Tyers and Stafford
[2014] FCCA 480
•5 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TYERS & STAFFORD | [2014] FCCA 480 |
| Catchwords: FAMILY LAW – Parenting – best interests of the child – father’s attitude to the child’s diagnosis of autism – equal time arrangement and substantial/significant time arrangements considered. |
| Legislation: Family Law Act 1975 |
| Applicant: | MR TYERS |
| Respondent: | MS STAFFORD |
| File Number: | MLC 2740 of 2013 |
| Judgment of: | Judge McGuire |
| Hearing date: | 7 March 2014 |
| Date of Last Submission: | 7 March 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 5 June 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms S Dosanjh |
| Solicitors for the Applicant: | Hartleys Lawyers |
| Counsel for the Respondent: | Ms M Agresta |
| Solicitors for the Respondent: | Altavilla Vessali |
ORDERS
The Mother and Father follow all reasonable recommendations of the multi-disciplinary team assessing and treating the child X born (omitted) 2011 (“X”) as to the treatment of child’s health issues, including speech therapy and any other services recommended to assist and support his development and this Order shall act as an authority for either parent to request information from any treating practitioner of the child;
Subject to the views of the relevant professionals to the contrary, the Mother and Father shall be entitled to attend all sessions of the members of the multi-disciplinary team and the parent who has the care of the child under these orders on the stipulated appointment date shall be responsible for ensuring the child’s attendance at the appointment;
The Mother and Father have equal shared parental responsibility for the child, save in respect of health issues which are the subject of paragraphs 1 and 2 above, if there is disagreement about any major long-term decision concerning the child’s health, the parent who agrees to follow the recommendation of the multi-disciplinary team on that issue, shall have sole responsibility for making such decision;
X live in an equal time regime between his parents on a week about basis with changeovers to occur on Fridays at 5.00pm or as otherwise agreed between the parties save that:
(a)X spend from Tuesday at 5.00pm until Wednesday at 9.00am in the care of the parent that he is not otherwise with;
(b)At such other variations as agreed between the parties from time to time, including on special days.
Changeovers for the purpose of these orders to occur as agreed between the parties in writing (including SMS text message and/or communication book) and in default of agreement outside (omitted) at (omitted) Shopping Centre.
The Mother and Father forthwith enrol in and complete a Parenting Orders Program through Catholic Care in (omitted) (Ph: (omitted)) and provide proof of completion of the same to the other’s solicitor.
The Mother and Father forthwith enrol in and complete a Parenting Education Program for children in the pre-school stage of developments through Lifeworks (Ph:(omitted)) and provide poof of the same to the other’s solicitor.
The child forthwith be enrolled in a structured child care program to assist with his social and language development at (omitted) Early Learning Centre, (omitted) and the parents do all things and sign all documents to make the enrolment and ensure X’s attendance at the centre.
The Mother and Father will keep each other informed of any serious medical injury or illness that the child may suffer whilst in their respective care.
IT IS NOTED that publication of this judgment under the pseudonym Tyers & Stafford is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 2740 of 2013
| MR TYERS |
Applicant
And
| MS STAFFORD |
Respondent
REASONS FOR JUDGMENT
Applications and Issues
These proceedings concern X who was born on (omitted) 2011 and is just three years old. X is an only child although his father, Mr Tyers, has an adult child from a previous relationship.
