Change in residence of 7 yr old to Father who is better able to meet Child's needs

Previous Orders had been made by consent in 2014 when the Child was approximately 2 years old.

In 2017 the Father brought proceedings seeking Sole Parental Responsibility for the Child who was 7 years old when the Court’s decision was delivered in March 2020.

The Child had always lived with his Mother, who was seeking an Order for Equal Shared Parental Responsibility.

The Child has a moderate intellectual delay and behavioural issues. He requires ongoing support, assessments and therapies.

The Mother has not neglected the Child, but the Father is:

better as managing the Child’s behaviour;
is more active in seeking appropriate assistance for the Child;
more likely to appropriately support the Child at home

The Mother would not allow the Father to attend medical appointments for the Child jointly with her. The Court said the “mother’s attitude to the father’s involvement in appointments for X leaves a lot to be desired.”

The Mother would also respond to the Father in a hostile manner. The Court said it needed to make an Order that would not least expose the Child to ongoing conflict between the parents.

The Court found the Father filed his application because of genuine concern about his son and a genuine belief that he would have a better future if he lived with him and not because of a desire to gain the upper hand with the Mother or for any other ulterior motive.

The Court decided the matter met the Rule in Rice & Asplund because:

issues surrounding the Child’s health and development had become apparent since the previous Orders were made; and
the parties had not been able to effectively co-parent the Child.

The Court:

found the relationship between the parents was so poor that it was not in the Child’s best interests for them to share parental responsibility;
that the Child had a good relationship with the Father and was likely to cope with a change his residence to live with his Father;
Made Orders for:
- the Father to have Sole Parental Responsibility;
- the Child to live with the Father;
- the Child to spend time with the Mother:
  - each alternate weekend from after school Friday until before school Monday; and
  - for 2 1/2 hours each Tuesday after school;
  - for half of all school holidays.

NOTE: This case has been published by the Court under a PSEUDONYM, rather than using the real names of the parties.

Harborne & Joyners
[2020] FCCA 540 (12 March 2020)

Last Updated: 1 April 2020

FEDERAL CIRCUIT COURT OF AUSTRALIA

HARBORNE & JOYNERS

[2020] FCCA 540

Legislation:

Family Law Act Cth 1975 ss.60CC, 61DA

Cases cited:

Mazorski & Albright [2007] FamCA 520; (2007) 37 FamLR 518

Rice & Asplund [1978] FamCA 84; (1979) FLC 90-725

Applicant:

MR HARBORNE

Respondent:

MS JOYNERS

File Number:

NCC 264 of 2014

Judgment of:

Judge Terry

Hearing dates:

5 & 6 December 2019 & 28 January & 6 February 2020

Date of Last Submission:

6 February 2020

Delivered at:

Newcastle

Delivered on:

12 March 2020

REPRESENTATION

Counsel for the Applicant:

Ms Ticehurst

Solicitors for the Applicant:

Little & Associates Solicitors

Counsel for the Respondent:

Mr Rugendyke

Solicitors appearing for the Respondent:

Kilpatrick Hatton

Solicitor Advocate for the Independent Children’s Lawyer:

Ms O’Rourke

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW Gosford

ORDERS
(1) All previous parenting orders concerning the child X born in 2012 (the child) are discharged.

(2) The father shall have sole parental responsibility for the child.

(3) The child shall live with the father.

(4) The child shall spend time with the mother as follows:
(b) During school holidays:
- - - (i) For half of the school holiday periods which commence at the end of Terms 1, 2 and 3 being:
      
      the first half in even numbered years, commencing at 3.00pm on the last day of term, and concluding at 5.00pm on the second Saturday of the holiday period; and
      
      the second half in odd numbered years commencing at 5.00pm on the second Saturday of the holiday period and concluding at 9.00am on the first day of the next school term.
    (ii) During the Christmas school holiday period which commences at the end of Term 4:
    - in even numbered years for the first half commencing at 3.00pm on the last day of term, and concluding at 5.00pm on 8 January, and
      
      in odd numbered years for the second half commencing at 5.00pm on 8 January and concluding at 9.00am on the first day of Term 1.
    (iii) On the child’s birthday if not otherwise spending time with the child:
    - If the birthday falls on a weekend or holiday, from 10.00am until 3.00pm;
      
      If the birthday is a school day, from 3.00pm until 5.30pm.
(c) For the purposes of changeover the following shall apply:
(5) The parties shall use a Communication Book which is kept in the child’s school bag to advise and notify one another about any significant issue related to the child including about his arrangements, holidays, travel, health or welfare.

(6) This order is sufficient authority for the principal of the child’s school or his or her delegate to provide directly to the mother copies of all newsletters, child’s school reports, invitations to parents and other documents which have also been provided to the father including correspondence and documents related to the child’s education and welfare at school.

(7) The mother may attend any school events at the child’s school to which the parents of the students are invited.

(8) Within 7 days the father shall provide to the mother a list of all of the child’s treating medical practitioners, therapists and any other allied health practitioners, and shall notify the mother of any changes to those details within 7 days of any change.

(9) Within 14 days the father shall provide all necessary authorisations and consents and a copy of these Orders to the child’s treating medical practitioners, therapists and any other allied health practitioners which will enable the mother to request from such practitioners any discussions and/or appointments with herself about the child’s health and treatment plans and to provide the mother with copies of any reports or other documents which have also been provided to the father by the practitioner.

(10) Within 7 days each party shall notify the other through their respective solicitors of their contact details (phone and residential address) and thereafter directly notify one another of any change within 48 hours of such change.

(11) Each party shall notify the other directly by mobile phone in the case of an emergency concerning the child as soon as practicable.

(12) The mother may attend any hospital or clinic in the event of any medical emergency or accident involving the child.

(13) Each party is restrained from denigrating the other party in the presence or hearing of the child and each party shall immediately remove the child from the vicinity of any other person who is engaging in denigration of the other party or of any member of the child’s family.
IT IS NOTED that publication of this judgment under the pseudonym Harborne & Joyners is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT

OF AUSTRALIA

AT NEWCASTLE

NCC 264 of 2014

MR HARBORNE

Applicant

And

MS JOYNERS

Respondent

REASONS FOR JUDGMENT

Introduction
1. X, 7, faces significant challenges in life. He has a moderate intellectual delay, his speech is not well developed, he struggles to learn and he has behavioural issues.
2. X’s parents separated when he was only a few months old and he has always lived with his mother.
3. Court orders were made in 2014 which provided for the parents to have equal shared parental responsibility and for X to live with his mother and spend time with his father. However in 2017 the father filed a fresh application in which he sought an order that X live with him and spend time with the mother and that he have sole parental responsibility.
4. At trial the father said that these orders were necessary to ensure that X had an optimal outcome in life. He said that he had always been the instigator of assessments and interventions for X and that the mother had only fitfully co-operated with this and had sometimes frustrated his efforts. He said that he had a proper understanding of X’s issues whereas the mother was in denial about the extent of them and that he was better able to manage X’s behaviour.
5. The mother opposed a change of residence. She said that she was X’s primary attachment figure and that he might not cope with a change which saw him separated from her and his older brother B. She conceded that she had a different view to the father about the severity of X’s issues but her counsel submitted that this was not a refusal to accept reality but was based on the fact that X presented as a different child when he was in her care.
6. The mother acknowledged that the father had been proactive in arranging assessments and therapies for the child but said that she had always recognised that X had issues and had taken him to appointments and had not obstructed him receiving speech and occupational therapy and she was the one who had been proactive about arranging psychologist’s appointments to assist X with his behaviour management.
7. Notwithstanding the evidence that there had been a continual tug of war between the parties about appointments for X; that they disagreed about which paediatrician he should see; that he missed out on attending an early intervention program before he started school because the mother would not co-operate with the father when he tried to organise it; and that the mother said that she felt intimidated by the father and would not sit in the same room as him or talk directly to him about X, the mother proposed that the parents continue to have equal shared parental responsibility.
8. The Independent Children’s Lawyer reserved her position until the end of the trial but during final submissions handed up a Minute of Order proposing that the father have sole parental responsibility and that X live with him and spend time with the mother on alternate weekends and for a few hours after school each Tuesday during school terms and for half of the school holidays.
The Rule in Rice & Asplund
1. The relevant factors in this matter are that the 2014 orders were made by consent. A Limited Issues report was prepared prior to the orders being agreed to but it dealt only with the issue of the time which X, then 2, should spend with the father and did not touch on his health and developmental issues. The parties settled the matter soon after the report was released and no hearing occurred and no findings were made.
2. Since then the full extent of X’s issues has become clear and there is abundant evidence that the parents have been unable to effectively co-parent him and that it is in X’s best interests that the 2014 orders be reconsidered.
3. It is also relevant to note that although the mother sought orders which were effectively the same as the 2014 orders she did not do so on the basis of the existence of the earlier orders but on the basis of the evidence at trial.
The evidence
1. It is not usually my practice to allow a party to rely on two affidavits at trial but the matter was originally listed for trial in June 2019 and was not reached and the father’s second affidavit was filed to up-date the court on developments since May 2019.
2. The mother relied on her affidavit filed on 10 May 2019 and the affidavit of her partner Mr B filed on 7 January 2020.
3. A Family Report was prepared by Mr C, a Regulation 7 Family Consultant, following interviews on 15 November 2018.
4. A Limited Issues family report was prepared by Ms D, a family consultant, on 22 August 2014. Mr C read that report and referred to it in his report and the father was cross-examined about its contents but it was not put into evidence before me as a separate document and Ms D was not made available for cross-examination.
5. All of the witnesses were cross-examined.
6. The mother’s counsel vigorously, indeed aggressively, cross-examined the father for the best part of a day and the aggression was completely unwarranted.
7. The father remained calm and responsive throughout this cross-examination, albeit sometimes with a puzzled look on his face as if trying to work out what he had done wrong. No credit issues emerged as a result of this cross-examination and it was abundantly clear as the father answered questions that he had filed his application because of genuine concern about his son and a genuine belief that he would have a better future if he lived with him and not because of a desire to gain the upper hand with the mother or for any other ulterior motive.
8. It is open to question whether such aggressive cross-examination is ever warranted in a parenting case but it was certainly not warranted in this one.
9. There were some credit issues with the mother. I do not doubt that she loves X and is also genuinely concerned about him but her evidence was not always reliable.
10. The mother told the family report writer in December 2018 that she had been in a relationship with Mr B since late 2017 and that he stayed two nights a week at her home. In her May 2019 affidavit however she said that she did not have a partner.
11. Mr B was not on affidavit when the trial commenced in December 2019 but he filed an affidavit after it was adjourned part heard. He described himself as the mother’s partner and it was clear that he and the mother had been in an ongoing relationship since late 2017.
12. Why the mother failed to obtain an affidavit from him earlier or refer to him in her May 2019 affidavit is puzzling because it was not suggested that anything adverse was known about him.
13. It was the father’s case that the mother’s older children F, G and H all had learning difficulties which he said were not adequately addressed by the mother when he lived with her. The mother agreed that B had issues but said this in her affidavit:
  H, F and G do not have any special needs. The girls no longer attend school and they have grown into very responsible, hardworking adults. The girls were not exceptionally good at mathematics and I engaged the help of a tutor from time to time, however there was no need for H, F or G to see counsellors, speech therapists or specialist doctors.^[2]
14. It was revealed during the hearing that F and G both had learning difficulties at school and that G was diagnosed as having a Moderate Intellectual Delay and was in an IO class from Year 3 until the end of primary school.
15. The fact that there are credit issues with the mother does not determine the case but it is something I will need to take into account when I have to determine issues in dispute. The mother’s failure to acknowledge in her affidavit that F and G had learning difficulties also has other implications for the case.
Background
1. The parties have one child, X, who was born in 2012.
2. The mother has four older children, H, who was about 17 when cohabitation commenced, F, who was about 15, G, who was about 11 and B, who was about 7 and they lived with the parties throughout the relationship.
3. The father has two older children, J and K. K came to live with the parties during 2011.
4. The mother fell pregnant with X in 2011. More than once during the hearing she referred to the fact that the father was not happy about the pregnancy and suggested that she have an abortion. There was no dispute that the father was unhappy about the pregnancy but as I observed during the trial there is a difference between the idea of a child and the actual living child. The father may not have relished the idea of having another child at the age of 45 but he has been a responsible, loving and involved father since X was born and that is what matters.
5. The parties separated in July or August 2012 when X was around four months old. The father said that the cause of the separation was that K was not made welcome in the home but I cannot make a finding about why the separation occurred and nothing turns on it.
6. After they separated the parties were able to agree about the father spending time with X but their relationship was not an easy one and there were issues at changeover and an issue about the mother organising eye surgery for X without informing the father and on 6 February 2014 the father filed an application seeking parenting orders.
7. On 29 May 2014 the judge before whom the matter came ordered the preparation of a Limited Issues report. The issue the family consultant was asked to consider was the father’s time with X.
8. The father said that he was not happy that a Limited Issues report had been ordered and that he pressed for the preparation of a full family report. He said that he was concerned that X had developmental issues which were not being properly managed or investigated and that he wanted this issue considered as well. During cross-examination he said that he was concerned about X’s ability to speak, his motor skills, his gait and clumsiness and his ability to comprehend things.
9. The judge declined to order a full family report and only ordered a Limited Issues Report and it was released on 22 August 2014. The family consultant who prepared the report emphasised the strength of X’s bond with his mother and made recommendations about the time he should spend with his father.
10. The mother’s counsel vigorously challenged the father about the veracity of his evidence that he had concerns about X’s development at this time. He pointed out that there was no mention in the Limited Issues report of either parent raising any issues about X’s development with the report writer and further pointed out that the report writer expressed the opinion that X was developing within normal parameters.
11. It was put to the father that an assessment of the child by P Speech Pathology on 10 February 2015 which he was instrumental in organising did not support his claim that in mid-2014 there was reason to be concerned about X’s speech.
12. That is not correct. On page 1 of that report the speech pathologist did express the opinion that the child presented with age appropriate speech. However on the second page four “no” boxes are ticked and according to the table on that page it is only if 0-1 “no” boxes are ticked that the child can be said to be developing within the expected range. A tick against 2-4 “no” boxes meant that his development should be closely monitored until the missing skills emerged.^[3]
13. The missing skills did not emerge and in a speech pathology assessment prepared by the same speech pathologist on 7 March 2016 it was noted that X was showing delayed skills in speech articulation, expressive language and receptive language and that speech pathology intervention was recommended.
14. The father’s concern about the child’s language development was warranted in February 2015 when the first speech pathology report was prepared and I accept that he had those concerns in 2014 when the Limited Issues report was prepared.
15. I also accept that the father had the other concerns he articulated at this time. In a referral written by Dr L from M Medical Centre to Dr N at Educare on 18 June 2015, only a few months after the speech pathology assessment in February 2015, it was noted that the father had concerns about X’s development as did his day-care and an extensive list of problems was outlined including problems with the child’s speech, his gait, his social development, his reactions and his interaction with other children.
16. I do not accept that these problems all became worrying subsequent to the Limited Issues report being prepared, and in addition the mother had raised concerns about the child’s development with her GP on a couple of occasions well prior to the interviews for the Limited Issues report.
