonably flexible with the notion that the father may adjust his working hours in order to spend time with the children.
He is able to take annual leave during school holidays in relation to which it is his preference to take the children away on holidays. In the past, he has taken them on skiing holidays and to the beach at G Town. He is a passionate surfer who is enthusiastic about sharing this, skiing and other activities with the children. B shares his passion for skiing and surfing. C enjoys skiing but is less enthusiastic about surfing than her brother and father. The children and father spend a significant amount of time together during which the children are involved in these activities. Other than a couple of occasions years ago on which C was sunburnt and one when B poked her with a hot stick which caused a blister the children have not been hurt when with him.
In addition to his home at Suburb F, the father owns several other properties. Some are tenanted whereas others comprise land that he hopes to develop. He is currently building a holiday house at H Town in Queensland where he eventually hopes to regularly holiday with the children. Attached to the father’s affidavit are the plans for this Queensland home, which indicate that not only will the children have their own bedrooms but that the home will afford a comfortable level of accommodation.
The father enjoys good relationships with his family. His mother, who is in her nineties, lives in a nearby nursing home. He takes the children to visit her no less than fortnightly and ensures that they have regular contact with his brother, and his family and sees another brother a few times each year.
For nearly three years the father has been in a relationship with Ms I. Ms I has not met the children and they are unaware of the father’s relationship with her. Ms I is a professional who has three children, aged between 17 and 27 years. The father has not met her children. Ms I explained, that as part of her job, she has seen the effect on children forming relationships with their separated parents’ new partners too soon. Her point being, that it is her experience that if these relationships fail, children have to deal with yet another loss. Thus, she and the father have enjoyed their relationship as adult partners but kept a degree of independence in their dealing with each other’s family.
But for these proceedings, Ms I had no immediate plans for involvement in the children’s lives. However, if in order to secure overnight time with the children and/or to assist the mother to feel more comfortable about this, her presence is required then she is happy to participate. Because the children have not met her, before she spends time with them and the father overnight, she said it is preferable that they meet her on a number of occasions first. The father and the Family Consultant agree with this approach. Ms I impressed as a calm, considered and intelligent person who has significant childcare knowledge and experience. I am satisfied she would competently and appropriately participate in the father’s time with the children and, in the event he required a degree of assistance to fully supervise both children, she would fill the gap.
In terms of logistics, the parties live about 13 minutes drive from each other. It is a 10 minute drive from the father’s home to the children’s school. The father has collected the children from school on many occasions and has attended parent and teacher nights, school events and the like. In the event the children are with him overnight during the school week more than one night he would probably need to place them in before school care at the school. The children have previously attended out of school hours care which they managed well.
The father has reliably paid appropriate child support.

Application of the law to the facts

Before the Court is able to assess the degree of risk which is asserted to be inherent in the father’s approach to supervision of the children, it is necessary to consider the children’s degree of independence and the effect upon B of his autism viz self-regulation and safety.
When B was in Year 1 it became apparent to the mother that although he achieved his developmental milestones, he was generally late in so doing. By the middle of Year 1 difficulties were also apparent for him at school. At school he underwent a full scale IQ and psychometric assessment. This identified that he is in the borderline range for verbal comprehension skills, average range in relation to perceptual reasoning (visual processing) skills, average range in working memory and below average range in processing speed. Overall he is in the low average range.
He was assessed by a consultant general and developmental paediatrician in mid 2010 in relation to which input was provided by his school, the mother and from an assessment of the child. From this assessment B was diagnosed with an autism spectrum disorder/atypical autism. In relation to how this affects B, the paediatrician wrote “[He] appeared to have a significant impairment with the development of his social skills and communication skills, as well as difficulties with imagination, and attention skills”. Mild difficulties with reading and maths were also identified.
In terms of recommendations, the paediatrician said the following:
1.Information about Autism Spectrum Disorders including support groups and services are provided by Autism Spectrum Australia (ASPECT). [B] requires social skills training to help him improve his social communication skills. Social skills group programs are available from ASPECT [and] Learning Links [and] community health centres.
2.Obtain copies of named books to help teach [B] social skills.
3.The school could apply for learning support funding based on the diagnosis of Autism Spectrum Disorder to allow [B] to have a teacher’s aide support him in the classroom or in the playground. The school could also access further resources and guidance from the Autism Association.
4.Speech therapy is recommended.
5.Review [B’s] progress in 6 months.