X was assessed at the (omitted) University on 29 August 2013 as meeting the criteria for a DSM-5 diagnosis of Autism Spectrum Disorder or a diagnosis of Pervasive Developmental Disorder – Not Otherwise Specified (PDD-NOS) being an Autism Spectrum Disorder. X’s mother, Ms Stafford, accepts the diagnosis or diagnoses and has been active in seeking appropriate attention for X. Mr Tyers is not so accepting of the diagnoses and in cross-examination conceded and confirmed that he does not accept such a diagnosis. It follows that he has not been so active (and he concedes this) in addressing that diagnosis for his son. He says, however, that he has been reactive to and accommodating of all recommendations of the treating professionals for X. This then is a major issue between these parents. The mother emphasises the father’s unwillingness to accept the diagnosis and argues that X should be primarily in her care given her superior insight and that she will be more responsive and more immediate in acting in respect of these and other issues which may arise for X during his childhood and adolescence. For his part, the father says that he is not obliged to accept the diagnosis but has and will continue to act appropriately on proper advice. He indicated that to the family reporter and that he considered the mother in the following terms:
Mr Tyers also believes Ms Stafford constantly believes that there is something wrong with X and seeks out professionals to support her own inadequacies as a parent. [1]
[1] Family Report page 15 paragraph 34
The majority of the closing submissions of counsel for each of the parties was directed to the issue set out above. Indeed, my notes suggested that there was a miniscule, if any, cross-examination of either party as to any other issues. This is somewhat surprising given that the materials filed referenced a much broader spectrum of issues and alleged concerns by each parent against the other and including mental illness, attempted suicide, a history of illegal drug use by the father; a history of prescription drug abuse by the mother; an allegation of the mother allowing X contact with (and living with) her own brother who is allegedly a threatening and violent individual, and a number of other issues that on the face of the documents one might consider to be highly relevant and expect to be agitated in respect of the best interests and living arrangements of a child so young and potentially vulnerable as X. Nevertheless, the orders sought by each of the parents, and despite the colourful histories and allegations raised by each of them, should have alerted me to the fact that neither of them could have or did, in fact, place any great relevance on such prima facie dangerous activities or concerns as to the parenting capacity of the other given that they each sought orders which would provide X to live in the “substantial and significant” care of each parent albeit not on an equal time basis and that, at least by the time of final submissions, there seem to be no argument as to any specific conditions being placed on either parent’s time with X.
The mother sought orders in the following terms[2]:
[2] See mother’s amended response filed 17 February 2014
1. That in respect of the child X born (omitted) 2011 (“the child”), the Mother and Father attend and engage with the multi-disciplinary team assessing and treating the child in regard to his Autism diagnosis;
2. The Mother and Father follow all reasonable recommendations of the multi-disciplinary team as to the treatment of child’s health issues, including speech therapy and any other services recommended to assist and support the child’s development and this Order shall act as an authority for either parent to request information from any treating practitioner of the child;
3. Subject to the views of the relevant professionals to the contrary, the Mother and Father shall be entitled to attend all sessions of the members of the multi-disciplinary team and the parent who has the care of the child under these orders on the stipulated appointment date shall be responsible for ensuring the child’s attendance at the appointment;
4. The Mother and Father have equal shared parental responsibility for the child, save in respect of health issues which are the subject of paragraphs 2 and 3 above, if there is disagreement about any major long-term decision concerning the child’s health, the parent who agrees to follow the recommendation of the multi-disciplinary team on that issue, shall have sole responsibility for making such decision;
5. The child live with the Mother
6. The child spend time and communicate with the Father as follows:
a) in week one, from 10.00am on Friday until 6.30pm on Sunday;
b) in week two, from 10.00am on Wednesday until 6.30pm on Friday;
c) on Christmas Day as agreed between the parties, and in the default of agreement as follows:
(i) From 12 noon on Christmas Eve 2014 until 12noon on Christmas Day 2014 and each alternate year thereafter;
ii) From 12noon on Christmas Day 2015 until 12noon on Boxing Day 2015 and each alternate year thereafter;
d) on Easter Sunday as agreed between the parties, and in default of agreement from 10.00am to 2.00pm;
e) on Father’s Day as agreed between the parties, and in default of agreement from 10.00am to 2.00pm;
f) On each of the Father and the child’s birthdays as agreed between the parties, and in default of agreement, for a period of four hours, from 2.00pm to 6.00pm;
g) Any such further or other times as agreed between the parties in writing (including SMS text message and/or communication book).
The mother then sought numerous other orders directed at both she and the father in respect of their ongoing psychological support and parenting education.
Noteworthy in the mother’s application is the that seeks no protective constraints or conditions on X’s time with the father. I must therefore infer that any concerns or criticisms set out in the mother’s affidavits to have ameliorated by the time of the trial.