17. Limited Issues reports are a creature of this registry and are designed to maximise the use of family consultant resources. Less time is set aside for the preparation of a Limited Issues report than for a full family report. That fact and the fact that the family consultant was only asked to consider a limited issue may well have led to issues about the child’s development not being discussed or explored.
18. The family report writer was not made available for cross-examination and no request seems to have been made for the production of her notes. The father was a witness of credit and notwithstanding the absence of any reference to it in the report I accept the father’s evidence that he did raise his concerns about the child’s development with both the judge and the family consultant in 2014.
19. Insofar as the mother’s counsel hoped to make a credit point about this issue he failed.
20. Following the release of the report the parties agreed on final orders. The father said and I accept that he was somewhat reluctant to do so when his concerns about the appropriate management of X’s issues had not been addressed but nevertheless he did agree and on 20 November 2014 orders made by consent for X to live with the mother and spend time with the father on alternate weekends and on Tuesdays overnight each week.
21. An order was also made by consent for the parties to have equal shared parental responsibility.
22. After the orders were made the father remained concerned about X’s development. As noted earlier he was instrumental in ensuring that X had a speech assessment in February 2015. X was then attending O Early Learning Centre and the assessment took place at his day care centre.
23. In June 2015 the father obtained a referral for the child to see Dr N, a Consultant Paediatrician at Educare. The referral letter noted that the parents were divorced and that the father “has had concerns for X’s development which are also being flagged by his daycare/preschool.”^[4]
24. Both parents and the mother’s sister attended an appointment with Dr Non 9 September 2015. He identified certain issues for X and recommended that the parents obtain a Cognitive Assessment, a report from his pre-school teacher about his learning and behaviour, a hearing assessment and a formal baseline assessment by an Occupational Therapist and a Speech Pathologist. He said that he would like to follow him up in 12 months and would like to further assess for Autism Spectrum Disorder if any significant concerns were still there are about his behaviour.
25. On 7 March 2016 X was again screened by P Speech Pathology at his day care. The report noted that X presented with speech sound errors that are not considered age appropriate, a limited vocabulary, reduced sentence length and many grammar errors and difficulties understanding questions.
26. On 18 May 2016 the father obtained another referral to Dr N. Dr N’s diagnoses after considering the available information was that X had a severe expressive language delay, perceived “delayed development” due to language and visual impairment with good improvement since corrective glasses, behaviour issues – likely Autism Spectrum Disorder (ASD) and monitoring for Attention Deficit Hyperactivity Disorder (ADHD).
27. Dr N recommended continuing speech therapy and follow up with a psychologist for an assessment about whether he had autism or ADHD and made other recommendations similar to those made in the 2015 report.
28. In June 2016 X was seen by Ms Q, a paediatric occupational therapist at Educare. Ms Q saw him separately in the company of each parent. She noted that the mother said that her primary concerns were “psychological problems” related to X’s behaviour and that the father expressed concerns that X may on the autism spectrum and may have some sensory processing difficulties.^[5]
29. Ms Q conducted a thorough assessment and found that X had very low visual perception, low manual dexterity and fine motor co-ordination, immature pencil grasp and delayed pre-handwriting skills, ongoing left/right confusion, reduced in hand awareness and body awareness, high levels of distractibility impacting on auditory processing and the ability to complete tasks as requested and arousal regulation and emotional resilience/behavioural difficulties.^[6]
30. In July & August 2016 Ms R, a psychologist at Educare, saw X for the purposes of assessing whether he had Autism Spectrum Disorder. She concluded that he did not but said that he met the criteria for Mild Intellectual Disability. She strongly recommended that the child’s caregivers apply for NDIS funding to access support for X in the areas of regular speech pathology for receptive and expressive language skills, occupational therapy for motor skills and psychology sessions for social, cognitive and behaviour support.
31. The father subsequently made an application for NDIS funding using his address as X’s address. In her affidavit the mother complained that the father had done this with a view to misleading people about where X was living and keeping her out of the loop. However she agreed that the father had discussed this method of proceeding with her and told her that funding was likely to be approved much more quickly if his address was used rather than the mother’s address on the Region S and that he had been right about this.
32. In her affidavit the mother also said as follows:
  I have not received any NDIS funding as a result of this application and I am concerned that Mr Harborne may be having X medically assessed to have access to government payments.^[7]
33. When the mother was in the witness box I asked her about this evidence to be sure that I was not misinterpreting what she had said. She confirmed that she thought the father might have been getting the NDIS money and spending it on himself.
34. There is abundant evidence in the tender bundle that NDIS funding is not paid to parents but is paid direct to service providers and that X’s allocation has been used to pay for speech therapy with P Speech Pathology, occupational therapy with T and psychology sessions with Ms U of V & Associates.
35. On 16 November 2016 the father took X for a further appointment with Dr N. Dr N diagnosed X with Mild Intellectual Disability, Severe expressive language delay, perceived development delay and autistic traits but said that this was likely copied behaviour and that he did not meet the criteria for ASD.
36. Dr N recommended that X have genetic testing and on 8 June 2017 the father arranged an appointment for X at W Genetics. However the genetic testing did not proceed as the mother refused to engage in the process.
37. On 7 July 2017 the father filed an application in this court seeking an order that X live with him.
38. X had turned 5 in 2017 and he was due to start school in 2018. The 2014 court orders contained a provision that he was to be enrolled at Y School and in 2017 the father went to the school and obtained information about an early intervention program in which X could be enrolled. He gave the relevant person at the school the mother’s telephone number so that they could contact her to discuss this but they informed the father that the number he gave did not answer. The mother later complained about the father giving people her telephone number. X was not enrolled in the early intervention program.
39. On 29 September 2017 the mother informed the father by text message that she had ceased X’s attendance at O Early Learning Centre and had enrolled him in a new day care centre run by Z and that he would be starting there the following day. The father was not happy about this but he did not make a fuss and he re-organised X’s NDIS funding so that he could continue to receive speech therapy and occupational therapy at his new day care.
40. X had behavioural problems at the Z day care centre. The staff discussed this with the mother and also expressed concern more than once that X was not enrolled in a school for 2018.
41. In late 2017 the mother sold her home in Suburb AA and relocated to Town BB which meant that the order that X attend Y School could not be carried into effect.
42. The mother maintained that this was because the house she was renting at Suburb Y was sold and that she could not afford another rental in that area. However the mother had formed a relationship with Mr B in 2017 and he owned a home in Town BB and one of the mother’s daughters was also living in Town BB. I am satisfied that the mother made a deliberate choice to move to Town BB because it suited her life circumstances.
43. In or about late 2017 the mother enrolled X at Town BB Primary School without consultation with the father.
44. Once again although the mother had acted unilaterally the father went along with what had happened and X commenced kindergarten in a mainstream class in late January 2018.
45. X had significant problems at school. He was suspended twice and was the subject of 70 behaviour notifications. The school initially suggested that he attend from 9.00am to 1.00pm to help him settle in but eventually only allowed him to attend for 1.5 hours per day due to his disruptive behaviour and inability to cope.
46. The mother said that after a period of time this was increased back to 9.00am to 1.00pm but X struggled throughout 2018. A Teacher Report prepared in June 2018 stated that he was far below grade, did not retain learned content and on some days could not follow instructions although he was also described as a happy and empathic child.
47. X continued to receive speech therapy and occupational therapy funded by the NDIS after he commenced school with the sessions taking place at school.
48. The mother was by this stage unhappy with Educare which she considered was “biased to the father” and in December 2017 the parents arranged for X to see Dr CC, a psychologist employed by V & Associates. Dr CC produced a report in which she said that she felt there was little more to investigate regarding X’s current level of development and associated management but that it was extremely important to:
  ….provide ongoing clinical intervention to both of X’s parents around behavioural techniques to support them in providing consistent boundaries, consequences and expectations for X.^[8]
49. In May 2018 the mother took steps to arrange for X to commence appointments with a psychologist at V & Associates and in August 2018 he commenced regular sessions with Ms U. The father was keen to be involved but the mother was insistent that he could only take X to appointments in his time with the child and as he only has time with him for a few hours after school on Tuesday’s this was difficult to organise.
50. Of the 11 subsequent appointments with Ms U the mother took the child to 9 and the father to two.
51. X’s difficulties at school continued during 2019. The mother said in her May 2019 affidavit that he was attending full days but that there continued to be issues with his behaviour and capacity to learn. A school note in October 2019 referred to the fact that he could not recognise many letters, could not retain information, confused his colours and had maladaptive ways of trying to get other children to interact with him. The father expressed concern that the mainstream class was too big and was not suitable for X and that he needed to be in a much smaller class with greater support. There is no evidence of the mother ever expressing such a concern.
52. In February 2019 the mother obtained a referral for X to see a paediatrician at City DD Specialist Centre and took X to an appointment there on 20 March 2019. She notified the father of the appointment after it had taken place and said that the expected the father to make his own appointment as the parties did not usually attend appointments together.
53. The paediatrician requested that the school counsellor at Town BB Primary School carry out a cognitive assessment and a report was prepared by Ms EE, a registered psychologist and school counsellor. She diagnosed X as having a Moderate Intellectual Disability.
54. On 16 & 17 October 2019 a language skills assessment was done and X’s scores in all language areas indicated a severe expressive and receptive language delay. The opinion was expressed that X would have difficulty concentrating on one-on-one tasks.
55. As the result of being re-assessed as having a Moderate Intellectual Disability X qualified for a placement in an IO class and he commenced in an IO class at FF School when school resumed in January 2020.