The evidence does not reveal whether B attended the paediatrician this year. I infer he has not.
Armed with the paediatrician’s recommendations, B was assessed at school for teacher’s aide support. The school determined a teacher’s aide was unnecessary. Nonetheless, at the mother’s prompting, an aide is now being provided at school. He attends speech therapy and occupational therapy fortnightly and currently attends “a provisional psychologist” weekly. The mother is far more engaged with these services than the father. As I understood it, there is agreement that the father become more involved which he says he will.
B’s achievements are also important. His school reports show he is consistently courteous and well-mannered, accepts responsibility, follows school and class rules, follows directions and responds positively to correction. He enjoys many extra curricular activities which involve individual effort (surfing and skiing) and teamwork such as T-Ball and soccer. He has friends at school and in his neighbourhood. He copes with being cared for by others (out of school care) and on occasion by a neighbour of the mother’s. He has a good relationship with his sister and is strongly connected to his family. There is no difficulty for him attending vacation care and he attends a mainstream school. The parents agree that B copes best with routine and that when anxious, he may be overcome and tantrum, as well as panic, and run.
An example of what happens when B becomes anxious and runs occurred on 11 September 2011. The local spring fair, which is a popular event that draws many thousands of people, was in full swing. B became upset by the father’s insistence that he attend nippers. He ran from the father and searched the crowd for the mother until he found her. When she returned B to the father, who was himself agitated, again B ran off. The mother ran after him, calmed him down and returned him to the father. He settled and the remainder of the day was unremarkable.
Another example occurred on 6 May 2011. On that occasion, the father was with B at the child’s soccer training. B was due to attend church group immediately after soccer finished. He became distressed and ran off and hid behind a tree. Deaf to his attempts to persuade him to come with him, the father decided that the only way to resolve the situation was for him to drive to the side of the field from where he could possibly approach B from behind. B saw the father drive off. Frightened by this, he made his way to the centre of the field and left with the father. The mother’s evidence that the father “drove off in his van to then return on foot sometime later” creates a wrong impression in that it suggests that the father left the field and was absent for more than a few minutes. So that it is clear, the father drove along a road adjacent to the field and did not leave. While I agree that a better approach would have been for the father to wait on the soccer field, the father’s actions did not place the child at risk.
The significance of these matters are more about how, when B becomes anxious, the father needs to be able to respond to his anxiety in a way which helps B to both calm down and remain safe. So that it is clear, the evidence suggests incidents when B panics and runs are rare. They have occurred in both parents’ care and occasionally at school. In this regard the father has attended a group session with ASPECT and is enrolled to attend the first available face to face program run by that group. This will commence in early 2012.
The mother gave many examples of what she suggests is the father being inappropriately lax in his care and/or supervision of the children. As she is not present when the children spend time with him, she is primarily reliant upon their account of what occurs. The father is quite open with the mother about how he cares for the children and has responded openly and frankly to her questions about various incidents. In a similar vein, the father impressed the Court as an honest witness and his evidence about what occurred during these incidents is accepted. Rather than recount every incident about which the mother gave evidence, it is appropriate to discuss those that received particular attention during the hearing. These are the more serious incidents which demonstrate the gravity of risk which concerns the mother:
·Prior to April 2010, on occasions the father went to swimming training at 5.00 am. The children were asleep at home and he was absent for about one hour.
·Prior to April 2010, on a number of occasions he left the children at home in the evening for about 10 minutes when he collected a pre-ordered pizza. On one of these occasions, B poked C with a hot stick which he had been playing with in an open fire. The following day she developed a blister.
·In 2008 the father took the children skiing. He left B alone in a queue on a beginners slope while he went to the toilet. There were many adults, instructors and unaccompanied children about.
·In January 2009 the father took the children on a holiday to G Town. He left B asleep in the holiday house and took C across the road to play on swings. The father was able to see the house from the park. B awoke while the father was at the park. On the same holiday C suffered sunburn.
·That same year the father took the children skiing. He incorrectly administered B’s asthma medication and gave him both preventer medication and ventolin. B is growing out of his asthma and there has been no recurrence of this type of mishap.
·In October 2009 the father surfed for approximately 10 minutes during which C played happily on the sand. She was in his line of sight.
·On 6 April 2010 the park incident which is the catalyst for these proceedings occurred.
·On 6 May 2011 the incident when B ran off after soccer training, which has already been discussed, occurred.
