Xiu and Hodges
[2011] FamCA 419
•8 June 2011
FAMILY COURT OF AUSTRALIA
| XIU & HODGES | [2011] FamCA 419 |
| FAMILY LAW - CHILDREN - Best interests FAMILY LAW - CHILDREN - Parental responsibility - Presumption of equal shared parental responsibility |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Ms Xiu |
| RESPONDENT: | Mr Hodges |
| INDEPENDENT CHILDREN’S LAWYER: | Maria Barbayannis |
| FILE NUMBER: | MLC | 6222 | of | 2008 |
| DATE DELIVERED: | 8 June 2011 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Dessau J |
| HEARING DATE: | 19 August 2009, 25 November 2009, 16 March 2010, 3 November 2010, 8, 11, 12, 14 & 15 April 2011, 2, 3 & 4 May 2011 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Victoria Legal Aid |
| COUNSEL FOR THE RESPONDENT: | Dr Alexander |
| SOLICITOR FOR THE RESPONDENT: | Erica Horsfield & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Boymal |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Maria Barbayannis & Associates |
Orders
That all previous parenting orders in relation to the child K born … April 2001 shall be discharged.
That subject to paragraphs 3, 4 and 4A of these orders, the mother shall have sole parental responsibility for health and educational decisions for the child.
That the father shall be permitted to home-school the child on one day per week during school terms, on a day when the child is living with him pursuant to these orders, and being a day agreed between the parents at the start of each school year, and failing agreement, a day to be chosen by the mother provided that the mother shall be and is hereby restrained from making any appointments for the child on the home-school day unless:
(a)The father consents;
(b)It is the only available day and does not involve recurring periodic appointments, and in this event she shall give him 7 days’ notice; and
(c)She shall be responsible for transporting the child to and from any such appointments.
That the mother shall arrange an annual case conference to discuss the child’s health and education:
(a)To be facilitated by a Relationships Australia office or Family Relationships centre as advised to the parties by the Independent Children’s Lawyer, or failing that arrangement being put in place by the Independent Children’s Lawyer, the mother shall arrange the facilitator;
(b)To be held no later than the end of the third school term;
(c)To be attended by each parent and up to four people chosen by each of them, including any family, doctors, allied health or teaching professionals;
(d)With an agenda to be provided by the mother to the father at least 28 days’ before the conference, to be returned to her by the father with any additional agenda items within 14 days’ of his receipt of it;
provided that in the absence of any agreement, the mother shall determine the health and educational issues, and shall, between annual conferences, keep the father informed of any such health or educational decisions, and advise him of any appointments and he shall be free to attend such appointments.
4A. That the father:
(a)May not arrange any educational, medical or allied medical appointments for the child without the mother’s prior consent save in a medical emergency; and
(b)May continue to take the child to DEAL and to organise his use of communication devices.
Subject to paragraph 6 of these orders:
(a)The child shall live with the father during school term and holiday time, each week from immediately after school Wednesday, or from 12.00 noon Wednesday when it is a non school day, to 6.00pm Saturday; and
(b)The child shall live with the mother at all other times.
For the purposes of Christmas and Father’s Day:
(a)The child shall live with the father:
(i)From 6.00pm on 24 December 2011 to 3.00pm on 25 December 2011 and each alternate year thereafter;
(ii)From 3.00pm on 25 December 2012 to 6.00pm on 26 December 2012 and each alternate year thereafter;
(iii)On the Father’s Day week-end in each year from 6.00pm Saturday to 6.00pm Sunday; and
(iv)At such other times as the parents may agree.
(b)The child shall live with the mother:
(i) From 3.00pm on 25 December 2011 to 6.00pm 26 December 2011 and each alternate year thereafter; and
(ii) From 6.00pm 24 December 2012 to 3.00pm 25 December 2012 and each alternate year thereafter; and
(iii) At such other times as the parents may agree.
For the purpose of change-overs in these orders the father or his nominee shall punctually collect the child from and return him to:
(a)School where such time commences or concludes on a school day; and
(b)The mother’s residence when such time commences or concludes on a non school day.
The father and mother shall:
(a)Keep the other advised at all times of the child’s current residential address and landline telephone number;
(b)Advise the other immediately in the event that the child suffers any serious illness or injury; and
(c)Authorise all schools the child may attend from time to time to:
(i) Provide the other at the expense of the other, copies of all school reports, school notices and school photographs in relation to the child;
(ii) Communicate with the other either by telephone, in writing or by personal attendance, in respect to the child’s progress at his school; and
(iii) Permit the other to attend all school functions to which parents are normally invited.
That the mother shall authorise any medical practitioner upon whom the child may attend from time to time, to communicate with the father in respect to his medical condition and/or requirements, to ensure the father knows of the child’s health and any treatment.
That the mother shall be and is hereby restrained herself or by her servants or agents from writing letters or sending material to any doctors, health professionals, schools, educators, the father, the paternal grandmother or paternal grandfather, or the Department of Human Services with any complaints in relation to the state of the father’s home or car, his day-to-day care of the child, or the father’s mental health.
That the ICL shall be discharged after arranging the Relationships Australia facilitator in accordance with paragraph 4 of these orders (if it can be achieved), and after arranging for these Reasons for Judgment and a sealed copy of these orders to be forwarded to Dr R, Dr M, Dr G, Dr C and Ms W.
That all existing applications shall be otherwise dismissed and the case removed from the list of cases awaiting finalisation in the court.
That 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.
That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel and solicitor acting as counsel.
IT IS NOTED that publication of this judgment under the pseudonym XIU & HODGES is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 6222 of 2008
| Ms Xiu |
Applicant
And
| Mr Hodges |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The child K has just turned nine. This case first started in front of me when the child was four. I made final parenting orders in June 2007 when he was five. Although many aspects of his circumstances have not changed since then, on 3 November 2010 I decided that there were sufficient new facts and circumstances to reconsider parenting orders.
Before the last hearing, he was diagnosed as suffering global developmental delay. Since the last hearing he has also been diagnosed with austism and an intellectual disability. According to his paediatrician Dr M, the child has the intellectual development of a three- to four-year-old, the fine motor skills of a three-year-old, the verbal skills of a two- to three-year-old, and significant impairments in his adaptive behaviour.
Now, as at the last trial, he is not toilet-trained, is largely non-verbal (with some small progress), and has difficulties with his fine motor skills. Now, as then, he cannot independently feed, wash, or dress himself, so that he still requires 24-hour care. And now, as then, the prognosis is that he will remain severely disabled both physically and intellectually, so that he will be dependent on others for the rest of his life.
What also has not changed is that the father and the mother are devoted to the child. I noted last time that they “adore [the child] and are both committed to the labour-intensive care that he requires, his well-being, and his optimal development.” That continues.
They have, however, different perspectives as to how his well-being and development can best be advanced, and since the last orders, those perspectives have become more and more polarised. Even then I noted a widening in the gap between them, from when the case started in August 2006 until the time of the hearing in the middle of 2007. That gap is now wider again. This eight-day hearing will not have helped.
Paradoxically, now as then, despite conflict when it comes to important decisions for the child, the parents co-operate well in many aspects of his day-to-day care. They sometimes play together with the child at the mother’s home, change arrangements by agreement, and attend some medical and educational appointments together (although less than in the past).
The paternal grandmother continues to be an important person in the child’s life, a role very much acknowledged and appreciated by the mother.
Near the start of my previous Reasons for Judgment, I paraphrased the outstanding issues. A central issue was as to who should have responsibility for health and educational issues. Another was whether the child should attend X School five days’ per week, or in combination with some home-schooling with his father. And another related to the child’s day-to-day safety needs, and whether they were met in the father’s care, or whether his time needed to be supervised by the paternal grandmother. Those central issues remain.
A new circumstance surrounding the parental responsibility issue is that endeavours to retain joint responsibility have failed. A new circumstance surrounding the educational issue is that the father now proposes that the child’s school week should be divided between X School, home-schooling with him, and when it can be arranged, mainstream schooling as well. New circumstances surrounding the health issue include that the father now takes the child to a separate paediatrician from the mother, and there have been several impasses on medical or related decisions.
When I decided that this hearing should go ahead, I was mindful that final parenting orders should only be re-opened if new facts and circumstances have arisen. The pronouncement to that effect, in Rice & Asplund (1979) FLC 90-725, is clear. Litigation must be final, for the sake of the parents, but most particularly for the sake of a child. Although in this case it appears, at first glance, that the issues are the same as those already decided, the growing and deepening polarisation is in itself a significant new fact or circumstance, in that there have been difficulties for decisions to be properly and promptly made in the child’s best interests.
Both parents agree they can no longer share the decision-making for the child’s health and education. Each asks that I make them the one to do so. It is a great pity that it has come to this. Largely for the same reasons I gave at the end of the last case, I am satisfied that each parent has particular strengths when it comes to the massive task of caring for the child’s special needs. They both have weaknesses too.
Taking into account their weaknesses as well as their strengths, I am satisfied that either parent could make health and educational decisions for the child, although ideally they would make decisions together. As they cannot, I must now choose one to do so. Neither the parents, nor the many (excellent) experts, including the Family Report writer, could propose any viable alternative to making that choice. One suggestion, by the child’s GP Dr G, was to give one parent the health “portfolio”, the other, education. It was agreed by the parties, and other witnesses, that there was simply too much overlap to successfully divide those responsibilities.
There are also new issues surrounding how the child’s time is to be spent between households and as to schooling arrangements.