56. The father is of the view that X would have received a more appropriate diagnosis earlier and been able to attend an IO class earlier if the mother had co-operated in assessments being done earlier. He is also of the view that X would be in a better place now with his education if the mother had not frustrated his attendance in the early intervention program at Y Primary School.
57. The father could be right but I cannot say that with certainty. X’s diagnosis has been an evolving matter since he was two years old. I cannot be certain that the current diagnosis could not have been made with certainty much earlier.
58. It might have made a difference if X had attended the early intervention program at Y School. Perhaps the full extent of his learning difficulties would have been revealed earlier. There no expert evidence which would allow me to come to this conclusion with absolute certainty but is highly regrettable that an opportunity for X to be eased into full time school attendance was passed up.
59. It is highly regrettable that X was left to struggle for two years in a mainstream class which was clearly unsuited to his needs. It is difficult to believe that if the father had been able to make decisions for him this situation would have continued for so long.
60. I finally note that after speaking to Ms U in 2019 the mother agreed that it was appropriate for the genetic testing to proceed and on 4 September 2019 blood samples were taken for this purpose. The results did not point to X having Fragile X syndrome although they did not completely rule it out.
The parties’ circumstances and what their proposals would mean for X
1. The father lives in Suburb GG and is a sales consultant. He leaves home at 8.30am or 9.00am and is usually home by 3.30pm or 4.00pm although he can be required to work longer hours. He said that if X lived with him either he or his partner would be available to look after X before and after school and take him to appointments.
2. Given the strength of the father’s commitment to the child not just while proceedings have been on foot but throughout the child’s life I accept he would ensure that this occurred.
3. The father commenced a relationship with Ms E in 2013 and they commenced cohabitation in 2013. Ms E is a health care worker and has no children.
4. Ms E works at Employer HH and is required to do shift work and be on call. Her shifts may be from 6.00am to 2.30pm or 1.00pm to 9.30pm. She said that either she or the father would always be available to get X ready for school or look after him after school save that the father hopes to use OOSH for changeovers. I accept her evidence.
5. The father’s adult daughters live independently and the only other occupants of the home if X lived with the father would be the father and Ms E.
6. The travel distance between Suburb GG and Town BB is at least 40 minutes and longer in times of heavy traffic and if an order was made for X to live with the father he would have to change schools. The father said that he would enrol him in an IO class at Suburb GG Primary School which was close to his home. He said that the school could provide before and after school care if needed.
7. The father is assiduous about ensuring the best possible outcomes for X and politely persistent in ensuring that X’s needs are met and I am satisfied that if for any reason a place was not available at that school he would ensure that X obtained a place in an appropriate class in an appropriate school.
8. The mother lives in Town BB. Her three daughters have all moved out and she shares the home with B and X. Mr B has sleepovers which both he and the mother said were on random days on a couple of occasions each week.
9. B turned 18 in 2019. He has been diagnosed as suffering from a Moderate Intellectual Disability. He is in the extremely low range of ability on all five indices using the Wechsler Intelligence Scale for children and has been in support classes at school. He attended the HSC Life Skills program at FF School in 2018.
10. The mother works as a cleaner in Town JJ, about forty minutes from Town BB. She said that she worked from 9.00am to 2.30pm but could change the days she worked so that if X lived with the father she could collect him after school on Friday and drop him to school on Monday.
11. If X continues to live with the mother he will continue to attend FF School in Town BB.
X’s best interests
1. Any orders I make about X must be orders determined by treating his best interests as the paramount consideration and s. 60CC(2) and (3) of the Family Law Act contain the matters to which I must have regard in order to determine X’s best interests.
2. S. 60CC (2) contains the primary considerations and the first primary consideration is the benefit to the child of having a meaningful relationship with both of his parents.
3. In the mother’s case outline document her counsel submitted that the father’s affidavit revealed that he was relentlessly critical of the mother and condescending about her and that this should lead the court to be concerned that if X lived with the father his relationship with his mother would be undermined.
4. I do not accept that submission.
5. The father was critical of the mother in his affidavit but it was not across the board criticism. His negative comments were in the context of his concerns about X receiving appropriate assessments and interventions and his concerns about the mother being abusive to him or condoning other’s being abusive to him at changeovers. He did not criticise every aspect of her parenting. He agreed during cross-examination that he had a low opinion of aspects of it but when asked about her strengths as a parent he said that she put a roof over X’s head, fed him, sent him to school looking nice in his school uniform and that she loved him.
6. Over the last five years the father has repeatedly spoken to professional people about his concerns for X and there is nothing in any documents produced on subpoena to suggest that he has ever gratuitously badmouthed the mother to professionals.
7. There is no evidence of the father denigrating the mother to X. In sessions with Ms U in 2019 the mother claimed that X had come home saying that the father told him that he did not have to do what the mother said, in other words was teaching X to disrespect her, but X has a habit of saying such things whenever he does not want to do something. He has told his teachers that they are not the boss of him and in a note about a speech pathology session on 25 July 2019 it is recorded that X was:
  ….initially defiant and would go the opposite of what was asked with the reasoning “Mum said I could.”
8. I do not accept that the father has put X up to being defiant to his mother.
9. The mother’s counsel submitted that the court should be concerned about the father’s arrogant views about the mother inherent in his comment that she was in denial about her children’s limited cognition and that this was due to:
  …her own low education and lacking (sic) standards of acceptable behaviour.^[9]
10. He also referred to the fact that as part of one of the father’ complaints about the behaviour of the mother and her children at changeovers he said that H yelled out:
  …rude aphorisms used by the lower orders of society^[10]
11. These are unfortunate expressions but the father chose to live with the mother after they formed a relationship, did not end the relationship because he felt he was superior to her, has never once made that sort of comment to any professional person and proposes that X continue to spend time with her in the future.
12. Since 2014 the father has been punctilious about complying with court orders concerning the time X spends with each parent save that on a few occasions he has taken the child to medical or therapy appointments during a time when he should have been either at day care or at school because his time with the father under the orders had ended. He has never once withheld the child alleging that the child had an injury which needed investigation or had complained about something which had happened in the mother’s home.
13. There is no basis for me to find that if X lived with the father his relationship with the mother would not be fostered or would be undermined.
14. The mother complained that X called the father’s partner “Mummy Ms E”.
15. Ms E explained that when she tried to discourage X from calling her Mummy he had fallen into calling her Mummy Ms E and she had not been able to stop him doing so. I accept her evidence. I can understand why this is upsetting for the mother but I do not accept that it has arisen out of any ill intent by Ms E or the father or that is a sign that Ms E wishes to supplant the mother in X’s life.
16. There is no foundation for the mother’s belief that the father is seeking to have X live with him because Ms E is unable to have children of her own.
17. The father complained about the mother’s attitude to him. He said that although she agreed to him spending time with X after separation, at changeovers at Suburb KK Shopping Centre she and her eldest daughter H were aggressive and swore at him in front of X making changeover an unpleasant experience. He said that the mother would drive around the carpark to find his car to yell abuse and after he re-partnered would harass his partner.
18. He also alleged that the mother made changeover difficulty by removing the child’s dummy before handing him over or by bringing large numbers of family members to the changeover and insisting that X say goodbye to them all thus unsettling him and making him reluctant to transition to the father’s care.
19. The father said that on 2 December 2014 he noticed that X was uncomfortable passing urine and gave him a salty bath to allay any infection that might be occurring. He said that X was fine the next day but after he told the mother about the issue he received a barrage of abuse by way of text message which included the following:
  …use both must be guilty of touching X inappropriately as like before you held him down and bruised his face. I’ve notified DOCS of what use are doing to him.^[11]
20. The father said that when he commented at a changeover about X wearing thongs the mother responded:
  Get fucked, he likes his thongs, go find some rope and hang yourself you cunt.^[12]
21. He said that there was an occasion when he realised he was going to be late for changeover because traffic was slow due to an accident ahead and he texted the mother to let her know. She responded:
  You are a fucking prick. I have a life; I’m not waiting around for you, you prick.^[13]
22. The father also alleged that the mother denigrated him to the child, talked to the child about changing his surname, taught the child to swear at him and generally tried to diminish his importance in the child’s eyes. He said that the mother, H and G would verbally abused him with a barrage of bad language at changeover and would encourage X to say things like “Fuck off Dad.”
23. I accept the father’s evidence about the incidents at changeover and the mother admitted that she sent the text message accusing the father of child abuse after he mentioned a concern about X having a UTI and I accept that father’s evidence about the other abusive text messages he received. The father was a witness of credit and I do not accept that he made all this up. Ms E confirmed that she had experienced the mother yelling abuse at changeovers and Ms E was a reasonable and convincing witness.
24. The mother’s attitude to the father and her hostile responses to him in text messages and at changeovers are concerning and the evidence in the mother’s affidavit and at trial suggested that she continued to have an antagonistic attitude to the father. She brought up more than once during the hearing the fact that he did not want a child when she became pregnant in 2011 even though it is not relevant to anything. In her trial affidavit she claimed that the father pursued the allocation of NDIS funding so that he could obtain money to spend on himself.
25. However whether all this would cause X to reject the father is open to question and the mother has never failed to comply with the court orders about X spending time with the father and these are not matters which by themselves would incline me to make an order changing X’s residence.
26. The second primary consideration is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence.
27. Neither parent is likely to abuse the child or expose him to family violence.
28. The mother asserted in her affidavit that she was concerned about the father excessively disciplining X. The basis for this was something the father had allegedly said to B seven or eight years ago and the fact that X sometimes came home with scratches and bruises and allegedly said when asked how he hurt himself “Daddy did it”.