·On 6 July 2011 the father and B went surfing. The father went into the beach while B was still in the water. B was caught in a rip and was assisted by another surfer into the beach.
·On 16 November 2011 the father took the children to the beach. It was raining and C did not want to surf. The father allowed B to surf between the flags while he and C sat in his van. The father was about 100 metres from the water and was able to see B. Lifeguards were on duty and B was using a soft board. There is no evidence about the surf conditions which, as B did not get into difficulty, indicates that his surfing skills were sufficient for the surf conditions.
Partly to help him as a parent, the father completed a “Parents Not Partners” course in November 2008. Since then he has continued to attend courses for partly the same reason but also to persuade the mother that she can be confident that the children are safe with him. Thus, between November 2010 and June 2011 he attended a “Building Connections” program at Interrelate, “Being a Dad” also at Interrelate, completed a triple PPP certificate “Positive Parenting Program” and “Tuning into Kids” program both at the local health centre. According to him, from discussions with the mother and these courses he better appreciates the importance of close supervision of the children and, with the benefit of hindsight, would not leave the children unattended as he did, for example, on 6 April 2010 or to go to swimming training while they slept. As has already been mentioned, he agrees that he should have handled the soccer training event differently.
The father, however, completed all of these courses prior to 16 November 2011. In addition, he had twice discussed supervision with Family Consultants. In his meeting with the first Family Consultant (who completed a parents and children’s issues assessment) he told her that the park incident had been “overblown” and that when he left the children alone (for example, when he went for an early morning swim and when he went to pick up pizzas at night) there was essentially no risk of harm. However, he made plain that he would never leave the children alone in a park again or leave the children unsupervised.
That Family Consultant explained that “[t]he children’s relatively tender ages and [B’s] recently diagnosed disability means that it is very important that they are closely supervised at all times. They do not have the sufficient maturity or cognitive capacity to keep themselves safe in all situations they may encounter”. It was her view that, at that time, the father did not appear to fully appreciate the children’s need for close supervision.
When the father spoke with the Family Consultant for the Family Report he had completed the course recommended by the first Family Consultant. C spoke to this Family Consultant “about when their father had left her and [B] in the park” and said that her father has not done this again. She said that “[d]addy knows that he cannot leave us on our own” and she would tell him not to if he did to make sure that “he did not get into trouble again”. Nor was there any suggestion from B that in the intervening 14 months he had been left unsupervised by the father or felt unsafe with him.
From her observations of the father and children and her discussions with them, the Family Consultant said (at par 35):
While [the father] has made every effort to attend parenting courses and to gain knowledge about [B’s] needs, there remains some concern about his capacity to be aware of safety for the children … On observation, [the father] appeared well aware of hygiene, rules for eating and tidying up and was perceptively tuned into the children and their feelings at the time. He was able to respond to [C’s] need for nurturing promptly and effectively and it appears that this is a normal way of operating for him. He seemed able to respond as a responsible parent and the writer had no concerns during this observation. It seems that, for the majority of general parenting, [the father] is well able to provide for the needs of the children. During the interview, it was apparent that [the father] has clear intent to learn and has demonstrated this with his following up of parenting courses. He seems to have absorbed this information as well as the implications regarding safety of leaving children on their own. It is possible that clear Court Orders and ongoing learning will be beneficial to [the father] as a parent.

These observations are consistent with the facts and are accepted.
The Family Consultant went on to say (at par 40):
The degree of supervision necessary to keep the children safe is related to a number of factors. The children are both still young and are reliant on their parents to guide and assess risk for them and to teach them life skills; they should not be left on their own in public places or in the home until they are quite a bit older. [The father] seems to have fully accepted this and has taken steps to educate himself.
The gravamen of the Family Consultant’s evidence in relation to B’s autism is that difficulties could arise for him which are unlikely to arise for similarly aged children who are not autistic. I agree. The father discussed supervision of the children and safety issues with the Family Consultant in a similar manner to his evidence. The Family Consultant’s assessment of the father’s attitude to supervision and the children’s safety was well founded.