Currently, the child is with his father from after school Wednesday until Saturday evening, and with his mother from Saturday until Wednesday. He attends X School four days’ per week and is home-schooled by his father each Friday.
At the start of the case the mother sought orders that slightly adjusted (and slightly reduced) the child’s time with the father, so that he would be with his father from after school Thursday to Sunday morning. But she wanted the father’s time with the child to be spent at the paternal grandmother’s house, with the substantial attendance of the paternal grandmother, to meet her concerns about safety and hygiene in the father’s care.
After the paternal grandmother’s evidence that she would prefer not to have her son and the child living with her on that substantial basis, the mother changed her application, seeking orders for the child to live with her during the school week, and with his father at the paternal grandmother’s home from Friday to Sunday.
As to schooling, although open to considering mainstream schooling in the future, the mother wants the child to attend X School five days’ per week for now.
At the start of the case, the father sought orders for his time with the child to be adjusted (and significantly extended) to start at 7.00pm on Tuesday evening and to finish at 12.00 noon on Sunday. He also proposed that the child attend X School on Monday and Tuesday, with a combination of “home-schooling or mainstream schooling” for the remaining three days of the week.
By the end of the case, the father’s application was for the child to continue four days at X School and one day in home-schooling, until the father finds a “suitable” mainstream school. He proposed for the child to then spend between two and three days at X School, and between two and three days in a combination of home and mainstream schooling. He also sought to retain the current living arrangements.
The ICL declined to express any position at the start of the case. At the end, she recommended that there should be no change in the child’s current living or schooling arrangements As to parental responsibility, the ICL submitted that the mother should have responsibility for the major health and education decisions, with a case conference structure (as proposed by the mother) to ensure that the father can contribute his views.
I am conscious of the inevitable “fall-out” for the family from these proceedings. First, although there is no intention to side-line either parent – both being essential to the child’s welfare – the decision vesting sole responsibility in one parent is likely to leave the other feeling disempowered. Secondly, for eight days, these parents, who have still managed to co-operate in so many ways on a day-to-day basis in relation to caring for the child, have focussed on each-other’s weaknesses. It is inevitable that these Reasons have that same focus. It is important that all the positive things that each parent brings to the task of parenting the child should not be eclipsed by the emphasis on the negative.
Ultimately, I have decided that it is in the child’s best interests to retain the stability and consistency of the current orders in terms of his weekly time with each parent, and the combination of X School and home-schooling. I have decided too that his mother should retain the responsibility for the major and controversial decisions of health and education.
Despite the complexity of the child’s needs, the parental dynamics and personalities, and the history, short reasons could arguably be sufficient. These parents however are immersed in the detail. I am conscious that some of that detail needs to be covered, hopefully to put an end to the lingering issues between them. That said, I still cannot traverse every aspect of the evidence in the detail that the parents might want. The reasoning has to be finite.
BACKGROUND
The father is Mr Hodges. He is 43 years’ old and lives in H. He previously worked part-time as a bus driver for intellectually disabled adults. Now he cares for the child when he is with him.
The child’s mother is Ms Xiu. She is 47 years old. She is a teacher by profession, lives in a south eastern suburb of Melbourne, and is also presently engaged in the child’s care when he is with her.
Ms Xiu was born in China. She met Mr Hodges when he went there to teach English. They married in 1996 and came to Australia in 1997.
The child was born in April 2002. The parents separated in February 2005 and were divorced in June 2006.
The paternal grand-mother, Mrs Hodges, retired in 2001 after 22 years teaching adults with disabilities. Recently she has worked voluntarily in a Special Development School on one day each week.
For 16 months in 2004/2005 the child lived in the paternal grandmother’s home. The parents were both studying, and shared the child’s care with her. Since March 2005 each parent has maintained their own home, where they look after the child when he is with them. The paternal grandmother remains a support and a resource to the parents, and a loving grandmother to the child. She sees him regularly, sometimes when he is in the father’s care, sometimes the mother’s, and sometimes he stays overnight with her.
MATERIAL RELIED UPON AND ORDERS SOUGHT
The mother relied upon:
·Her case outline (Exhibit M1)
·Her application filed 17 November 2010
·Her affidavit filed 25 March 2011
The father relied upon:
·His case outline (Exhibit F1)
·His response filed 2 December 2010
·His affidavits filed 1 April 2011 and 7 April 2011
·The affidavit of the paternal grandmother filed 1 April 2011
·The affidavit of Mr D filed 1 April 2011
·The affidavit of Dr F filed 1 April 2011
·The affidavit of Dr L filed 1 April 2011
·The affidavit of Ms S filed 1 April 2011
·The affidavit of Mr H filed 1 April 2011
·The affidavit of Ms Z filed 1 April 2011
·The affidavit of Dr Y filed 1 April 2011
In addition to the father, only the paternal grandmother and Ms Z were required for cross-examination.
The ICL relied upon:
·The affidavit of paediatrician Dr M filed 24 March 2011
·The affidavit of Dr G filed 24 March 2011
·The affidavit of GP Dr C filed 8 March 2011
·The evidence of Ms W Principal of X School
·The evidence of Dr R paediatrician
·The Family Report dated 3 March 2010 by Mr A.
All were cross-examined.
After five days the case was adjourned part-heard, as it had taken longer than had been expected. At the start of the sixth day, well after lengthy cross-examination of each parent, counsel for the father sought to call the family therapist, Mr H. I did not allow it.
Mr H’s affidavit, filed 1 April 2011, was unchallenged. It was unfair to allow new evidence from him so late in the piece. The trial needed to be fair and finite. I was told that Mr H was to add an opinion on who should have sole parental responsibility. I was satisfied that he had ample opportunity to do that in his original affidavit. Since then he had not seen the mother, and counsel did not refer to any other recent event or circumstance that had advanced Mr H’s capacity to state an opinion. I was not satisfied that he could usefully add something at that point. Other evidence had already been “sprung” on the mother in that way. The balance of fairness dictated against Mr H being called to add evidence.
Similarly, counsel for the father sought to call family therapist Dr F at that stage. Again, Dr F’s report was already in evidence and he was not required for cross-examination. Counsel wanted him to add details as to when he had seen the parties. That was able to be resolved by other means.
RELEVANT LEGAL PRINCIPLES
Section 60B(1) of the Family Law Act 1975 sets out the objects of Part VII of the Act, to ensure 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.
Section 60B(2) sets out the principles underlying those objects. They 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).
In deciding a particular parenting order the best interests of the child is the paramount consideration (s 60CA). Section 60CC(2) and (3) set out the primary and additional considerations for the Court in determining what is in the child’s best interests. I will return to the detail below. Section 60CC(4) provides that the Court must consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent, and the Court must have regard in particular to events that have happened and circumstances that have existed since separation (see s 60CC(4A)).
There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA). The presumption relates to the allocation of parental responsibility, not the time the child spends with each parent. It may be rebutted if the Court is satisfied that equal shared parental responsibility would not be in the child’s best interests. In this case, the parents, each for different reasons, agree that the shared decision-making is not working in the child’s best interests.
If there is an order for equal shared parental responsibility, the Court is then obliged to consider whether the child spending equal time with each parent would be in the child’s best interests. Neither parent proposes precisely equal time in this case. They propose, to differing degrees, “substantial and significant time” with each of them, in accordance with s 65DAA (2)(c) of the Act. The configuration is in issue.
I will first consider the primary considerations under s 60CC (2).
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
It remains clear that it is essential for the child’s well-being that he retains the close meaningful relationship that he has with both of his parents.
Each parent’s application, if successful, would effectively reduce the other’s role in the child’s day-to-day care. Despite the cynicism each expressed when it came to the motives of the other, I do not find that either is knowingly trying to damage the on-going close relationship between the child and the other parent.
The father described the mother as “opportunistic” in starting these proceedings, and that she was effectively trying to cut him out of the child’s life. For reasons I shall give shortly, those assertions are without foundation. I must consider the reasonableness of the mother’s proposals and her concerns about safety issues in the father’s home, but the evidence does not lead me to conclude that she deliberately seeks to minimise the importance of the father in the child’s life. Enough significant aspects of her behaviour counter against that.
The mother is open in her praise of what the father has achieved with the child, and open in her acknowledgment of his importance to the child. On the father’s own case, she allows extra time for him with the child, and calls upon him to spend extra time with the child by way of assistance to her. She readily has the father in her home playing with the child. She tries to involve and engage him with the various major medical and educational decisions. She is fulsome in her praise for and gratitude towards the paternal grandmother and the grandmother’s close relationship with the child.
Until very late in the case, the father’s own proposals would have substantially reduced the mother’s time with the child. Although there are aspects of his behaviour from which I conclude that he at times side-lines the mother, or shows a lack of regard for her input, and I need to consider them in more detail later, for present purposes they do not lead me to conclude that overall he believes the child’s relationship with his mother is unimportant.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
There is no concern about abuse or family violence in this case. Although the mother is concerned about the level of supervision provided by the father for the child, the issues she raises can best be considered below in terms of each parent’s capacity to look after the child.
I must now consider the additional considerations.
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
In the circumstances of the child’s communication difficulties, the Family Report writer, appropriately, did not seek to interview him for the purposes of the most recent Family Report in March 2010.
There is no suggestion that the child is other than happy, secure and loved with each of his parents.
(b)the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
The child has an excellent relationship with and attachment to each of his parents. Despite some of the harsh criticisms this round of litigation has evoked between them, neither parents suggests the other has less than a loving relationship with their son.
The paternal grandmother continues to be a caring and supportive grandparent and a central person in the child’s life. In the absence of the mother having any family in Australia, the paternal grandmother’s role has been important. It is apparent that the mother has a strong sense of family, and is genuinely pleased by the child’s close relationship with his paternal grandmother, and his place within the broader Hodges family. She has no difficulty at all in acknowledging that. Indeed, she volunteers it.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
As I shall note in more detail shortly, each parent has some suspicions about the other’s motives and actions at times, each knowingly or unknowingly “pushes the other’s buttons”, and each can upset and frustrate the other by their behaviour. They are significantly more polarised now than in the past.
Nevertheless, as noted, they often do communicate and co-operate on a day-to-day level. They discuss the child’s needs, spend time together with him, vary care arrangements as needed, and attend some school and medical appointments together for him. That shows a fundamental openness on each parent’s part to the child’s continuing relationship with the other parent.
To suggest otherwise, as the father did through counsel in final submissions, is unreasonable. The mother’s late change in orders sought – for the child to be with his father only at week-ends – arose from her concerns about his care of the child. Whether or not her concerns are soundly based, to suggest that she was motivated by a desire to cut the father from the child’s life is simply not supported on the evidence.
(f)the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs:
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
As this is where the majority of the complex evidence lies, I include some sub-headings for ease of reading.
The Parents’ Strengths and Weaknesses
Each parent continues to show an outstanding capacity to provide for the child’s needs. The strengths – and weaknesses – that I identified in each of them at the end of the first hearing, continue to be played out between them. Unfortunately, the strengths they display in their devotion to the task of parenting the child come with an intensity that is also at the heart of their respective weaknesses.
Their shared strength is that they are both selflessly devoted to the child and his cause, so that this severely disabled little boy has the benefit of two parents determined to give him the best possible life and the best possible chance to fulfil his capacities.
Their shared weakness is that neither can readily see beyond their own points of view, and although flexible on a day-to-day basis with each other, the arrangements for the child, and discussions about his care, they are rigid on many topics, and have reached this point of polarisation on serious issues that require decision.
In a detailed and well-balanced Family Report, Mr A noted the “zealous, pedantic and single minded” approach that the parents bring to meeting the child’s needs, and their incapacity to live with anything less than what they individually consider to be the “very best” outcome for him. He very fairly described neither parent as blameless for the conflict between them.
The parents have different parenting styles. The father’s assessment of the main difference between them is that he emphasises what the child can do, while the mother emphasises what he cannot. That is not a full and fair assessment. The mother’s assessment is that she emphasises routine and safety for the child, while the father does not. That too is not a full and fair assessment.
I am satisfied that the parents continue to show the differences in parenting style that I observed when they were last in court. The mother is more accepting and respectful of expert opinion. The father questions and pushes boundaries, seeking alternative options and treatments. She is more committed to routine and organised activity with the child. He is more committed to free-play and more robust physical activity.
The conundrum for me is that the differences between the parents mostly combine to offer the best possible care for the child. That was the essence of my decision at the first hearing. It continues to be the case. It is to the child’s benefit that his mother works so co-operatively with medical and educational experts involved in his care. It can be to his benefit that his father questions and continues to investigate alternative ways to assist him. The emphasis on routine in his mother’s home is good for him. So is the free and robust play at his father’s home.
The Mother’s Withdrawal from Family Therapy
It was in recognition of the parents’ different parenting strengths that I determined last time that they should retain the equal shared parental responsibility in relation to decisions for the child. It was also the basis for my decision that he should continue to live in each parent’s household, rather than in the grandmother’s home, or in any other configuration that the mother had suggested in the course of that hearing. It was the hope that with intense family therapy, the parents would find better ways to communicate and resolve their conflicts in relation to the child’s care.
Unfortunately, the family therapy has ceased without a successful outcome.
The parties were to attend the B Centre. When that clinic was unable to accommodate them, they were referred to a GP and experienced family therapist, Dr F. Ultimately the mother withdrew from that therapy.
I made orders in March 2010 for further therapy, and the parties started seeing a social worker and family therapist, Mr H. Ultimately the mother withdrew from that therapy.
The father has continued consulting both therapists. The mother has continued consulting her own counsellor, Ms J from a disability organisation.
The father is very critical of the mother for withdrawing from the shared therapy. The essence of his criticism is that she was not prepared to give it a fair go and could not accept the professionals’ opinions when contrary to her own. He is critical that she simply chose to withdraw from the process, effectively blaming the therapists, and in the case of Dr F, lodging a formal complaint against him.
In his evidence, the Family Report writer emphasised that family therapy is a process requiring a long-term commitment. It is disappointing that the mother withdrew from the family therapy, and that it was not more successful. It is to the father’s credit that he was prepared to continue, although it is not clear why he has continued to see both therapists. In any event, they noted genuine efforts on his part to improve communication skills. Dr F referred to the father’s “steady progress”. Mr H described it as “slow but useful progress”. A question for me is whether there is obvious improvement in the way the father has in fact communicated or inter-acted with the mother.
The father wants me to find that the mother’s withdrawal from therapy is proof that it is the mother rather than him who withdraws from any professional who does not agree with her opinion. That is an important consideration when it comes to assessing each parent’s capacity to take into account professional opinions in relation to the child’s medical treatment and education.
First, in fairness to the mother, I note that she persisted with the therapy more than the father’s criticisms suggested, and for significantly longer than Mr A had understood when he wrote the Family Report. Secondly, I need to consider what was happening in parallel to both lots of therapy, as well as the mother’s mindset by the time Mr H’s attempt at therapy started.
The mother only withdrew from the therapy with Dr F after attending at least 15 or 16 sessions between August 2007 and May 2009, as well as a case conference in June 2008 and another in August 2009. She withdrew after at least four separate sessions with Mr H, a joint session, another mediation session, it seems like several more separate sessions, and a session with her own counsellor.
Dr F regarded his joint counselling with the parties as confidential, and has not disclosed what occurred. It is clear however that outside the therapy the father continued to engage in conduct which, from the mother’s perspective, created insurmountable difficulties.
He continued to take the child to see paediatrician Dr R, although Dr M was the child’s long-standing paediatrician. Although Dr R is an eminently qualified paediatrician, and one from whom Dr M had requested specific expert opinion on several occasions, the father effectively set up two separate health teams for the child. I shall return to that.
He continued to return the child late to the mother. He was late in taking the child to school, and on some occasions did not take him at all. And from her point of view, he continued to ignore her entreaties to keep small objects out of the child’s reach at home or in the car. Again, I shall return to all of that.
Above all, in early to mid-2009, the father withdrew his consent for the child to attend the Alfred Child and Adolescent Health Service (CAMHS) assessment for autism, an assessment that had been called for by his paediatrician, Dr M. The father disagreed with the assessors’ methodology, but rather than discussing it with Alfred CAMHS, as suggested by the mother, he sought a referral to a separate assessment at Monash Medical Centre. Dr R refused to give him that referral. In the meantime, several months passed before the CAMHS assessment could be completed. A proposed treatment plan for the child was thus delayed.
By the time Mr H met the parties, in about April 2010, this litigation was well underway. Although the father said it was “opportunistic” of the mother to start the litigation, I am satisfied that she was at the end of her tether when it came to the parties’ incapacity to make decisions together for the child. The delayed CAMHS assessment presented the ultimate frustration to her. From her perspective, the child was not able to be assessed, and the proper regime of care could not be started, just because of the father’s withdrawal of consent. It was only after that she commenced the litigation.
That was the backdrop to my order in April 2010 for therapy with Mr H. He found the mother focussed on the litigation and her criticisms of the father, rather than the therapeutic goals he understandably wanted the parties to pursue. It is apparent from his report that the mother refused to participate in therapy with him from November 2010. I note that between the order in April 2010 and then, a number of significant things had occurred outside the counselling setting.
The mother had received a letter from paediatrician Dr R, dated 1 July 2010, from which she discovered that the father had unilaterally decided to send the child to a state Primary School for mainstream schooling. She was shocked. She was also upset to hear of something so important in that indirect manner, and the upset was compounded as that school was a long way from her home. She clearly perceived that the father was thus minimising her role in the child’s life, and indeed at the start of this case, the basis of his proposal that her time with the child should be reduced was so that he could take the child to that mainstream school.
Importantly, fuelling the mother’s anxiety that the father did not properly supervise the child, K not only received a broken arm in April 2010, but another in July 2010, both in his father’s care.
Of the two parties, the father has shown himself as the more open to continuing family therapy. The mother has not only been the one who has withdrawn, but she has done so with a formal complaint about Dr F, and a number of letters of complaint to Mr H. I am satisfied however that her withdrawal from the therapy with Dr F was after a substantial period, and that although I ordered the further attempt at therapy with Mr H, in retrospect, and with all the information now to hand, I conclude that it was probably doomed in light of what was otherwise occurring between the parties. By then, understandably, her focus was on the need for specific solutions to decision impasses, rather than more general communication improvements.
Further, although the father has shown a willingness to continue in therapy, that apparent willingness, and any progress that the therapists perceive he has made in his communication skills, have not necessarily translated into his dealings with the mother. It is only fair to assess her withdrawal from therapy in light of the very real frustrations she faced in dealing with him. I shall deal with that further, below.
The mother’s relentless criticisms of the father
The father experiences the mother as rigid, bossy, and controlling. She can be. She has a strong and clear view as to how the child should be cared for and in many respects the father does not comply. Her motivation is good. All the experts agree that routine and consistency are essential for any child, but most particularly for a child with this child’s disabilities. She is steadfast about meeting those needs, but unyielding to the fact that the father might still meet them, although in a manner different to her. She is not open to the prospect that the child may cope adequately, if not well, with the routine he has in each home, given that he has for a considerable period spent his life in each household.
The father used the words “relentless” and “dogged” in relation to the mother’s pursuit of her views and her ways, to the exclusion of others. I shall return to the irony of him failing to see how those words apply equally to his own approach, but for present purposes note that it is in many respects a fair description when it comes to the mother. It was not fair in so far as he suggested that she feels that her views are “superior to all health and legal professionals who disagree with her”, or that she then “ceases her communication with that professional”, or that she simply refuses to take the advice of experts if she disagrees with them. That seems to partly explain her withdrawal from the family therapists, but, as I shall explore below, when it comes to the child’s care, of the two parties, that description much more aptly fits the father.
The mother does however make some unreasonable criticisms of the father. A stark example was her suggestion that because he lived in rental premises, his accommodation is unstable. Not only has he lived in his present accommodation since 2005, without any suggestion that he is moving, but late in the hearing it became clear that she was the one who had just received a Notice to Vacate from her landlord. That made a mockery of her expressed concerns about the stability of the father’s accommodation.
Although there was no suggestion the mother had kept her pending move secret from the father or his mother, it was unfortunate that her lawyer had not brought it to the attention of the father’s lawyer, the ICL, or the court, until so late in the piece. Mind you, it seems the father had not told his own lawyer or the ICL either, although he chose to rely on it by the end of the case to suggest the mother is “unrealistic”, and that she is creating another change in the child’s stability. That is not fair. It was not her fault or of her making that the landlord now wants to use the property. And the father could not have been genuinely worried that it in any way disqualified the mother, given that he did not mention it until she did.
The evidence, also late in the case, that for some months the mother had overlooked her obligations to file forms with Centrelink, so that the benefits upon which she and the child are dependent had ceased, also made a mockery of her expressed concerns on the topic of stability.
I cannot conclude however that the mother is incompetent when it comes to financial matters. She has supported herself and substantially supported the child over the years, despite modest means, and with honest attempts on her part to gain additional income from teaching. This fundamental slip-up seems to reflect the rigours of this litigation, and fortunately the payments now seem to be back on track.
A submission for the father, that the mother does not “prioritise or manage her money”, as a basis for saying she should not have sole parental responsibility, was unfair. The Centrelink issue is illustrative of the mother “dropping the ball” while preparing for this trial. It is not illustrative of her being unable to arrange, attend and manage meetings and appointments for the child, all of which she has done perfectly well for years. Seizing on it as a longer term disqualification of the mother is a discredit to the father.
I am satisfied that all litigation must take its toll on the parties. I accept that it is even harder when as here, until recently, the mother was unrepresented. She had the full responsibility of putting together the papers and gathering the evidence for trial. I cannot overlook though that the added degree of difficulty for the mother arose from her own personality and the “obsessional” way in which she set about gathering and preparing material. The level of detail is acute. The fact that she did overlook something as important as her Centrelink payments supports expert observations about her. I shall return to that in a moment.
It is essential to deal with the mother’s continuing complaints about the father’s house and his capacity to provide safe and hygienic day-to-day care for the child.
I made it clear from the start of the case that my task is not to be the arbiter of housekeeping standards. Any aspects though of the household set-up or cleaning that impact on the child’s best interests are relevant.
The mother has consistently expressed her profound concern about the untidy, cluttered and dirty state of the father’s home and his car, as well as his lack of supervision for the child, particularly when it comes to leaving within his reach dangerous items, or small objects that he can put in his mouth. She expressed those same concerns before and during the last trial. She has made a number of complaints to DHS.
In fairness to the mother, although DHS ultimately did not take any substantial action, they expressed concerns to the father at various times. In fairness to her as well, the doctors caring for the child have also supported her in her concerns. In fairness to the father, before this hearing, many of the concerns expressed by DHS and by doctors were based only on the account the mother had given them, and there were exaggerations and distortions in her accounts.
For the purposes of this hearing though, with the father’s consent and in his presence, the mother took a series of photographs of his home in January this year. They show an extremely cluttered and untidy household, both inside and out. On the basis of the photographs, the doctors in this case, and the X School Principal Ms W, expressed concerns about its suitability for a child with the child’s special needs, that is, a child who still mouths objects within reach, and a child with an unsteady gait. I shared that concern, given the chaos depicted. Ultimately, two parts of the evidence helped to mitigate my concern.
The first was the evidence of paediatrician Dr R. She expressed some concern about the state of the father’s household, and a preference that it be tidied and cleaned to assist the child’s cognitive development. She emphasised however that although the child’s gait is a “bit unbalanced”, he could physically cope, and she pointed out that he has not had on-going problems with choking from putting small objects in his mouth, despite all the concerns expressed by the mother about that.
The second part of the evidence related to the photographs produced of the mother’s own home. They came into evidence in a most unsatisfactory manner. In the course of this hearing, unbeknownst to the mother, and while she was at court, the paternal grandmother arranged – via a carer who had access to the mother’s home – to go there and take photographs. That is probably the saddest commentary on the effect of this litigation, and the sort of shabby behaviour that can only undermine the trust between the key carers of the child. The mother had every reason to be very hurt. These photographs were only produced very late in the piece, and well after she had finished her evidence. Although the father had always known of the photographs of his house, and had ample opportunity to respond, the mother was ambushed.
Unfortunately, counsel for the father also tried to tender various other documents well after the mother’s evidence, affording her no fair opportunity to comment. In some instances I refused. The probative value of these photographs however appeared to be sufficient to admit them, and I allowed the mother to be recalled to respond to and be cross-examined about them.
The photographs show clutter and chaos that, although a little less than at the father’s home, is still significant. Nevertheless, I do not accept the father’s assertion that he had always been concerned about the state of the mother’s home. With every opportunity in preparing and swearing affidavits and giving his evidence in court, it was only very late in the piece that he even mentioned any concern. He was the one who used the word “opportunistic” in relation to the mother. I had the impression that he himself was being opportunistic on this topic. I reach that conclusion too in light of the evidence of the paternal grandmother, who made it clear that the state of the mother’s home had not been an on-going concern.
The paternal grandmother said that the disarray at the mother’s home was only a recent phenomenon, and one that she attributed to the mother being so caught up with this litigation that she was not looking after the home in her usual way. At the same time, the paternal grandmother was open about her long-term concerns that the father’s home should be de-cluttered and tidied. She spoke of her repeated offers to help him, for her and other family members to arrange a skip in order to clean out the home and garden, and to have the home cleaned or to clean it on a fortnightly basis. It was clear enough that she was frustrated that her offers fell on deaf ears due to her son’s stubborn attitude.
The question is where that leaves me on this issue of the state of the households. Mr A’s evidence was that although the homes could be tidied and cleaned, it was the upkeep that would then be important. The ICL proposed an organisation, “Child First”, to come in and assist the parents to fix up their homes. Neither parent resisted that. It should occur. I shall consider later whether any other orders are appropriate.
I note that the mother will shortly move home. The unit she has been living in is very small. That certainly accounts for some of the clutter. Hopefully she will have more space, and with this litigation over, more time, so that she will revert to her more orderly manner of keeping a home. The remnants of the order that she maintained is still evident in many parts of her little flat.
I am not confident that the father will maintain an orderly home. He has ignored observations on this topic in my last judgment. He has ignored his mother and her entreaties. He has certainly ignored the mother’s concerns. I can only say that the child appears to negotiate his household and is well used to its “order in chaos and chaos in order”, as the father described it.
Before leaving the topic, the issue about the state of the father’s household dove-tails with the issue of whether or not the mother’s anxiety about his care of the child is reasonable. Mr A said of the mother (at para 73):
…By the same token [the mother’s] anxiety and significant lack of confidence in [the father’s] parenting capacity manifests in a breathtaking amount of energy being used to engage, and inundate with paperwork anyone who will listen to her concerns, this latter is a common theme seemingly experienced by many of the professionals involved with [the child], and in some respects reflects the ‘driven’ nature apparent in [the mother].
Acknowledging that neither parent was blameless, Mr A went on to say in relation to the mother (at para 74) that:
…It is apparent that [the mother’s] propensity to offer professionals a censored or truncated version of events, does little to soften the conflict. This, combined with her single-minded and zealous approach to meeting [the child’s] needs adds to the complex amalgam of on-going problematic dynamics not only between the parents but which increases the complexities experienced by professionals in the extended therapeutic network. An example of [the mother’s] attempts to influence professionals is found in her provision of an ‘extract’ of this Family Consultants’ [sic] previous report, made available by [the mother] to Family Life Staff. The extract provided to staff identified [the father’s] deficits being discussed therein and it was apparent that someone had ‘highlighted’ those aspects which reflect [the mother’s] views about [the father’s] parenting.
That is a very fair summary of an observation by most of the experts involved in the case, and of the court’s experience. It is a fair basis of criticism of the mother by the father. The combination of finely detailed complaints about his care, repeated letters to him, his mother, the therapists, the doctors, the court, Mr A, and DHS about it, and disparaging and at times exaggerated comments about the father to professionals, could only exasperate him. However, in turn, the mother’s behaviour needs to be assessed in light of the father’s behaviour.
The Father’s Stubborn Disregard for Concerns of the Mother
The father has shown a stubborn disregard for many reasonable concerns repeatedly expressed by the mother, including his lack of punctuality in returning the child to her, his lack of punctuality and absenteeism at X School, the state of his home and his car, and his failure to comply with an agreed toilet-training regime for the child. He has given her little comfort, and made little effort to change.
The father’s lack of punctuality in returning the child to his mother, and his negativity towards X school, have been on-going issues between the parents. Both were played out before me in the first hearing. I was critical of the father for his lack of punctuality, and I was clearly supportive of X School’s on-going role with the child on four days each week. Despite that, the father has continued to return the child late to his mother, and in his care, there has been significant lateness to and some absenteeism from X School, at least until the start of this school year. Predictably, it has been a cause of consternation to the mother.
In her affidavit, the mother swore that the child was “never…on time” to school in his father’s care – usually half-an-hour late, but it could be up to two hours late. Later in the affidavit she described him as “consistently late”. She described the child as absent from school “more than half” the time when he had stayed with his father overnight on the previous Wednesday, and that he was never on time on the following morning. She was concerned that the child misses out on important opportunities to socialise in “meeting and greeting” fellow students at the start of the day, but also on important language development sessions. Despite requests to present the child on time, for a long time the father disregarded such requests.
Ms W, the Principal of X School, agreed that the father had improved this year so that the child was now in “regular attendance”. Although the school day begins at 9.00am, the father however still brings the child to school after that, but no longer, for example, as late as 11.00am.
Ms W said that between 9.00am and 9.30am is the time when the children greet each other and settle into their classroom. She regards it as an important part of the school day, with the aim of socialising and developing independent skills. An arrival after 9.15am is considered “late” for the purpose of school records. In cross-examination by counsel for the father, Ms W said that the child was not “always” late with the father, but he was late more in the father’s than in the mother’s care.
The school attendance records show 57 full day absences in 2010. Ms W agreed that about 26 days could be accounted for by the home-schooling days. It was put to her that of the balance, as many absences were in the mother’s care as in the father’s. She did not know. She agreed that not all were with the father.
Accordingly to Ms W’s evidence, the records show that in 2010 there were 13 late days. Eleven of those days were with the father. It is important to note that the father was only responsible for taking the child to school on one day per week. So, he was late on 11 of those days.
In his affidavit, the father agreed that the child has been absent from school while in his care. He referred to minor health issues, including recurring diarrhoea. He swore that at times the child had not had enough sleep the night before school.
The father swore too that the mother took the child to X School “regardless of his fragile state of health and thereby exacerbating his condition”. There was no evidence of that. Interestingly, his counsel’s submission in closing, that the mother is too anxious about the child’s health and rushes him too much to doctors, seemed to overlook the father’s evidence suggesting in some circumstances the mother was not anxious enough.
I note that throughout the history of complaints by the mother about the child’s absenteeism or lateness for school in the father’s care, the father has not accused her of undue lateness or absenteeism (as he appeared to try to do, via his counsel’s cross-examination of Ms W), he has not given her any explanation, and has not offered any apology, expressed remorse, or at any time reassured her that he would try to improve. In final submissions, his counsel pointed out that, unlike the father, the mother has the advantage of council carers, who not only drive the child to school in the morning, but also help her at home before school. But the father never complained that he himself needed council help, or explained that its absence was the cause of his lateness.
In 2011, the father has shown that, if he chooses, he can better manage the issue. The mother’s suspicion, that he improved only once this hearing was approaching, is a reasonable one. His lack of engagement with the issue until then, despite the mother’s requests, was always likely to cause her the significant frustration that has resulted. Her frustration arose from the reasonable concern that the child’s education was potentially disadvantaged, a concern supported by the school and conveyed to her.
I accept the mother’s evidence that the father continues to deliver the child late to her. It was not disputed. That is poor behaviour on his part. In combination with the school lateness, it shows a high-handed approach to the school and its importance to the child’s education, and a disrespectful and high-handed approach to the mother that I observed in the last hearing. It would be known to the father as the likely cause of great consternation to the mother.
When it comes to the state of his home and his car, the father has shown a similar level of disregard and stubbornness. He has known for many years that these things concern the mother. He also knows that various medical experts have commented on the need for order and cleanliness, of the child’s unsteady gait, of his recurring diarrhoea, and of the concerns that as the child continues to “mouth” many objects, small objects should be kept out of reach. The mother’s concerns have been supported by the paediatrician Dr M, the GPs Dr C and Dr G, and the school Principal Ms W.
Her concerns were understandably compounded by the child suffering two broken arms last year, in close succession, while in the care of the father. Although neither break occurred in the father’s home, one was when the father had not strapped the child into a swing in the playground, the other when, in his father’s presence, he fell on concrete outside the paternal grandmother’s home. It is not surprising that those unfortunate events added to her anxiety that the child is not properly supervised in the care of his father.
The father is critical of the mother for photographing the child, distressed in hospital, after the second arm break. He is critical of her for sending the photographs and letters about the broken arms to doctors, the paternal grandmother, and DHS. He is critical of her, saying through counsel in final submissions, that she was more interested in gathering evidence than in the child’s welfare.
The father failed to show any empathy that two arm breaks within quick succession, when in his care, were bound to concern the mother. Rather than criticising her, he would have done well to try to comfort or reassure her. But rather than making any effort to ameliorate her concerns, the father appears to have ignored them. As he has been unresponsive, she has become more strident, and in turn he has become even more resistant. That is understandable in terms of human reactions, but the criticism of the mother for not letting up in her criticisms of the father must be assessed in light of his failing to respond respectfully to valid concerns on her part. And although he is the one who has continued to see the family therapists, there must be some doubt as to what he has learned as to how he can contribute to better communications with the mother.
I turn then to the question of the child’s toilet-training. It has been a continuing source of conflict between the parents. Continence training is important for the child at nine, from every point of view, not the least being his social inclusion and his schooling, including his potential for mainstream schooling.
The parents and the paternal grandmother have attended a toilet-training program at X School. In Ms W’s opinion, the child’s training has been slowed by the inconsistent practices between the parents’ households. The doctors also emphasised the need for consistency, to achieve successful toilet training.
The recommended program was for the child to be consistently taken to the toilet, so as to associate the relevant bodily functions with the toilet, and in turn to practise and learn to use it. The mother has followed that program. The father has not. She has been upset and frustrated that, for example, the father allows the child to urinate in the garden at his home. She is considerably irritated that it is contrary to what they have been told should occur and that the child’s toilet-training has suffered as a result.
The father’s view is that it is better for the child to become aware of the bodily function by, for example, urinating in the garden. He believes the child is thereby making progress, a view supported by the paternal grandmother.
Whether or not the father’s approach is a reasonable one is beside the point. The point is that the parents together embarked upon a program as advised by the experts, but the father has nevertheless followed his own and a different course. It creates particular difficulties for the child with his impairments in adaptive behaviour. Both parents know and frequently referred to the child’s need for consistency.
The father shows no insight into the frustration the mother feels arising from his different approach to toilet-training. Moreover, through his counsel in final submissions, he landed a “cheap shot” at the mother, claiming that the child probably does not use the toilet at her place “because it is filthy”. The clandestine photograph of her toilet, taken in the middle of the trial, did indeed show a toilet that looked very dirty. When the father is the one who has not been following the program recommended for the child’s toilet-training, it is unfair to suddenly suggest that the toilet-training is failing because of the mother.
The mother is critical of the father’s adherence to a proper diet for the child. This is an example where the difference between the parents is starkly played out. The parents together have sought the advice of a dietician, particularly in light of the child’s autism and recurring bouts of diarrhoea. The mother follows the dietician’s advice to the letter. It seems that the father does not.
His evidence was that the dietician had made certain recommendations as to what might be useful in a dietary sense, but that it was not proscriptive or prescriptive advice. Although I am perplexed by what appears to be a huge number of fast-food wrappers retrieved from the father’s car, and he said very little about that, I cannot make a definitive adverse finding as to the child’s diet in his father’s household.
The Father’s Unilateral Decision-making for the Child
Although there is no doubt that the mother is guilty of bombarding the father with too much material, some of it plainly unhelpful, of the two of them, it is the father who is more likely to leave the other parent out of decisions and to act unilaterally in relation to the child. I find that, based on his behaviour to date. He has left the mother out of some decisions or excluded her in a way that has only polarised them further, and unnecessarily.
There has been a clear example when it comes to the child’s communication devices. The father was the main instigator of the child’s use of them. That was discussed in my last Reasons for Judgment, and it remains clear that, thanks to his research and his pursuit of the appropriate communication devices, his insistence on their use, his programming of them, and the work he has put in with the child, K has had the opportunity to communicate in a way that otherwise may not have been possible.
The mother is complimentary of the father for that. There is no doubt though that she was not supportive of his zeal with the machines in the early days. Guided by his teachers, she had and still has some, not unreasonable, concern that it is important to continue to encourage the child with oral speech. That view continues to be supported by his school, but it takes nothing away from what has been achieved by the father with the devices, an accomplishment commented upon favourably by Dr R and others.
I am satisfied that the father has nursed a grudge. Irritated by the mother’s lack of enthusiasm in the early days, he has deliberately and stubbornly excluded her from participating in certain activities or decisions surrounding the communication devices.
I accept the mother’s grievance as genuine that the father has not responded to her requests to observe the Saturday morning group…, where the child and a peer group communicate with each other by use of the devices. He says that it is “his” time with the child. That is unreasonable. I was not left with the impression that the mother was seeking to attend every week, but just to observe a session to see what occurred. Moreover, a consideration of “his” time or “her” time has not intruded between them in the past, when it has come to observations of the child’s activities.
The father conceded that in November 2010, without the mother’s consent, he permitted a picture to be published and an article to be printed about the child in a communication magazine. He conceded that he should have told her but, effectively, “he knew what her views would be”. He chose to proceed without discussing it with her.
The father recently signed an agreement with the manufacturer of the … communication machine that the child will now be using. The agreement provides for the provision of the machine at a reduced price, in return for the child and his father performing some ambassadorial duties and demonstrations. The machine is expensive. It may be a good deal. But he never discussed with her the agreement, the options, or what this contracted role might entail for the child, including whether the company’s demands could impact on the child’s time with her, or his time at school.
I accept from the mother too that, despite numerous requests, the father has not provided her with the details of his home-schooling routine for the child. Although he had said it was contained in communication books, he produced nothing. In evidence, it became clear that he could not have provided the details she sought because his home-schooling occurs on an unstructured basis. The X School staff had also tried to trade information with him, particularly so he could follow a similar program to school, but he was not responsive.
The most graphic example of the father not including the mother in decisions is that, as noted, she first heard of his proposal for the child to attend mainstream schooling at a state Primary School in a letter from the paediatrician Dr R on 1 July 2010. Dr R wrote to the father (copied to the mother):
I fully support your decision for [the child] to attend a local school. I understand that [the Primary School] has accepted him.
The mother described it as “like a bomb” and “shocking”. Although the father said that it had been mentioned previously, he conceded that the specifics would have been “a surprise”. And it was during a period when they were still in family therapy. There was ample opportunity to raise the topic in that forum, or between themselves. It was inevitable that such a “surprise” would cause grief, particularly when the chosen school was a long way from the mother’s home and she does not drive. It was inappropriate and insensitive for the father to set about things so that the mother was effectively presented with a “fait accompli” via a third party.
The Differences between the Parents on Medical Issues
The father has consistently pursued new ideas and treatments for the child. I am not critical of him for that. He is open to criticism however for seeking expertise that cuts across or seeks to go around the existing sound and supportive medical experts who have treated the child long-term, when it undermines or confuses his existing treatment, and/or sidelines the mother.
The mother’s concerns are valid in so far as they relate, for example, to his use of Dr R for separate paediatric services. Although Dr R’s skills are not in dispute, and she is an expert paediatrician to whom the child’s treating paediatrician Dr M referred the child occasionally for particular specialist advice, neither the child’s treating team including Dr M, nor Dr R herself, felt it necessary for Dr R to be seeing the child full-time, let alone to be seeing the father alone with the child.
In final submissions, counsel for the father said that the father did not object to the doctors the mother uses being the child’s “primary team”. Counsel described Dr R as “[the child’s] secondary specialist paediatrician”.
That submission may have been valid if things had been left as they were, with Dr M very occasionally referring the child to Dr R on a specific issue. Since 2008 however, without the mother, the father has chosen to take the child to see Dr R. He said it was “necessary”. He described her as the “super expert”, and that the “local team” (mainly GP Dr G and paediatrician Dr M) were “harassed and controlled” by the mother.
The evidence did not persuade me that any of the doctors are “controlled” by the mother, as claimed by the father. And, the evidence did not support counsel’s submission that the father genuinely accepts that the doctors who have tended the child for many years are his “primary team”.
Dr R was forthright in her evidence that she sees the child on an on-going basis only because the father arranges it. It is not because she needs to be involved in his care in that way. She has done her best to send all correspondence to the other doctors and to the mother, to ensure they know that she has seen him. She said that if the father seeks to consult her, she does not see a capacity to refuse, but she said it was ideal for there to be the one doctor and that her involvement “reflects the conflict” rather than “optimal medical care”. She expressed an unequivocal preference for one paediatrician to look after the child.
It was apparent that Dr R was cautious to ensure that her evidence did not impede any on-going relationship with the father. Nevertheless, her message – that her involvement was not required for the child’s medical care, and that it would be better for him to have the one paediatrician – was very clear. Unfortunately, when the father was questioned about that, it was apparent that he had not properly “heard” or assimilated her message. He said he heard the doctors say it was “workable”. He did not hear them say there should be one team.
Further, it is a message Dr R had previously tried to convey to the father. She described how, in April 2009, the father asked her to refer the child to another paediatrician Dr N. The father had heard that Dr N was doing research and was an expert in child development and behaviour. In her letter to the GP Dr G, Dr R wrote that she had explained to the father “that he needs to be very clear that this child has one paediatrician that he communicates with.”
Although this is an instance where the father ultimately told the mother about the appointment with Dr N, and she attended, the upshot was that Dr N himself made it clear that he should not be involved. Dr N wrote to Dr G, noting that the child was already “receiving comprehensive care” from that service. Dr N said he tried to discuss with the parents what he could add to the child’s care. He said:
I stressed to his parents (who were not able to be in the room simultaneously) that the main priority for [the child] is that his parents agree on treatment goals and then focus on early intervention, rather than exploring multiple medical opinions and alternative therapies…
Dr N specifically noted that the parents were unable to communicate with each other, and could not agree on their priorities for the child.
The parents’ conflicting approaches to medical issues was most graphically played out in early 2009, when Dr M sought the autism assessment from Alfred CAMHS. Although Dr R said that it was obvious that the child was autistic, she agreed that the proposed assessment, involving a range of experts, is the method by which children are generally assessed, and their treatment and care then decided. Unfortunately for the child, even though his treating specialist wanted the assessment, it stalled for some months, only because of an impasse between his parents.
The assessment could not proceed because the father withdrew his consent. He was opposed to the expert assessors’ methodology, because they did not propose using the child’s communication device. He felt the child’s capacity could not be properly assessed if based only on his rudimentary oral skills. The mother was not dismissive of his point of view. Although she trusted the experts’ methodology, she nevertheless urged the father to discuss his concerns with the CAMHS team directly. Instead, on 24 April 2009, he asked Dr R for a referral for an autism assessment at Monash Medical Centre. She refused. Ultimately the father permitted the CAMHS assessment to resume.
At paragraph 31 of the Family Report, Mr A noted that the father had sought the referral to Monash. When challenged by the Family Report writer as to the merit of pursuing yet another assessment, given the on-going conflict between the parents, Mr A said the father conceded that “with the benefit of hindsight” his decision was “not only unwise” but that it “lacked insight”. He told the Family Report writer that having sought the alternative assessment, the resulting dynamics between him and the mother, resulting in this current court application, “surprised” him, and in hindsight he recognised that he had made “a mistake”.
Mr A observed (at para 31):
…[the father’s] claim to being naïve about the effect such action might create and the suggestion that he had made a ‘mistake’, given the circumstances and long-standing conflict apparent between the parents, would seem to either demonstrate a considerable lack of insight and little capacity to reflect on the implications such an action would create, or, that [the father] continues to behave in the manner described in the Honourable Justice Dessau’s judgment dated 5 June 2007.
When Mr A referred to behaviour in the “manner described” in my previous judgment, he is probably referring to paragraph 94, where I referred to the father sometimes being “high-handed in his approach to the mother, refusing to respond to her concerns, for example not showing basic politeness in even returning [the child] to her at agreed times.”
Following on from Mr A’s observation, I note that in the course of this hearing the father accused the mother of litigating “at the drop of a hat”. In fact, she commenced this litigation largely as a response to her frustration over that impasse with the Alfred CAMHS assessment, which had impacted directly on the child’s well-being. Not only was there no basis to say that she litigated “at the drop of a hat”, but it suggested that the father’s acknowledgment to Mr A that he had made a mistake was either not genuine, or was short-lived.
Of the two of them, when it came to the CAMHS assessment, it was the father who acted poorly and in a manner contrary to the child’s best interests. The mother simply followed the treating paediatrician’s referral to Alfred CAMHS. She followed the assessors’ (including a specialist psychiatrist Dr …’s) requests as to how the assessment was to be conducted. She was not dismissive of the father’s concerns about the use of a communication device and encouraged him to speak with the doctors. He was the one who withdrew his consent when he did not get what he wanted, and he was the one who sought a referral from a different paediatrician to a different autism assessment service.
When ultimately the father agreed to the CAMHS assessment, and it was completed, one of the upshots was a referral by Dr G to a Ms E, a psychologist specialising in the behavioural treatment of autism. Ms E was only available to consult on a Thursday. As it was the father’s home-schooling day at the time, he would not consent.
The father said he suggested an alternative therapist, a Ms I. He described her as the mother of autistic children who was engaged in behavioural lectures and assistance to others. She may well have had experience that she could convey, but she had no professional qualifications. The father’s counsel was critical of the mother for not pursuing his recommendation to consult with her. I am not. The parents were not referred to her as a qualified specialist clinician by the medical experts responsible for the child’s care.
I do note from Dr G’s notes of 22 June 2010 (Exhibit ICL 1) that the father said he would permit the child to see a therapist on Dr G’s suggested list, a Ms V. However, the mother maintained her position that the child should see Ms E, the only autism/Asperger spectrum disorder specialist on the list of more generalist psychologists. Her position on that was not unreasonable.
The upshot is that the behavioural therapy never occurred. Interestingly, the father was also critical of the mother for that. There was no fair basis to his criticism. It was his inflexibility that led to another impasse, and inaction. It is not really surprising that although his home-schooling day changed this year, with this impending hearing, the behavioural therapy was not put in place. But it is a pity it could not have commenced when suggested last year.
The father’s refusal to agree to the child seeing Ms E, the therapist recommended by his treating doctor, only because she worked on the day of his home-schooling, was unreasonable, the more so in light of his own evidence that he follows no curriculum with the child, and that various normal daily activities, such as shopping, are part of the child’s education with him. Taking him to see Ms E, and the events surrounding the appointment, could have been used in just the same way, had the father been willing to do so.
At paragraph 73 of the Family Report, Mr A noted:
[The father] concedes that he is ‘passionate [in his approach to seek] positive outcomes for [the child]’, his values in obsessively seeking alternative explanations/options and exploring possibilities for ‘treatment’ in this respect, are not inconsistent in this respect with his past diagnosis by Dr [J], psychiatrist, of having a personality disorder. Not surprisingly [the father] rejects the view that there are too many professionals involved in [the child’s] life although is cognisant that his views depart from [the mother’s] views in this respect.
There were other instances too of the mother co-operating. For example, she ordered a full set of mattress, doona and pillowcase protectors from the Incontinence Clinic for the father’s home. As well, when the father found a particular tricycle that he thought would be good for the child, the mother set about arranging the funding for that.
On the other hand, the father showed little interest in the mother’s proposal for the child to attend a camp for disabled children in August 2010, when it was not only suggested by the child’s GP Dr G, but when Dr G was also going to be in full attendance, as the medical officer. The mother was upset that the father dismissed it out of hand. He said that she had never made a serious suggestion. I accept her account. It is probable that she would have been very enthusiastic and confident, knowing Dr G would be there to keep an eye on the child.
Similarly, although an excursion from X School to Scienceworks for the “Mr Bones” exhibition was supported by the mother, the father did not support it. Again he said that the mother never made a serious proposal about it. I accept the mother’s evidence that she particularly wanted the child to have the enjoyment and experience of that special excursion, with his school peers, but that the father would not permit it because it was on his home-schooling day.
The Father’s Allegations of the Mother Exaggerating, Distorting and Manipulating the Facts
The father has accused the mother of exaggerating, or distorting and manipulating facts to suit her own beliefs. His criticism is valid in some respects. She has told various professionals that the father has a mental health issue. Her assertions were not totally without foundation, Dr J having expressed a “provisional diagnosis” that the father had a “personality disorder”. Even so, she certainly exceeded what could or should have been said. And she has been far more disparaging of him to others than he has been of her. Mr A agreed that was the case. It is very much to her discredit, and has no doubt contributed to the father’s intransigence towards her, and his side-stepping of her in various decisions.
It was obvious throughout the mother’s evidence that she is capable of hyperbole, for example saying that the father “never” took the child to school on time, when in fact, he was frequently but not always late. Her concerns about his home too appear to be quite distorted when the current state of her home is considered, even though the chaos at her home appears to be more short-lived than at his home. And, her claim as to how badly the child’s performance slipped back at X School last year was, on the Principal’s evidence, without foundation.
The father has shown that he too can exaggerate and distort and manipulate facts. One clear illustration was his description of himself in his affidavit (at para 3) as “an experienced and trained disability carer and teacher”. I take nothing away from his experience gained in caring for the child, but he does not have formal teaching qualifications. Another serious distortion occurred when he swore in his affidavit (at paragraph 37) that DHS had been to his home “on a number of occasions” but had taken no action. In evidence, he had to admit that it was simply not true. DHS had never been to his home. He had never permitted it.
Similarly, the father said in evidence that his mother had not been worried about the state of his house. Her evidence was to the contrary. She had raised the issue on different occasions, trying to persuade him to clean it and tidy it up, and to allow her and the family to help.
Although the father claimed an on-going concern about the state of the mother’s home, it did not appear in his affidavit, nor in the evidence until late in the piece. It did not ring true. And his mother’s evidence was that the disarray at her home was in any event only recent, and not a long-term concern.
As already noted, the father’s assertion of the mother “rushing to court at the drop of a hat” is an exaggeration and an unreasonable assessment of what occurred. She brought the matter back to court at a time when he had withdrawn his consent to the CAMHS assessment that was to be conducted based on the child’s doctor’s referral. The issue had not been resolved in counselling, nor in a meeting with Mr A, who saw the parties pursuant to the s 65L order. The father was critical of the mother for already having court documents with her on the day of that meeting, saying that she was not sincere about resolving the issue. Mr A did not criticise her for that. He noted that it was reasonable to be prepared to commence proceedings if the matter could not be resolved.
The father accuses the mother of not genuinely respecting his role in the child’s life, as being evidenced by her preparedness to drastically reduce his time with him. However, until late in the case, the father himself was guilty of seeking orders that would drastically reduce the child’s time with his mother.
At the start of this case, the mother’s proposal would have seen the father’s time with the child reduced by some eight-or-so hours. The father’s proposal would have seen the mother’s time with the child reduced by some 40 hours, or from four nights per week down to two. Although their positions changed by the end of the case, that was because of how the evidence evolved, rather than either one being more blameworthy or laudable than the other. The important point is that the father’s original proposal was not for much longer with the mother than she now proposes for him. He is very critical of her for the proposed reduction, but did not seem to understand that equal criticism has been due towards him.
He accused her too of being rigid, and choosing to interpret evidence to suit her own beliefs, above the child’s best interests. I have already cited a number of examples that would indicate that about him.
The father asserted through counsel that the mother is unrealistic. She is in some ways. That was apparent about her expressed concern that the father’s accommodation may be unstable when she is the one who must vacate, together with her emphasis on the lack of order in his home when hers is currently not much better. But the father too is unrealistic. He based his case, for example, on the need for mainstream schooling, without having made the necessary enquiries.
Neither party sees the irony in accusing the other of precisely the same wrongs.
The paternal Grandmother Mrs Hodges
It is important to make some observations about the paternal grandmother, given her integral role in the family. She continues to be a helpful resource and backstop to the parents, and an excellent grandmother to the child.
She and the mother continue to maintain a workable relationship. It has had its difficulties. The mother has been hurt at times when she has felt the paternal grandmother has not supported her. In particular, she was obviously aggrieved by aspects of the grandmother’s evidence at the last hearing. In turn, the mother has obviously said some very hurtful things to the paternal grandmother. Without doubt, damage has been done in both directions. To their mutual credit, despite that, they have maintained a relationship for the child’s sake.
The extent of the paternal grandmother’s capacity to put her own hurt to one side for the sake of her grandson was particularly apparent when she agreed in evidence that if the mother is without accommodation, she and the child could stay temporarily with her. She has also started to help the mother find a new rental property. And she pays petrol money for the carer who drives the child from his mother’s home to the school, just to help her out.
The paternal grandmother trod the difficult line between conveying her concerns about the chaos in her son’s home and his stubbornness about it, with the need to ensure that she did not damage her relationship with him. It is a difficult position for a mother. She did it fairly and well. She says that overall the home is safe for the child.
I regarded the paternal grandmother’s evidence as honest and reliable.
(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;
The child’s intellectual disability and autism are central considerations in this case, not because they define him, but because they define the care that he needs.
The child’s mother was born in China. His father was born in Australia. I have not detected any difficulties between the parents when it comes to the child’s mixed cultural background. He seems free to enjoy both cultures.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
One of the ironies of the case was that each parent emphasised the need for stability and consistency for the child, and yet each made proposals that would change that, and each accused the other of undermining his consistent routine.
The one change in the child’s life that is unavoidable is the change in his mother’s accommodation. That is through no fault of her own.
The Family Report writer emphasised the need for as few changes as possible for the child, and that need cannot be questioned. The child is settled in his current routine. Although there were references to sleep problems in his father’s home, and the mother was critical that it was a lack of routine in the father’s home that led to those problems, not experienced in her home, the evidence did not permit me to make any definitive finding that there was a particular problem arising from the father’s care. In fact the paternal grandmother’s evidence persuaded me that the child has some sleep problems in her household as well. I am not sure that he is totally without them in his mother’s home.
During the case, the father said that orders for the child to spend more time with him would not result in a change of circumstances, because he already spends more time with him than set out in the last orders. The mother agreed that there is flexibility between the parents, and that sometimes the child spends extra time with the father, but not nearly as much extra time as the father claims. Again I cannot make a definitive finding about that. It is excellent that the parties continue to negotiate mutually convenient times. They can continue to do so if they choose.
By the end of the case, the mother sought orders that would very substantially reduce the father’s time with the child. The proposal arose only because of the way the evidence emerged as to whether the paternal grandmother could be in substantial attendance with him. I have not found that such substantial attendance is needed in any event.
By the end of the case, the father sought to retain the current orders. It was not clear why his case had so significantly changed, except perhaps that he was no longer pushing for mainstream schooling, at least until he could do more research.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
I am satisfied that the mother proposes obtaining accommodation in the same area that she presently lives, so that she is close to the paternal grandmother and the child’s medical practitioners, and proximate to X School.
I would be concerned if any school were chosen for the child that could make it practically difficult for him to spend the time during the week that he currently spends with his mother. That is an important consideration given that she does not drive.
I would also be concerned if his time with his father were interrupted by the need for supervision which could be a practical impediment to the relationship they currently enjoy.
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
These considerations are not relevant in this case.
(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 child has been the focus of litigation for too much of his life. It is important to arrive at a decision that will minimise the risk of further litigation. That consideration probably underpins the consensus that there must be one parent responsible for the decision-making.
CONCLUSION
The parents have both approached this case on the basis that they can no longer make major decisions for the child together. The experts agree that they need one decision-maker so that decisions can be prompt and effective. No-one is able to suggest any person or agent through whom decisions can be made except for one of the two parents.
Counsel for the father referred me to the Convention on the Rights of the Child and the Convention on the Rights of Persons with Disabilities, both ratified by Australia. Although not operating by their own force on Australian domestic law, they are conventions that should be considered in interpreting Australian law. Counsel for the father submitted that the father is the better advocate for the child’s needs and equality for him, in accordance with the principles in the Conventions.
The evidence does not sustain that. Both these parents care deeply about the best possibilities for their son. The father’s assertion that he emphasises what the child can do but the mother emphasises what he cannot, is in part a true reflection on their respective personalities. But it tells only a little of the real story: of the commitment both have to the child’s capacity for every reasonable opportunity, and to promote his well-being, albeit with the different approaches I have analysed in detail above.
In the difficult circumstances of having to choose, the Family Report writer and the ICL recommend it should be the mother. I agree.
I am satisfied that of the two parents, the mother is the more likely to co-operate with and follow the advice of the medical and educational experts. She is also the one more likely to include the father in the decision-making process. She acts less unilaterally than him. Over the years, she has largely sought and wanted his opinion in a way that makes me confident that she will welcome his input. She proposed a case conference approach at regular intervals. It was her own suggestion, from the start of the case. She has been responsible for organising case conferences in the past. There is every reason to be confident that she shall continue and shall welcome the father’s opinion on major topics.
Although there was no argument against the concept of a case conference, the various details were not fully addressed. Counsel for the mother was the most helpful. She suggested that there should be an annual conference held in the third school term of each year, so that arrangements can be considered for the following school year. She proposed an independent facilitator, and that each party could attend with up to four people (including their choice of doctors, family members, and/or other experts).
I am satisfied that there should be only one conference per year, and it should be arranged by the mother. Additional meetings and/or conferences can be held by agreement between the parties. I would not bind them to more, given how resource intensive they are for the educators and the health professionals.
I am satisfied that the number of people brought to the meeting by each party should be limited as proposed, but with the leeway for any additional people by agreement between the parents.
I agree that the meetings should be convened by an independent facilitator. Counsel for the mother suggested someone from MOIRA. I am satisfied that the preferable suggestion is someone from Relationships Australia. I was advised that the charge would be insignificant. I propose that the ICL should advise the parties of the Relationships Australia office that is able to take on the task, and that is the best placed geographically for the family. In the event that cannot be arranged, the mother should arrange a facilitator, as part of her responsibility in arranging the conference.
I agree with the proposal by counsel for the mother that there should be a settled agenda before each meeting. Each parent should be able to contribute to it. The mother should give the father a written draft agenda 28 days before the conference, and he should return it to her, with any additions he seeks, within 14 days. That way, it will be available 14 days before the conference.
I am confident that the father shall, as he says, continue to research new and alternative ideas and therapies for the child’s care. I am satisfied that they can be discussed at the conference, or at other times by agreement between the parents, and the mother shall weigh them in the mix.
The mother’s counsel proposed that an action plan be prepared at each conference. I have considered that. I do not propose writing it into the orders. It may introduce an ambiguity as to what should happen if the plan needs to change. It is up to the mother if there is such a plan, and if so, if it needs to change.
I contemplated orders to ensure that outside the case conference, the mother only makes major decisions for the child having first sought the father’s opinion. I have decided that it is too cumbersome to restrict her in that way. The annual case conference will provide the best structure for his input. In between, hopefully very few major decisions will be required. In any event, I am satisfied that the mother is likely to consult the father about major decisions.
I am satisfied that it is in the child’s best interests to continue to spend the very substantial periods that he currently spends in each home. Although the mother would prefer the child to come back from his father’s home on Sunday morning, I see potential grief in him arriving late, when she is due to take him to church. As I do not propose altering the time that the father collects the child at the start of their weekly time together, I do not propose altering the finish time either.
The father’s time with the child shall not be supervised. It can take place in his own home. On balance, the issue about the father’s home has arrived at this point. The child is used to each household. The child is cared for well enough in each household. The child is happy enough in each household. Both parents need their homes better organised. Both should accept an assessment by Child First. Both should organise their homes in accordance with that assessment. I do not propose ordering any further on-going assessments. On balance, I see that as leading to more problems than it would solve.
What I do propose is that the mother be restrained from writing further letters to doctors and other health professionals, the child’s school, the father, the paternal grandmother or paternal grandfather, and DHS, in relation to the father’s home, his car and his day-to-day care of the child. It simply has to stop. It is an area in which she can be properly criticised. It is behaviour that no doubt leads to or exacerbates continuing difficulties between her and the father. If one of the child’s teachers or doctors has a genuine concern, he or she can take the appropriate action. They should have a copy of these Reasons for Judgment to fully understand my findings, and for completeness, a copy of orders.
The child should continue at X School on four days per week, with one day home-schooling with his father at this point. Although I do not want to constrain the educational decisions for the child, I am satisfied that I need to write into the orders that the one day per week home-schooling shall continue. Without that, there could be a dispute. The mother needs to know that her educational decision-making must factor that in.
As to the day of the week for home-schooling, which day it is in a given year is still something to be negotiated between the parties, but failing agreement, the mother, as the decision-maker, shall be able to select the day, weighing up all of the child’s other educational needs.
That leaves the vexing question of any appointments for the child that fall on a home-school day. I have considered the advantage of the certainty of an order that the mother must not make any appointment that day, but I have the concern that it could be to the child’s detriment if that were the only or best time for an important appointment. I have considered the converse, an order that the father must make the child available for any appointment on that day, but am concerned it could be abused or perceived as abused, thus leading to more ill-will between the parents. Finally, I have considered a make-up day for the father on the Sunday following any such appointment. It too has its complications. As it is not something counsel addressed me about, I shall welcome submissions from them.
I have no doubt that each parent will be disappointed with aspects of this decision. I am hopeful that their love for the child will transcend that disappointment. Each shall remain integrally involved in his care. He needs that.
THE ORDERS
The orders I propose, subject to submissions as to form generally, and as to appointments for the child on the home schooling day, are as follows:
1.That all previous parenting orders in relation to the child K born … April 2001 shall be discharged.
2.That subject to paragraphs 3 and 4 of these orders, the mother shall have sole parental responsibility for health and educational decisions for the child.
3.That the father shall be permitted to home-school the child on one day per week during school terms, on a day when the child is living with him pursuant to these orders, and being a day agreed between the parents at the start of each school year, and failing agreement, a day to be chosen by the mother.
4.That the mother shall arrange an annual case conference to discuss the child’s health and education:
(a) To be facilitated by a Relationships Australia office as advised to the parties by the Independent Children’s Lawyer, or failing that arrangement being put in place by the Independent Children’s Lawyer, the mother shall arrange the facilitator;
(b) To be held no later than the end of the third school term;
(c) To be attended by each parent and up to four people chosen by each of them, including any family, doctors, allied health or teaching professionals;
(d) With an agenda to be provided by the mother to the father at least 28 days’ before the conference, to be returned to her by the father with any additional agenda items within 14 days’ of his receipt of it;
provided that in the absence of any agreement, the mother shall determine the health and educational issues, and shall, between annual conferences, keep the father informed of any such health or educational decisions.
5.Subject to paragraph 6 of these orders:
(a)The child shall live with the father during school term and holiday time, each week from immediately after school Wednesday, or from 12.00 noon Wednesday when it is a non school day, to 6.00pm Saturday; and
(b)The child shall live with the mother at all other times.
6.For the purposes of Christmas and Father’s Day:
(a) The child shall live with the father:
(i)From 6.00pm on 24 December 2011 to 3.00pm on 25 December 2011 and each alternate year thereafter;
(ii)From 3.00pm on 25 December 2012 to 6.00pm on 26 December 2012 and each alternate year thereafter;
(iii)On the Father’s Day week-end in each year from 6.00pm Saturday to 6.00pm Sunday:
(b) The child shall live with the mother:
(i)From 3.00pm on 25 December 2011 to 6.00pm 26 December 2011 and each alternate year thereafter; and
(ii)From 6.00pm 24 December 2012 to 3.00pm 25 December 2012 and each alternate year thereafter.
7.For the purpose of change-overs in these orders the father or his nominee shall punctually collect the child from and return him to:
(a) School where such time commences or concludes on a school day; and
(b) The mother’s residence when such time commences or concludes on a non school day.
8.The father and mother shall:
(a) Keep the other advised at all times of the child’s current residential address and landline telephone number;
(b) Advise the other immediately in the event that the child suffers any serious illness or injury; and
(c) Authorise all schools the child may attend from time to time to:
(i)Provide the other at the expense of the other, copies of all school reports, school notices and school photographs in relation to the child;
(ii)Communicate with the other either by telephone, in writing or by personal attendance, in respect to the child’s progress at his school; and
(iii)Permit the other to attend all school functions to which parents are normally invited.
9.That the mother shall authorise any medical practitioner upon whom the child may attend from time to time, to communicate with the father in respect to his medical condition and/or requirements, to ensure the father knows of the child’s health and any treatment.
10.That the mother shall be and is hereby restrained herself or by her servants or agents from writing letters or sending material to any doctors, health professionals, schools, educators, the father, the paternal grandmother or paternal grandfather, or the Department of Human Services with any complaints in relation to the state of the father’s home or his car or his day-to-day care of the child.
11.That the ICL shall be discharged after arranging the Relationships Australia facilitator in accordance with paragraph 4 of these orders (if it can be achieved), and after arranging for these Reasons for Judgment and a sealed copy of these orders to be forwarded to Dr R, Dr M, Dr G, Dr C and Ms W.
12.That all existing applications shall be otherwise dismissed and the case removed from the list of cases awaiting finalisation in the court.
13.That 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.
14.That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel and solicitor acting as counsel.
I certify that the preceding two hundred & sixty-five (265) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 8 June 2011.
Associate:
Date: 8 June 2011
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