29. There is not a shred of evidence that the father inappropriately disciplines X and the mother’s assertion that he may have done so in the past or might do so in the future based on such insubstantial evidence causes me some concern.
30. Neither parent has ever neglected X in the form of being unresponsive to his needs. The father’s concerns about the mother’s attunement to X’s issues and her responsiveness to those issues is best dealt with in the context of assessing her parenting capacity.
31. S. 60CC (3) contains numerous additional considerations and the first of those is any views expressed by the child and the weight to be given to those views.
32. Neither of the parents suggested that X was expressing a view about parenting arrangements and there is no independent evidence that this is the case. He was six at the time of the second family report interviews but the family report writer said that he was resistant to being interviewed and only told the family report writer that he lived with his mother.
33. I must consider the nature of the child’s relationship with each of his parents and any other person including a grandparent of the child.
34. The mother is X’s primary attachment figure and the observation session at the family report interviews did not raise any concerns about her relationship with him.
35. Mr B has been in X’s life for over two years and said that X enjoyed doing activities with him. The father did not suggest that X had ever complained about Mr B and I am satisfied that X has a satisfactory relationship with him.
36. The mother said that X had a good relationship with B. The father alleged that B sometimes hurt X but the mother denied that his occurred and said that B and X had begun playing X box games together.
37. B did not attend the family report interviews and I have no independent evidence about how he and X relate. The father was a witness of credit and I accept that X may have made complaints to him about B but the complaints have not been so frequent and or so dire that I can find that they have a chronically poor relationship and the father proposed that X spend regular time in the mother’s home if the child lived with him.
38. The parties agreed that X was reluctant to separate from the mother and go to the father at changeovers and that he sometimes had meltdowns. The mother said that X was happy to come home at the end of his time with his father and ran to her and that she believed that his reluctance to go to the father at changeovers was evidence that he did not have a good relationship with him.
39. The father maintained that X did have a good relationship with him and the family report writer observed a good relationship. He said as follows about the observation session in November 2018:
  During my observation of the father spending time with X, it was evident at the outset that X was initially reluctant to engage with his father. After some time, the father engaged X with some photos on his phone which depicted X learning to ride a bike with his father. After a short period of time X asked for his mother but then when he was told she was not available, he asked for the father’s partner to join the observation. Ms E upon entering the observation room greeted X warmly and he responded well. He subsequently sat on Ms E’s lap and she was very nurturing and engaging with X. The child then relaxed in the father’s and Ms E’s presence, and both the father and Ms E certainly demonstrated an educational approach to X’s play. X hugged both the father and Ms E upon his departure from the observation room.^[14]
40. There is merit in the submission by the Solicitor for the Independent Children’s Lawyer that X’s behaviour at changeovers may be influenced by exposure to the intractable conflict between the parents and there are snippets in the material in the tender bundle which support a finding that the father and X have a good relationship.
41. In a note dated 16 November 2016 in the Educare file it is recorded that X always had great interaction with the father who brought him to ongoing appointments and that he was very affectionate and not hyperactive.
42. In June 2017 a notification was made the Department of Family & Community Services by someone who claimed that X appeared frightened of the father and screamed when the father tried to take him from the car. The notifier also asserted (incorrectly) that there was an AVO protecting the mother and the child as the father continued to stalk and abuse them.
43. FACS records state that a caseworker from the Department spoke to the child’s pre-school and was informed that there were supports in place for X instigated by the father and that there were no concerns identified regarding X allegedly fearing the father and that on the contrary X always appears to be happy to see the father and did not display any indicators of psychological harm.^[15]
44. The observations of X with his father by Ms Q and Dr CC also speak to the quality of X’s relationship with his father.
45. I am satisfied that X has a good relationship with the father.
46. X also has a good relationship with Ms Q who has known him since he was 16 months old. In submissions the mother’s counsel asserted, based on the observation session at the family report interviews, that he had a better relationship with Ms E than with the father but I cannot draw that conclusion on such limited evidence.
47. I must consider the extent to which each parent has fulfilled, or failed to fulfil, the parents’ obligations to maintain the child.
48. The father pays child support as assessed and as he is a PAYG taxpayer it is a reasonable amount. Neither party ran a case that the other was motivated by child support considerations in bringing their application for parenting orders.
49. I must consider the extent to which each parent has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child.
50. Both parents have always been keen to be part of decision making about the child and to spend time with the child and communicate with the child.
51. I must consider the likely effect of any change in the child’s circumstances including the likely effect of his separation from either of his parents or any other child or person including any grandparent or other relative of the child with whom he has been living.
52. An order that X live with the father will result in a significant change for him. He will cease to live with his mother who he has lived with since his birth and he will be required to again change schools just as he has settled into a new school in Town BB.
53. In the mother’s case outline document it was asserted that X would be distressed about ceasing to live with his mother.
54. X has a good relationship with his mother and he may be distressed by the change but he also has a good relationship with the father. The father is empathic to him and I am satisfied that he would be responsive to any distress X exhibited. I also agree with the submission by the Solicitor Advocate for the Independent Children’s Lawyer that the fact that the child has a warm relationship with Ms E would help him adjust to the change.
55. A change would not be ideal, especially another change of school but if a change of residence meant that X’s needs were better met then it would be in X’s interests for this to occur notwithstanding that it might cause him short term distress.
56. The family report writer was asked about this aspect of the matter. He agreed that a change of residence may cause the child some distress and that another change of school was not ideal. However it was his view that if the child had to change schools so that he was living in a placement which would give him the best chance of success in life then it was a change that could be weathered and was a small price to pay.
57. If X lived with the father he would see B far less frequently than he does now but they are 10 years apart in age and there was no evidence that this would cause the child undue distress.
58. I must consider the practical difficulty and expense of the 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.
59. The distance the parents live apart means that a change of school would have to occur if X lived with the father but X would still be able to see each parent regularly although I have commented previously on this being an odd choice of word; the issue really is whether the proposal will affect the frequency of time a child can spend with a parent and in this case it won’t.
60. The Independent Children’s Lawyer proposed that if X lived with the father he spend time with the mother from 3.00pm until 5.30pm each Tuesday as well as each alternate weekend. However the mother works in Town JJ which is about 40 minutes from Town BB and 80 minutes from the father’s home and the Independent Children’s Lawyer conceded in closing submissions that the practicability of this had not been canvassed with the mother when she was being cross-examined.
61. I must consider the capacity of each parent and any other relevant person including a grandparent of the child to provide for the needs of the child including his emotional and intellectual needs.
62. The father is able to provide for X’s day to day needs and he has been a good and responsive father to X since the parties separated. Leaving aside the issue of his efforts to have the child correctly diagnosed and to ensure that he has had appropriate therapies, the father has done other small things for X.
63. He had arranged swimming lessons for him which he said helped his coordination and routine.
64. Without being asked the father purchased new glasses for X in 2019 when he noticed that his glasses were extremely scratched, and he bought two pairs; one for the child to have at school and one for him to have at the father’s place.
65. He has taken the child away on holidays.
66. Most importantly the father has played a pivotal role in ensuring that X was properly diagnosed.
67. In the mother’s case outline document the mother’s counsel submitted that the father was obsessed with demonstrating that X suffered from various disabilities and needs. That is not a correct representation of the situation. It suggests that the father is insistent on demonstrating that X suffers from disabilities when he doesn’t and that is not the case.
68. A correct representation of the situation is that the father has been persistent in his attempts to obtain a correct diagnosis for X, to ensure that he had speech therapy and occupational therapy and to ensure that he is placed in a class at school which will give him the best opportunity to learn.
69. The father’s case was that the mother was in denial about the extent of X’s learning/cognitive difficulties and put his issues down to bad behaviour and there are snippets in the material in the tender bundle which support this contention.
70. In June 2016 X was referred to Ms Q from Educare for an occupational therapy assessment in the context of severe language delay and suspected ASD/ADHD and behavioural difficulties such as hitting kicking and screaming.
71. Ms Q conducted a separate session with each parent. She said that the mother reported that her primary concerns were psychological problems related to X’s behaviour and did not describe any concerns functionally or from sensory perspective. The father in contrast said that X was affectionate and well behaved and expressed concerns that he may be on the autism spectrum and have some sensory processing difficulties.
72. The mother admitted in her affidavit that she did not agree with genetic testing when it was first proposed and said as follows:
  I did not think X had anything more than a slight learning delay and some poor behaviour at the time.^[16]
73. The mother’s lack of understanding of X’s issues is also illustrated by the following passage in her affidavit filed on 10 May 2019:
  I am concerned that throughout these proceedings X has been portrayed as a delinquent child. I know that X does have some concerns about learning and behavioural issues however he is a sweet, kind and gentle and loving boy who is working really hard with me and his teachers to improve. I feel that my efforts that I am making with X have been undermined by Mr Harborne, despite how hard I am trying.^[17]
74. No-one has ever portrayed X as a delinquent child and the school material reveals that for X to improve it is not just a question of him working hard with his teachers.
75. The mother admitted during cross-examination that she did not think that X had a mild intellectual disability when this was first suggested by Dr N. She also said:
X is not a sick child and at most has a mild learning problem.

I still don’t think he is as bad as the experts say he is.

I think half the tests are unnecessary.
1. Further cross-examination included the following:
You didn’t think he needed all those interventions? (Nodded yes)

You don’t think it now? I just don’t think X is as bad as …time will tell.
1. Later the mother said as follows about the diagnosis that X had Moderate Learning Disability:
I still don’t think he’s moderate comparing him to his brother.
1. The mother’s counsel submitted that the court should find that the mother was not simply being wilfully blind about the extent of X’s disabilities but rather that her attitude was completely understandable in light of the fact that experts had at various times over the years given differing opinions about X’s issues.
2. That is not an answer to the criticism because X has now been diagnosed with a Moderate Intellectual Delay and despite that and despite the school records which highlight his extreme learning difficulties and the information in the reports of his speech pathologist, his occupational therapist, a psychologist and his school counsellor, the mother simply will not embrace the notion that he has a significant intellectual delay.
3. The father said that the mother was similarly in denial about F, G and B’s issues and failed to do reading and homework with them at home or organise specialist’s appointments for them.
4. The father only lived with the mother for a short period and I cannot make a finding about the extent to which the mother helped F, G and B at home but the fact that the mother did not mention in her affidavit that F and G had learning difficulties not dissimilar to some of X’s difficulties and that G had been diagnosed with a Moderate Intellectual Disability and had been in an IO class in primary school, combined with her constant references to the problem with X being with his behaviour not his functioning, causes me to be concerned about her capacity to assist X to be the best that he can be.
5. The mother’s counsel submitted that the court should also have regard to the fact that regardless of her beliefs about X’s diagnosis the mother was fully engaged in assisting him. She took him to his appointments with V & Associates and said in evidence that she worked on his speech pathology homework and read books to him and asked him questions about the story.
6. Cross-examination of the mother calls into question the extent to which she is doing work with him at home.
7. When she was asked about X’s knowledge of the alphabet at present she said she didn’t know. When asked why not she said that they did more counting than alphabet. She gave contradictory answers about his knowledge of numbers and then said that the school was working with him on the numbers 1 to 6.
8. In contrast during the family report interviews the mother said that X knew part of his alphabet but she was not sure what he could count to.
9. The mother is not a neglectful parent and I accept that she recognised when X was a baby that he was not developing as he should and that she expressed concerns about this to her GP in 2013. I accept that she recognised that X had an issue with his eyes and organised for him to have an operation. I accept that over the years she has attended appointments with specialists and therapists. I accept that she has taken X to most of his appointments with Ms U, has attended meetings at his school when asked to do so and made an appointment for him to see a paediatrician in 2019.
10. However there are things the mother has not done. She did not co-operate in X being enrolled in an early intervention program at Y Primary School. She did not co-operate with the genetic testing when it was first proposed. She put a stop to X attending Educare because it was the father who had arranged for appointments there. The material in the tender bundle supports a finding that the re-assessment of X in 2019 so that he was diagnosed as having a moderate intellectual delay which made him eligible for an IO class was due to the father taking active steps to obtain reports from the speech pathologist and other associated people working with X to support the new diagnosis. There is no evidence in the tender bundle to the mother ringing up and seeking those reports.
11. I am satisfied that I can have greater confidence that the father will be properly attuned to X’s needs in the future, will actively seek out all necessary supports, assessments and interventions him and will work with him at home.
12. Another relevant matter is that although it may be a by-product of his cognitive issues X does have behavioural issues. They are on display at school and sometimes during his appointments with professionals and the mother described him as having meltdowns.
13. However the father said that X did not display tantrum behaviour in his care and that he was able to talk to him and calm him down and there is considerable support in the subpoena material for a finding that X’s behaviour is calmer when he is with the father and that the father is better able to manage his behaviour.
14. In June 2016 Ms Q conducted a separate observation session with X and each parent. She noted that when X attended with the first session with the mother he absconded frequently from therapy room. During the second session with the father he remained in the room.
15. She said that X screamed incoherently when the mother was talking to the therapist and hit the therapist on arm saying no. She said that there was no evidence of this behaviour in second session.
16. She said that X kicked inside the sensory tent on first occasion and rejected the game. In the second session he followed instructions and played games as directed.
17. In November 2017 the father took X to see Dr CC at V & Associates. Dr CC noted that X’s behaviour was age appropriate with minimal disruption and that while some of his speech was difficult to understand he did attempt to communicate with her.^[18]
18. Dr CC said that during a separate session with the mother X’s behaviour was significantly different and he constantly disrupted conversation, screamed, climbed over his mother and repeatedly opened the office door. She said that toward the end of the session he threw a snake draft stopper at her and hit her on the back as he left the room. She noted that:
  Ms Joyners’ attempts to manage this behaviour were passive and generally ineffective.^[19]
19. The mother said that X had meltdowns which could be prolonged and she has said on many occasions that they arose from him not getting what he wanted when he wanted it. She showed limited recognition of the fact that his behavioural issues arise from frustration about his inability to communicate and process information.
20. I must consider 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.
21. Specific relevant issues about X have already been discussed at length.
22. I must consider any family violence involving the child or a member of the child’s family.
23. The mother alleged that the father threw a beer can at her when they were in a relationship and on another occasion grabbed her by the throat and said “You will do what I say.”
24. She alleged that the father would yell at her children and said to B that he needed “a good foot up the ass.”
25. She alleged that she was scared of the father after they separated and that he had followed her, sent her excessive amounts of messages and called her excessive amounts of times late at night. The mother said that she asked police about an ADVO but they would not take action as the father had not physically hurt her.
26. She also alleged that at changeover on 25 December 2018 the father grabbed F by the arm after X was reluctant to leave her care. The mother said that she did not see what happened because she was in the car but that F told her that the father had grabbed her by the arm and shoved her. The mother reported the matter to the police the next day and attached a copy of her police statement to her affidavit.
27. No statement from F was provided and F did not give evidence and I cannot be satisfied on the balance of probabilities that anything untoward happened to her. I also cannot be satisfied on the balance of probabilities that the mother’s allegations about the father are true. She was not a reliable witness and there was no independent evidence that her allegations were true. She was prone to make inaccurate statements for forensic advantage such as the assertion that the father was personally profiting from the NDIS funding or that the father was only seeking residence of X because Ms E could not have children. I cannot be satisfied on the balance of probabilities that the father perpetrated family violence either during or after his relationship with the mother.
28. The father said that X reported to him that B kicked and punched walls and broke items in the mother’s home. This would be a form of family violence but the evidence about B was not specific as to time and context and was based on something said by a child and I cannot find that B has perpetrated family violence in the mother’s home.
29. I must consider if a family violence order which applies, or has applied, to the child or a member of the child family–any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order and any other relevant matter.
30. There have never been any family violence orders between the parties or members of the child’s family.
31. The father separated from his former partner in 2006 or 2007 and at the time of separation his partner applied for an ADVO which the father consented to without admissions.
32. I cannot infer from this that the father was violent to his former partner. The father denied that there was any violence in that relationship. No subpoena material was produced at trial to assist me to make a finding about the issue and I cannot make suppositions in the complete absence of evidence.
33. I must consider the attitude to the child and the responsibilities of parenthood demonstrated by each of his parents.
34. In the mother’s case outline document her counsel submitted that the father had shown a poor attitude to the responsibilities of parenthood in that he had demonstrated a proprietorial attitude to X and a determination to be critical, condescending or dismissive of the mother whenever given the opportunity.
35. I do not accept that submission.
36. The father was at pains in his material to emphasise X’s issues but there was nothing to suggest that he was dramatizing the situation to obtain a forensic advantage.
37. There was also nothing to suggest that the father had unrealistic expectations about what could be achieved through therapy and regular assessments. He accepts his son as he is while at the same time wanting to give him every chance to conquer as many hurdles as possible.
38. The father had been active for years in ensuring that X has had assessments and interventions. I do not accept that he has deliberately set out to exclude the mother from involvement in assessments or tried to prevent her attending appointments. He has sometimes pushed through with assessments because he has been concerned that the mother left to her own devices would not do anything but she has always kept her advised about what was happening.
39. The mother’s attitude to the father’s involvement in appointments for X leaves a lot to be desired. The father said that on 29 March 2016 he sent the mother an SMS informing her that he was taking X to speech pathology every second Wednesday morning and that hopefully she could take him on the alternate weeks. The existing orders provided for X to spend time with the father each alternate Tuesday overnight to 9.30am on Wednesday. The mother’s response to the father’s SMS was “he has to back at 9.30 as the court orders no later.”
40. The mother’s solicitor later sent the father a letter telling him in no uncertain terms that he could only take X to appointments in his time with the child.
41. The fact that the mother made it as difficult as possible for the father to attend appointments with the psychologist was the reverse of child focussed in light of the opinion of Dr CC that both parents should be supported in learning techniques to manage his behaviour and adopting a consistent approach to any behavioural issues he displayed.
42. I must consider 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.
43. The mother’s counsel submitted that if an order was made for X to live with the father there was a risk that he would not comply with orders for X to spend time with the mother which could lead to further proceedings. There is no foundation for this submission.
44. An order that X live with the father is the order least likely to lead to further proceedings. The father is attuned to the child’s needs and assiduous in ensuring that he has appropriate assessments and interventions. If the child continues to live with the mother the father might well be tempted to bring further proceedings if he felt that the mother was not appropriately meeting X’s needs.
45. I must consider any other fact or circumstance which the court thinks is relevant but there are none.
Parental Responsibility
1. Pursuant to s. 61DA of the Family Law Act I am required to apply a presumption that it is in X’s best interests for his parents to have equal shared parental responsibility for him absent a finding that a parent or a person living with a parent has abused the child or committed acts of family violence.
2. The mother asserted that the father had perpetrated family violence but I cannot find that it is the case and the presumption applies. It can however be rebutted if the court finds that it would not be in X’s interests for it to apply.
3. The father agreed to an order for equal shared parental responsibility in 2014 and that was still the order he sought when he filed his application in 2017. By the time of trial however he sought an order for sole parental responsibility.
4. Notwithstanding her position that there had been family violence the mother sought an order for equal shared parental responsibility. In her affidavit she said that she and the father had poor communication and she was fearful of him and felt intimidated by him but knew he wanted to be actively involved in X’s life and at this stage was still seeking an order for equal shared parental responsibility.
5. It is very difficult to see how it would be in X’s best interests for the parents to continue to have equal shared parental responsibility, at least for issues to do with his education and health. There is abundant evidence that they are unable to co-operate in making decisions about him.
6. The mother arranged eye surgery for the child in 2013 without informing the father prior to doing so; changed the child’s pre-school in 2017 without consulting the father; did not enrol the child at the school provided for in the 2014 orders and did not consult with the father about enrolling him in a different primary school; and put a note in the communication book in early 2019 to the effect that she had arranged for X to be assessed at City DD Paediatric Centre and that they would send him a report.
7. The father has also sometimes acted unilaterally of the mother, for example keeping X after the time he was supposed to be dropped back to day care or school so that he could attend appointments with him.
8. He said and I accept that he did this out of frustration and I accept the submission of his counsel that there is no evidence of him seeking to exclude the mother from being involved in decision making about major issues concerning X but the father’s actions have added to the ongoing tension between the parents and if an order for equal shared parental responsibility is made there is every likelihood that each parent will continue to behave as they have in the past.
9. The parents are not on the same page about the nature and extent of X’s issues and if they continue to have equal shared parental responsibility there is a high risk that in the future they will either not agree so nothing will happen (as was the case with the early intervention class) or that the mother will act unilaterally of the father to X’s detriment.
10. The family report writer expressed concern about the parents’ inability to co-parent X and there is considerable force in the following passage in his report:
  It is likely that X’s experience of the parental separation has been one which in all likelihood has caused X some anxiety, given what appears to be intractable conflict between the parties and a lack of a cooperative approach to their parenting responsibilities. There is no doubt that given X’s learning disability that this dynamic has not assisted X with his psychosocial development.^[20]
11. Everything about this case suggests that it would be in X’s best interests for one parent to have sole parental responsibility for him at least as to issues to do with his health and education and that this parent should be the father who has been more proactive in seeking out assessments, therapies and supports for X and who is more switched on about his issues and accepts the opinion of professionals about the child’s diagnosis and needs.
The family report writer’s recommendations
1. 1. He said as follows:
    It is reasonable to suggest that the mother has not demonstrated, either historically or to the Family Consultant that she possesses significant insights into X’s needs and has not provided him with the consistency and stability required to address X’s individual needs. Clearly during the assessment, the father certainly is the parent who has presented as having the capacity to reflect upon X’s critical needs and significantly it has been Mr Harborne who has been responsible for initiating the necessitous interventions.
Given that the mother already had a child with what she described as being a moderate disability, one would have assumed that Ms Joyners would have been more focussed in recognising the interventions required with X.
The prognosis of the parents ever having a cooperative relationship which focusses upon X’s needs appears to be an unlikely scenario, whilst it remains evident that Mr Harborne and his long term partner Ms E are far more focused on ensuring that X’s day to day development and his associated behavioural issues are addressed in a far more attentive and comprehensive manner than what the mother has the capacity to implement. ^[21]
1. The family report writer recommended that X live with the father and spend time with the mother each alternate week from Friday to Monday and on one afternoon each week after school. During cross-examination he said that for a child such as X the solutions provided by school and therapists was only part of the equation. Living with the parent who was the most motivated and knowledgeable was the critical issue which would assist the child.
2. I place weight on this opinion. Mr C is a social worker and an experienced report writer and in any event much of this opinion is also just sound common sense.
Conclusion
1. The mother’s counsel submitted that weight should not be placed on the recommendations of the family report writer because they were based on an incorrect premise, namely that the father had initiated assessments and therapeutic interventions for X and that the mother had been passive in this regard.
2. He submitted that while the mother may not have had the same ready facility as the father to explain X’s problems and the appointments and interventions arranged for him when she spoke to the report writer but the list of X’s appointments and interventions since 2017 which he had prepared painted a very different picture about her involvement.^[22]
3. I do not accept that submission. The mother conceded that it was the father who organised the first assessment by Dr N and the evidence overwhelmingly supports a finding that it has been the father who has been proactive over the years in seeking out diagnoses and funding to assist X and ensuring that he received maximum assistance.
4. I accept that the mother has attended appointments and that she supported X receiving speech therapy and occupational therapy but some of her actions were obstructive rather than helpful, for example when the father tried to arrange for X to attend an early intervention class at Y Primary School; when the father wanted to be involved in X’s psychologists appointments; and when the father wanted X to have genetic testing.
5. There is a stark difference between the parents recognition of the extent of X’s cognitive issues. The mother has persistently claimed that X’s issues are more behavioural than anything else and it was clear from her answers in cross-examination that she did not fully accept the diagnosis that he had a Moderate Learning Disability.
6. Nobody can be certain what the future holds for X but he deserves to be given all the help and support available so that the best outcome which is achievable is achieved and it is the father who is most likely to ensure that occurs.
7. This supports the father’s proposal that X should live with him and the other aspect of the matter is that the parents cannot share parental responsibility and I could not make an order that gave the mother sole parental responsibility for X.
8. I could not be confident that she would always make good child focussed decisions about him and it is highly likely that she would use it to exclude the father as far as she possibly could from any involvement in X’s assessments and treatment and this would be an exceptionally poor outcome for X.
9. An order that X lives with the mother but that the father has sole parental responsibility for him would simply expose him to ongoing conflict between his parents and I concur with the submission by the Independent Children’s Lawyer that an order should be made for X to live with the father and for the father should have sole parental responsibility for him.
10. I have reflected on whether I should make a hybrid order so that the father has sole parental responsibility for issues to do with the child’s health and education and otherwise make an order for shared parental responsibility but this possibility was not raised by any of the parties and it could cause a problem if there is a dispute about exactly what is covered by the words “health” and “education” and I therefore do not propose to do this.
11. Living with the father will be a significant change for X but he has a good relationship with the father and the father is an empathic parent. I am satisfied that he has the capacity to help X adjust and that he will continue, as he has done throughout X’s life to date, to seek out the interventions and therapies which will give X the best change of a good outcome in his life whatever that may mean for X.
12. X will still be able to spend time regularly with his mother and his brother B and I do not accept that the father will attempt to undermine his relationship with his mother.
13. I intend to make orders for X to spend time with his mother as proposed by the Independent Children’s Lawyer notwithstanding my concern about whether the mother will be able to spend time with him each Tuesday afternoon. As the Solicitor Advocate for the Independent Children’s Lawyer pointed out in submissions it is consistent with the recommendation of the report writer and if the mother can attend the opportunity will be there.
14. The orders will also contain the usual provision about each parent being able to attend the child’s school.
I certify that the preceding two hundred and fifty one (251) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date: 12 March 2020

^[1] Rice & Asplund [1978] FamCA 84; (1979) FLC 90-725

^[2] Mother’s affidavit paragraph 68

^[3] Tender Bundle page 70

^[4] Tender Bundle pages 166-167 and Exhibit K, Aide Memoire prepared by the mother’s counsel

^[5] Tender Bundle page 5

^[6] Tender Bundle page 8

^[7] Mother’s affidavit paragraph 102.

^[8] Annexure I to mother’s trial affidavit

^[9] Father’s affidavit filed on 10 Mary 2019 paragraph 61

^[10] Father’s affidavit filed on 10 May 2019 paragraph 78

^[11] Father’s affidavit filed 10 May 2019 paragraph 22

^[12] Father’s affidavit filed on 10 May 2019 paragraph 73

^[13] Father’s affidavit filed on 10 May 2019 paragraph 74

^[14] Family Report paragraph 81

^[15] Tender Bundle page 258

^[16] Mother’s affidavit paragraph 125

^[17] Mother’s affidavit paragraph 166

^[18] Letter from Ms R dated 5 December 2017 Mother’s affidavit Annexure I

^[19] Letter from Ms R supra

^[20] Family Report paragraph 82

^[21] Family Report paragraph 84-86.

^[22] Exhibit

Final parenting orders were made in November 2014. The father has brought a fresh application and I need to bear in mind the following passage from Rice & Asplund:
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which the order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for, as counsel for the appellant submitted, change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that there is some changed circumstance which will justify such a serious step. Some new factor arising, or at any rate some factor which was not disclosed at the previous hearing which would have been material. These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require a court to consider afresh how the welfare of the children should best be served. These principles apply whether the original order was made by consent or after a contested hearing. The way they apply, and the factors which will justify the court in reviewing a custody order, will vary from case to case.^[1]The father relied on his affidavits filed on 10 May 2019 and 14 November 2019 and the affidavit of his partner Ms E filed on 30 May 2019.The father and mother met in 2010 when they were about 45 and 42 respectively and commenced cohabitation in 2010.The family report writer was of the opinion that the father was more likely to be able to provide X with the impetus for maximising his psychosocial development in the future. He also said that he was concerned about the ongoing poor relationship between the parents.

NOTE: This case has been published by the Court under a PSEUDONYM, rather than using the real names of the parties. Section 121 of the Family Law Act 1975 makes it an offence, except in very limited circumstances, to publish or distribute a report of a case or part of a case, including information contained in a Judgment, which identifies parties, related or associated persons, witnesses or others involved in the case. A breach of the section is a criminal offence. The section also sets out certain limited defences to criminal liability. An example is where the Court has expressly authorised the publication.

A printable version can be accessed from Austlii without pictures or advertisements here, which should be used if you wish to provide the case to the Court in your matter.

Change in residence of 7 yr old to Father who is better able to meet Child’s needs

Harborne & Joyners[2020] FCCA 540 (12 March 2020)

ORDERS

REASONS FOR JUDGMENT

Introduction

The Rule in Rice & Asplund

The evidence

Background

The parties’ circumstances and what their proposals would mean for X

X’s best interests

Parental Responsibility

The family report writer’s recommendations

Conclusion

Harborne & Joyners
[2020] FCCA 540 (12 March 2020)