The Family Consultant was questioned about whether the father’s failure to put a gate at the front fence of his property and the circumstances surrounding B’s surfing on 16 November 2011 altered her view about his vigilance in relation to the children’s safety and recommendations for overnight time. Simply put, appraised of these matters, the Family Consultant’s views and recommendations remained unaltered. She correctly pointed out that neither parent was concerned about the gate. While she agreed with the proposition that B should not have been alone in the water, in her opinion, the degree of supervision provided by the father and on duty lifeguards meant that neither child was exposed to an unacceptable degree of risk. I agree. So that it is clear, in relation to B this relates to his skill in the water, the nature of the surf conditions, the nature of the child’s board, he was between flags, lifeguards were on duty, few people were in the water and he was watched by the father who is a skilled surfer. It is also appropriate to observe that the mother’s disquiet about this matter is also reasonable. Like many of the events discussed above minds may genuinely and reasonably differ about whether the father’s actions were appropriate and the extent to which they may not have been.
On balance, I am satisfied that from when issues about the children’s supervision and safety were discussed with the father by the first Family Consultant, in his care the children have not been exposed to an unacceptable risk of harm, whether as a consequence of lack of adult supervision or risk taking.
Ms J gave evidence in the mother’s case. Ms J has two children who are extremely good friends with B and C. Ms J knows the subject children well who on average visit her home 4-5 times per week. On occasion, they stay overnight. There is no evidence either child is troubled by sleeping away overnight and I infer they are not. This is a matter of some significance and was not known by either Family Consultant.
Ms J corroborates the father’s evidence that the mother is, to use his words, “a great mother”. Her evidence that the children are happy to see the father and that C, in particular, is very excited to see him is consistent with the observations made by the Family Consultant about the children’s interaction with him. Ms J has observed B’s tantrums and the skilled way in which the mother settles him. In a similar vein, she has seen that B prefers routine and gains comfort from his home surroundings.
Particular emphasis was given to Ms J’s evidence that she has seen the father allow the children to alone cross the road upon which the mother lives. This road passes through an area which is a combination of residential and industrial development. According to Ms J it is extremely busy. While that may be an accurate description at particular times, cross-examination revealed that at no time has Ms J seen the children cross when the road was busy or indeed, when cars were about. The effect of the father’s evidence, which is accepted, is that the children wait with him and cross when he is satisfied it is safe. While I agree it would be preferable for the father to walk across the road with the children, the evidence does not establish that he has allowed the children to cross the road unsafely.
On balance, I am not satisfied that overnight time by the children with the father involves an unacceptable element of risk. The evidence has established lapses in his judgment in relation to an appropriate degree of adult supervision, instances of which have involved unnecessary risks to the children. While the children have not been harmed, this does not detract from the fact that they may have been. To this day, the father has no idea who the adults were in the park into whose care he entrusted the children. While they may have been perfectly appropriate, it is no less probable that the children were not safe.
Looking to the future, however, it does not necessarily follow that the father is more likely than not to erroneously exercise judgment in relation to supervision and taking risks with the children. While his approach to these matters will possibly always differ to the mother’s parenting style, I am satisfied he is likely to keep the children safe and provide adequate adult supervision. So that it is clear, I do not intend to convey an expectation by the Court that the father will no longer take the children skiing, surfing or otherwise engage in the physical activities which he and the children enjoy. After all, it should not be forgotten, that it was under his care that both children (without mishap) learned to ski and surf.
A particular challenge faced by both parents, relates to B’s autism. Thus far, the father has cared for B with far less information about how best to manage B when he becomes anxious and to minimise B’s anxiety, than the mother. Before the father could have B comfortably in his care for more than a few consecutive days, it is important that the father confers with B’s therapist, paediatrician and completes the ASPECT course which he is due to commence in early 2012. It is possible that B’s therapist and paediatrician may, as busy professionals, have insufficient time to confer with the father. Provided he attempts to meet with them, as well as completes the ASPECT course, I am satisfied he will have done what can reasonably be expected.
Although the mother will be anxious about them doing so, there is good reason for the children to resume overnight time with the father forthwith. This is what B wants and, although C did not expressly say so, the warmth of her relationship with the father shows that she too will welcome the resumption of that style of contact with him.
While changing the children’s circumstances to include overnight time with the father involves changes to B’s routine which at times he may find difficult, if the parents provide him with a planned structure so that he knows in advance where and with whom he is to be, he should adjust. To continue day only time deprives the children’s relationship with the father of much of the depth and intimacy that comes from longer periods together. It is in the context of age appropriate longer periods that parents and children have the opportunity to fully experience family life together. These longer periods provide for a better informed and well rounded relationship than can be achieved if time together is restricted and never, for example, includes sharing time together overnight. It is not beyond the realms of possibility, that unless overnight time is promptly re-established, the children may question in a way which reflects negatively on one or both parents, why it is that they can stay overnight with a neighbour, but not the father.