The father sought orders for X as follows:
(1) That the parents have equal shared parental responsibility for X;
(2) That X live with the father;
(3) That X spend time with the mother as follows:
(i) Until X commences school:
(a) In week one from 10 am Friday until 10 am Monday;
(b) In week two from 10 am Wednesday until 10 am Friday:
(ii) Once X commences school then the fortnightly regime is amended slightly as follows:
(1) In week one from after school or 3.30 pm on Friday until 10 am Monday;
(b) In week two from after school or 3.30 pm on Wednesday until before school or 9 am Thursday;
(iii) On special days.
(4) For one half of all school holidays.
I pause to further note at the early stage of these reasons that effectively each of the parties is seeking an order for equal shared parental responsibility although the mother is more cautious and particular in the orders that she seeks. I find this noteworthy again given my comments above as to, firstly, each parent’s criticisms of the other in respect of their dealing with X’s autistic condition, if any, and secondly, the inference that I must draw that each of the parties determined not to prosecute or agitate within any vigour (if at all) any of the prima facie important issues raised on the face of their affidavits.
Background
The father is 47 years of age. The mother is 44 years old. They commenced cohabitation in March 2008 and finally separated into different homes on 19 March 2013. They agree that separation under the one roof had taken place during 2012.
On 19 March 2013 the mother left the home and taking X with her. On a complaint by the mother, Victoria Police made an application for an Intervention Order in a state court on her behalf and naming X as a protected person. I can only assume that the mother made allegations of violence or risk of violence such as to be able to convince the police and the learned magistrate to make such orders. She also says that she sought the advice of a solicitor (apparently not her current solicitors) around that time resulting in X not having any contact with his father for approximately four weeks. The mother in cross-examination firmly blames her solicitors for that advice and its result. The father accordingly was obliged to bring an application for a recovery order which resulted in interim consent orders on 24 April 2013 as follows:
(1) that X live with the father;
(2) that X spend time with the mother each Tuesday, Thursday and Saturday from 9 am until 5 pm;
(3) an order for a report pursuant to section 11F of the Family Law Act;
(4) an airport watch list order in respect of X and preventing his removal from the Commonwealth of Australia;
(5) an injunctive order preventing the father using any illicit substances at any time;
(6) orders for the parties to attend supervised drug screen testing.
A report prepared pursuant to Section 11F of the Family Law Act 1975 (“The Act”) was released on 3 May 2013 and resulted in further interim consent orders on 13 May as follows:
(1) that X live with the father;
(2) that X spend time with the mother as follows;
(a) week 1: Tuesday, Thursday and Saturday from 9.30 am until 5.30 pm;
(b) week 2: on Tuesdays and Thursdays from 9.30 am until 5.30 pm and from 5 pm on Saturday until 5 pm on Sunday;
(3) that the mother be restrained from driving with X in the car pending written clearance from an optician;
(4) that the mother not engage any new practitioners for X without the consent of the father;
(5) that the mother ensure that her brother Mr M not be in attendance for the overnight time for X with the mother;
(6) that the parties were to obtain psychiatric assessments.
An order was made for a full family report and that was released on 17 January 2014.
The mother is originally from (country omitted). She came to Australia in 1996 with her younger brother and as refugees. Her parents and other sibling remain living in (country omitted).
Ms Stafford suffers from hydrocephalus which was diagnosed in 1998 and which has historically affected her vision and her balance and also caused significant pain for which she is prescribed Endone, a morphine based medication.
The mother is now unemployed having previously worked in the (omitted) industry. She lives with her brother at (omitted), a (omitted) suburb of Melbourne. There is no evidence that she has re‑partnered.
Her current accommodation comprises a two‑bedroom unit and she indicated that her brother may vacate his bedroom and the home in favour of X.
Mr Tyers describes himself as a “homemaker”. There is no evidence that he has re‑partnered. He claims to have been X’s “primary carer”. He appears to have been previously self-employed but not since X’s birth in 2011.
Mr Tyers admits to being a previous marijuana user but not for the last 18 months.
Mr Tyers lives in (omitted), which is also a (omitted) Suburb of Melbourne.
Mr Tyers denies any health issues and certainly denies to the family reporter the allegation by the mother that he had attempted suicide by overdosing on her medication. He also denies the particulars of the allegations of domestic violence directed at him by the mother. He in turn alleges verbal violence from the mother to him during the relationship.
The Evidence
The father relied on two affidavits filed 18 February 2014 and 27 February 2014. He was cross‑examined.
The mother had her two affidavits sworn 24 April 2013 and 13 February 2014 read into evidence. She was cross‑examined.
The mother also caused affidavits from Ms T, Ms K, Mr M and Mr N to be filed. None of these deponents was required for cross‑examination.
The court had medical evidence in respect of both of the parties in various forms and usually by way of annexure to their own affidavits. The authors of the medical reports were not required for cross-examination.
The court also had the benefit of a family report prepared by Ms H, family consultant, and dated 16 January 2014. That report was prepared following interviews with the parties and observations with X in November 2013.
Ms H’s report generally relates the versions of history consistent with the parties’ affidavits. The mother makes allegations of domestic violence. The father offers denials. He expresses his concerns in respect of the mother’s medical conditions. Each expresses concern in respect of the other’s drug use, illegal and prescription. She relates concerns as to the father’s emotional or psychological health including the allegation of attempted suicide.
Ms H helpfully summarises the psychiatric assessments of both parties prepared by Dr C in August 2013 given that Dr C did not give evidence. Ms Stafford is noted as not presenting with any evidence of major mental health condition or any depressive condition. Dr C is noted as assessing Mr Tyers not meeting the criteria for a major depressive disorder but fitting the category of an adjustment disorder with a depressed mood. It seems that any depression for Mr Tyers is situational but Dr C recommends that Mr Tyers undertake psychological support to assist him in his mood difficulties.
Significantly given the status quo and the application by each of the parents to be primary carer of X, Ms Stafford is reported by Ms H at paragraph 23 of the family report as follows:
At the interviews on 4 November 2013, Ms Stafford suggested a week about parenting arrangement as an alternative to the current arrangement. Ms Stafford responded emotionally when the possibility of her not being X’s primary care giver in the long term was discussed and she cried and said “it would be devastating if he was to stay with his father, he should be with me.” Ms Stafford stated if X is returned to her primary care it is her intention to work part time and for X to attend child‑care on the days she works.
In respect of the parenting options, Mr Tyers is reported by Ms H at paragraph 24 as follows:
In discussion with Mr Tyers if X was to be placed in Ms Stafford’s care his response was limited and rigid. Mr Tyers indicated he was unable to consider this possibility and he believed that X was placed in his care by the court because Ms Stafford presents as a risk to X. Mr Tyers firmly believes X should remain with him and spend time with Ms Stafford.
Ms H at page 11 of her report identifies the issues between the parties as the following:
·Disparate information provided by the parents regarding X’s care history;
·X’s diagnosis of Autism and his special needs;
·Mutual allegations of family violence to which X has been exposed;
·The parents’ unresolved relationship issues and the impact on X;
·Concerns about Ms Stafford’s physical health coupled with allegations that she abuses prescription medication and the impact of this on her parenting capacity.
The emphasis at the trial by way of cross‑examination and final submissions was on the insight and capacity of each of these parents in respect of X’s alleged diagnosis of Autism. Further, the proposals of each of these parties is effectively inconsistent with any argument that either parent poses a risk to X by reason of matters of family violence or lack of parenting capacity. To put it simply, it would be disingenuous for the mother to argue such risks if she proposes that X spend four or five nights a fortnight with the father unconditionally. The same comments apply to the father.
The focus of Ms H’s report is also in respect of the parties’ understanding of X’s condition. Ms H had the benefit of a report from Ms C, speech pathologist, dated 31 May 2013 and an assessment from Dr S, general paediatrician, dated 31 October 2013, together with the assessment from the (omitted) Early Assessment Clinic for Autism Spectrum dated 29 August 2013. I have also had the benefit of those documents but not the authors to give evidence and be tested on the reports. It is fair to conclude that the experts favour a diagnosis of X fitting on the Autism Spectrum.
Ms H notes disagreement between the parties as to X’s language development. The parents also differ in their responses to X’s behavioural tantrums.[3]
[3]Family Report, see paragraph 33.
Ms H concludes as a recommendation that X live primarily with his mother but suggests that he spend five nights per fortnight with the father in two blocks being from Friday afternoon until Monday morning in week 1 and from Tuesday at 10 am until Thursday at 10 am in week 2. She recommends no conditions on X’s time with either of the parents but suggests some educative assistance for each of them.
I did not have the benefit of Ms H being cross-examined and her report was simply read into evidence. My reading of the report, however, suggests that she bases her recommendation on two broad conclusions. Firstly that Mr Tyers might not necessarily accept or react appropriately to X’s diagnosis. At paragraph 64, Ms H opines:
Mr Tyers appears to minimise the concerns raised by a number of professionals in regard to X’s language development and his behaviour. He appears reluctant to engage with services that are necessary for a child’s development, such as structured child care... Although he is X’s primary caregiver Mr Tyers does not attend maternal and Child Health appointments and appears to have designated the role of attending playgroup with X to Ms Stafford. He has not responded to any of the developmental and medical recommendations regarding X’s care nor attended any appointments with professionals...
Secondly, on the basis of un-particularised and undisclosed apparent sociological theory. Ms H says at paragraph 59 of her report:
Based on what is known about infants and young children and their attachments and sense of time, the literature and research strongly supports the view that at X’s age and developmental stage, he will benefit from a primary residence with one parent, secure attachments with each parent, stable and consistent routines and regular and predictable contact with the other parent and limited periods of separation from both parents.
The Relevant Law
In determining parenting orders I am to have X’s best interests as my paramount consideration.[4]
[4] Section 60CA of the Act
The Act provides a presumption that it is in the child’s best interests for the parents to exercise equal shared parental responsibility meaning all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[5] Such responsibility usually manifests in the long-term and important decisions to be made for children including matters such as medical procedure, education, religion and the like.
[5] Section 61B of the Act
The presumption of equal shared parental responsibility is not applicable if the court is satisfied that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or family violence.[6] Alternatively, the presumption is rebutted by evidence satisfying the court that it would not be in the best interests of the child for the parents to exercise equal shared parental responsibility.
[6] Section 61DA of the Act
If the presumption of equal shared parental responsibility applies or such an order is made in the best interests of the child then the Court is obliged to follow a statutory and intellectual course of consideration. Firstly, it must consider whether it is in the child’s best interests and reasonably practicable for the child to spend equal time between the parents. If the answer to either of these questions is in the negative then the court must move to consider whether the child spending (substantial and significant time) with each parent is both in the child’s best interests and reasonably practicable.
“Substantial and significant time” is defined in the Act[7] as:
(a) the time the child spends with the parent includes both:
(i) those that fall on weekends and holidays; and,
(ii) those that do not fall on weekends or holidays; and
[7] section 65DAA(3)
(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 the occasions and events that are of special significance to the parent.
Each of the parents in the matter now before me seek orders in the form of “substantial and significant time”. I am satisfied by reasons of geography and history that such proposals would be reasonably practicable. It is important to understand, however, that the court is not occupied in simply choosing between the options offered by the parents. The task for the court is to make parenting orders that are in the best interests of the child and, in this sense, may formulate its own proposal. For example, it is incumbent upon the court to consider whether the child spending equal time between the parents is in the child’s best interests whether or not that option is posed by the parties.
X’s best interests are determined by the mandatory reference of the probative evidence and the parties’ proposals to the numerous considerations set out in section 60CC of the Act. A framework for those pragmatic considerations is provided in section 60B. Which sets out the objects and principles of the legislation in the following terms:
(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).
Sections 60CC(2) and (3) of the Act set out the numerous pragmatic and evidence based considerations.
X’s Best Interests – Section 60CC factors
Section 60CC(2) (a) - the benefit to the child of having a meaningful relationship with both of the child's parents;
The evidence satisfies me that X has developed a bonded, attached and meaningful relationship with both his parents, despite his young age and the parents’ personal differences and conflicts. He has maintained regular and frequent time with both parents save and accept for the four or so weeks he was kept from the father by the mother in May 2013.
The task for the court here is a prospective one in that the objective is to make orders which assist the child in his relationships with each of his parents moving forward. In this sense the consideration is one of quality rather than quantity of time in that the success and meaningfulness of a relationship is gauged on its quality and not just by reason of allocating weeks, days or hours of time.
I am satisfied that the proposals of each of the parties would benefit X in his relationships with both parents. He is still young and needs frequency of direct contact in order to maintain his attachments and assist them to develop and flourish. The proposals before me would accommodate X in this regard.
Section 60CC(2) (b) - The need to protect the child from physical or psychological harm, from being subjected to or exposed to, abuse, neglect or family violence.
Recent amendments to the Act oblige me to place a greater weight on this consideration. Nevertheless, on the material before me and, in particular, given the lack of testing of this evidence in the face of denials, I am unable to make findings on the balance of probabilities that either party has been violent within the broad definition in the Act or poses a risk to the child into the future. Each party makes allegations against the other. However, it cannot be the case of either parent that they argue for X to be at risk in the care of the other parent by reason of a propensity for family violence (or the other allegation of drug abuse) given that each proposes an unconditional regime of substantial and significant time for X between his parents.
ADDITIONAL CONSIDERATIONS
Section 60CC(3)(a) – Any views expressed by the child.
X is an infant and unable to formulate views as to his parenting and living arrangements.
Section 60CC(3)(b) – The nature of the relationship of X with each of his parents.
The parties agree that each of them have a close and loving relationship with X. Each parent has been keen to adopt the tag “primary” in respect of their parenting but the evidence suggests an ongoing involvement by each of them in the sense of quality in X’s life.
The father concedes that he has taken a different role than the mother in respect of direct participation with professionals dealing with X. He justifies this by saying that he wants to avoid opportunities for conflict between he and the mother in the presence of X or those professionals.
Significantly, given the stances taken by each of the parents, they were able to be objectively positive about each other to the family reporter. At paragraph 45 Ms H observes:
Despite Ms Stafford’s wavering emotional responses to Mr Tyers it would appear overall from her interview and their combined narratives that the communication between the parents has improved and they are both now more mutually supportive and respectful toward one another. Mr Tyers also stated “Ms Stafford is much better (and) not so all over the place.”
And at paragraph 42 of that report:
According to Ms Stafford sometimes X will become upset at changeover and not want to return to his father’s care, but overall she highlighted a number of positives for X in Mr Tyers’ care. For example, she commented “He does everything for X, he is attentive and he plays well with X and he seems to care for him well.”
Section 60CC(3)(c) – The extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) To participate in making decisions about major long-term issues in relation to the child; and
To spend time with the child; and
(iii) To communicate with the child.
This consideration is at the crux of my determination and the dispute between the parties. The mother indicates a concern as to Mr Tyers not accepting the diagnosis of autism and his willingness and ability to manage X’s autism/behavioural problems and his speech development.
In cross-examination Mr Tyers conceded that he does not accept the assessment or diagnosis of autism. The family reporter, Ms H, shares Ms Stafford’s concerns that the father minimalises these issues for X and hence may be reluctant or less inclined to attend to and continue suggested therapy or treatment. At paragraphs 63 and 64 of her report, Ms H opines:
X now has a diagnosis of autism, which is viewed and managed differently by each parent …
Mr Tyers appears to minimise the concerns raised by a number of professionals in relation to X’s language development and his behaviour. He appears reluctant to engage with services that are necessary for a child’s development, such as structured child care …
I did not have the advantage of Ms H’s observations and conclusions being tested; she was given the opportunity to expand on this evidence or to explain in detail for rationale for her conclusions. I was, however, able to see Mr Tyers cross-examined. His evidence was presented in a different light than my understanding of Ms H’s observations and conclusions. Mr Tyers was candid in saying that he did not necessarily accept the diagnosis of autism. He was equally certain and consistent in his evidence, however, that he did and would continue to apply the recommendations of the various professionals. In fact, X is of such a young age, that little other than some speech pathology and child care socialisation has yet been put in place for him. Mr Tyers gave no indication that he would thwart or sabotage any therapy or recommendations. He did not present as even resistant, reluctant or hesitant in adopting the recommendations of those assessing X. Rather, I saw Mr Tyers as a parent who was sceptical of a diagnosis which, in any event, does not appear to be at the higher end of the spectrum in respect of autism. X is attending his childcare/playgroup. Speech pathology is occurring or is organised. The communication between the parents is significantly improved according to each of them and Ms H. Mr Tyers seems willing to leave the role of dealing with the doctors and professionals to X’s mother. He does, however, actively seek out the reports and recommendations that flow from those visits.
In summary, therefore, I do not find myself in agreement with Ms H who concludes that Mr Tyers:
… impresses as having isolated himself, and X, from services and activities that will assist and promote his son’s optimal development.
Section 60CC(3)(ca) – The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
Not relevant.
Section 60CC(3)(d) – The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his parents.
Each party proposes a change in X’s current living regime between his parents. Effectively, they argue for positions which mirror each other. Each wishes to be the “primary” parent but with X to spend four or five nights per fortnight with the other parent. However, a close reading of the affidavits of both parents and a consideration of their evidence in Court leaves me no more informed as to justification of either parent as to why a change to such an arrangement would be in the interests of X? Indeed, the court is left to ponder the requisite differences in parenting capacity and attitude or other factors between an equal time arrangement for X and one which sees him living in a regime of nine nights per fortnight with one parent and five nights with the other parent. I sense some intellectual artificiality or simply claim to have the status of “primary parent” may lay at the foundation of such dispute.
Section 60CC(3)(e) – The practical difficulty and expense of X spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
Not relevant.
Section 60CC(3)(f) – the capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs.
At paragraph 65 of the family report, Ms H concludes:
On the basis of this assessment, Ms Stafford appears to have a strong emotional connection with X and is the parent more attuned to his developmental needs. Mr Tyers clearly cares well for X’s physical needs, and his love and concern for his son’s wellbeing is recognised. However, he impresses as having isolated himself, and X from services and activities that will assist and promote his son’s optimal development.
Again, I say it is unfortunate that Ms H was not tested as to these conclusions, which do not sit easily with my view of the evidence as a whole which included, of course, the testing of both parents by cross-examination.
Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.
Not relevant.
Section 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander.
Not relevant.
Section 60CC(3)(i) – the attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents.
The mother, supported by Ms H, argued that she is more responsible in respect to X’s health/autism needs. The mother, who has not in the interim been the “primary” parent should indeed be applauded for the proactive position she has taken in respect of X’s behavioural and speech difficulties, and resulting in the assessments that have been obtained. On a closer examination, however, I am not satisfied that the father should be criticised for the position he has taken. He is entitled to a view as to the assessment of his son. Significantly, he has not forced the child to endure further or repeated intrusive assessments simply because he does not accept the diagnosis. Rather, he has stated his view but been willing, on my assessment of the evidence, to accept the recommended treatment or therapy. In my opinion, this represents a responsible attitude by the father.
Section 60CC(3)(j) – any family violence involving the child or a member of the child’s family.
The mother directs a number of allegations of family violence against the father in her affidavit and to the family reporter. Significantly, there was little, if any, cross-examination or testing of this evidence. No reliance was left in final submissions on this factor. The allegations are, at least in a large part, historical. The orders sought by the mother, in my view, are inconsistent with her having any concerns as to the child being at risk of harm in the father’s care, be it physical or emotional. The same comments apply to the father.
Section 60CC(3)(k) – if a family violence order applies, or has applied, to the children or a member of the children’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the orders;
(ii) the circumstances in which the order was made;
(iii) and the evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter.
When the parties physically separated from living under the one roof in about May 2013 the mother obtained an interim intervention order on an ex parte basis and with the assistance of Victoria Police. The relevant result of that application was that the father was denied contact with X for at least four weeks and was required to bring proceedings in this court which resulted in X living primarily with him in the interim.
Section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
The orders made by these courts are prospective in their nature and their force and effect. They can only be final orders in the sense that a significant or material change in the circumstances of the child or either of the parents may lead to further litigation. Nevertheless, the courts make orders on the basis of a child’s best interests with reference to the evidence before it and on the balance of probabilities. It then becomes the responsibility of the parents to discharge their parenting obligations in accordance with those orders.
Discussion and conclusions
I am satisfied that X has an established, bonded and attached relationship with each of his parents. I am satisfied that both Ms Stafford and Mr Tyers are capable parents and able to attend to X’s physical, intellectual and emotional needs, and despite the different stances taken by each of them in relation to X’s special needs.
Each of the parents covets the title “primary parent” but concedes substantial and significant time, effectively unconditionally, to the other parent. The legislation, of course, stipulates that the court must first consider whether it is in X’s best interests to live in an equal time regime between his parents? In a pragmatic sense, and this matter presents a prime factual example, the skills, facilities and commitment required to parent children for a “substantial and significant time” are often commensurate with the skills, facilities and commitment to parent on an equal time basis. Ms H, however, recommends that:
X will benefit from an arrangement where he has one primary caregiver and spends consistent and predictable time, including overnight time with the other parent[8].
[8] Family report, paragraph 70
Ms H’s recommendations would have X living with the mother and spending five nights a fortnight with the father. Unfortunately, however, the text of her report does not assist me in understanding her reasoning as to such a recommendation over that of equal time. I note that neither party actually sought an equal time arrangement, although the mother raised the option with the Family Reporter I must nevertheless consider such an option. The only assistance I glean from Ms H’s report as to understanding her pattern of consideration appears at paragraph 59 as follows:
Based on what is known about infants and young children and their attachments and sense of time, the literature and research strongly supports the view that at X’s age and developmental stage he will benefit from a primary residence with one parent, secure attachments with each parent, stable and consistent routines and regular and predictable contact with the other parent and limited periods of separation from both parents.
On reflection, I am not greatly assisted by Ms H’s generic comments as to the current state of social theory. She does not provide me with particulars of authors or journal articles. I am not enlightened as to the rationale of differentiating (as a generalisation) between the requirements for parenting on an equal time basis as distinct from “substantial and significant time”. She does not particularise any benefits for X in a “substantial and significant” regime as opposed to one of equal time. My understanding of the field is that relevant social theory is a dynamic and at times controversial field.[9] Consequently, without further particulars or an obvious nexus of premise and conclusion on the face of her Report, I cannot accept the generalised statement of Ms H set out above.
[9] As evidenced between recent debate following the completion of the evidence in this matter between Professor McIntosh and her American colleague, Richard A. Warshak.
Given that I do not share Ms H’s conclusions as to the father’s responses to X’s assessment of autism, together with my concerns as to the reasoning and justification for her recommendations, I do not feel greatly assisted or influenced by those recommendations.
I accept that X is yet a young preschool-age child. He has, however, enjoyed regular and frequent time with each of his parents. He is bonded with both parents. They both now make proposals which would allow X “substantial and significant time” with the other. The parties live in close proximity. Their respect for each other and their communication has improved according to the family report and the parties themselves. All of these factors combine to satisfy me that X’s best interests are served by him living in a regime of equal time between his parents. I intend to hear further from counsel or the parties’ legal representatives as to their preferred configuration of time, but as a default regime I favour that X live with each of his parents on a week-about arrangement with the changeovers to occur on a Friday evening but to spend the Tuesday overnight with the parent with whom he is not otherwise living.
Such a regime would allow X to settle for periods with each parent. It would not provide lengthy gaps in time for such a young child where frequency of direct contact is important. The changeovers required for such a regime would not differ to those required by each of the parents’ proposals. Whilst I accept generally Ms H’s views that X will benefit by “…stable and consistent routines and regular and predictable contact with the other parent and limited periods of separation from both parents”, I am satisfied that a routine could be established in these terms as easily as by the proposals of either of the parties. “Routine” after all is, in my view, simply a synonym of consistency. I am satisfied that such a regime is reasonably practicable.
On consideration, I am satisfied that X’s best interests are served by the parents having equal shared parental responsibility for him. Given my findings and comments, however, as to the roles played by the parties, and apparently accepted by them, in respect of X’s autism, I accept the mother’s proposed order in this respect and in its particulars that:
…if there is any disagreement about any major long-term decision concerning the child’s health, the parent who agrees to follow the recommendation of the multi-disciplinary team on that issue, shall have the sole responsibility for making such decision.
I also accept the mother’s proposals specifically as to attending to X’s autism. Ms H recommends some post-separation parenting assistance for each of the parents. I am satisfied that this course is appropriate and ultimately for the benefit of X. I accept the mother’s proposals in this regard as set out in her amended response.
I certify that the previous seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 5 June 2014
Key Legal Topics
Areas of Law
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Family Law
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Remedies
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Procedural Fairness
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