The pace and circumstances under which overnight time might be re-established is not without difficulty and in some respects is finely balanced.
Earlier I outlined the recommendations made by the Family Consultant. In terms of holidays away, in 2012 for B she recommended three or four nights with the father with C joining them in 2013. As I understood her evidence, this recommendation is substantially based upon her opinion about the father’s capacity to adequately supervise both children during activities such as skiing and at the beach, as well as C being sufficiently comfortable away from the mother for more than one or two consecutive days. While I understand the Family Consultant’s caution, the orders to be made will provide, from Term 2 2012, that the children spend two consecutive nights each fortnight during term with the father and slightly longer during the 2011/2012 Christmas school holidays than the one or two overnight recommended by her. The point being the children and father will be given somewhat more consecutive time together than she anticipated. It is also appropriate that reasonably significant weight is attached to both children’s enjoyment of school holiday and overnight time with the father prior to April 2010. Before this was suspended, C was comfortable in the father’s care overnight, at his home and for up to one week during school holidays. The warmth of her relationship with the father satisfies me that she is likely to happily enjoy longer periods of time with him earlier than recommended by the Family Consultant.
I agree with the Family Consultant that participation by the father’s partner in the initial overnight periods away from his home is appropriate and will make it easier for him in these initial periods to ensure both children have adequate adult supervision. This need not continue indefinitely. These and the matters discussed in the paragraph above tips the balance in favour of C participating in holiday time away with the father simultaneously with B.
It will be seen that both school holiday and term time are graduated. The graduation and structure during term time balances B’s particular need for routine, that the parties agree sports activities on Sundays for the children and father are important and that significant mid week time on an ongoing basis is potentially disruptive. As to the latter point, this is not conceded by the father but it is my view.
The orders do not provide for the children to ever have longer than seven consecutive nights away from the mother. In the long term, I have reservations about whether B would cope with periods longer than that and also, notwithstanding his best intentions, consider that the father might struggle to maintain the higher level supervision for more than seven consecutive days.
I am conscious that during term time, the mother and children will not have a weekend together and that the orders will result in the children being with her every Christmas Eve until Christmas morning. As to the former it was the parties’ shared approach that Sundays should be spent by the children with the father. It was his preferred approach that during term he have the children one night every weekend and one night during the week. Because I have not accommodated his desire for overnight time during the week, weekend time is necessarily the focus for when the children and father can spend time together. It is on Saturdays that C dances and attends eisteddfod which is an activity she particularly enjoys with the mother. This can continue. Nonetheless, it is my hope and expectation that if, for example, the mother and children have an opportunity to have a weekend away during school term the father will be flexible and allow this to happen. In a similar vein, just as the parties have for years facilitated, without order, the father’s participation at soccer training and weekend games for B, Monday afternoon swimming classes for both children and the like, that these types of arrangements will continue.
I am satisfied that the structure of the orders that I will make will ensure that the children maintain and develop meaningful relationships with both parents, maintain and develop strong sibling relationships whilst simultaneously ensuring that their physical, emotional and intellectual needs are adequately met. Whilst one can never be certain, the orders are those least likely to lead to the institution of further proceedings.
The Court was invited to make orders by consent, which included an order for joint responsibility for making decisions about the children’s long term care, welfare and development. It is my understanding that the parties regard this as the equivalent of an order that they have equal shared parental responsibility. It is not suggested by either that at this time an equal time arrangement is appropriate, with which position I agree. The orders are consistent with the father and children spending substantial and significant time together and I am satisfied that they are reasonably practical and in the children’s best interests.
I have not made orders in relation to the father’s supervision of the children. This matter has been extensively discussed. It is my view that the existence or absence of such an order is unlikely to change the manner in which he cares for the children. Such an order may result in the mother quizzing the children more than is reasonable about the situation in the father’s home.
Beyond the agreed orders and those which provide for the children’s time discussed above, I am not persuaded that the further orders, such as for communication books, in relation to telephone contact, the non-use of babysitters and the like are required or in the children’s best interests. Although somewhat repetitive, I am strongly satisfied that the parties are well intentioned towards each other as parents and that they are genuinely committed to their children’s welfare and that these types of issues can be adequately dealt without orders.
For these reasons, I make the orders identified at the beginning of this judgment.

I certify that the preceding eighty two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 22 December 2011.

Associate:

Date: 22 December 2011

[2011] FamCA 987

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction