Step-Dad gets time ordered with his Step-Child

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The Child was 11 years old.  The 49 yr old Mother and and 45 year old Step Father commenced a relationship in late 2010 when the child was 4 yrs old, and started living together in 2011.  They separated after approximately a 4 year relationship in October 2014.

After separation the Step Father only saw the Child about 4 times until mid January 2015, when Interim Orders were made by the Court on 4 February 2016 for supervised time once a fortnight. 

The Child had never met his biological Father, from whom the Mother separated during pregnancy after Domestic Violence, going to live in a shelter.

A Family Report was obtained and an Independent Children’s Lawyer was appointed. The Child was interviewed by the Family Consultant and expressed a wish to see his Step Dad.  Whilst what the Child said could be taken into account, it was not determinative as the Child was too young to have their wishes followed.  

The Mother sought an Order for no time at all with the Step Father. The Court did not accept the Mother’s allegations against the Step Father.

During the relationship the Step Dad had been quite involved with the daily care of the Child, as well as Doctor’s appointments and school. 

The Child had been diagnosed with ADHD, being on the autism spectrum, having low verbal IQ and a mild global developmental delay, including a severe speech delay. When the Child was talking about his Step Dad to others, he referred to him as ‘Dad’, doing so of his own accord.

The final Orders made mostly reflected the time the Step-Father asked for, which was supported by the Independent Children’s Lawyer.  The Step Father had asked for increased school holiday time, but the time ordered reflected the submissions of the Independent Children’s Lawyer.  

A standard range of Final Orders were made but a summary of the most noteworthy are:

  • The Mother have Sole Parental Responsibility ;
  • That Child spend time with the Step Father:
    • Each alternate Sunday from 9.00am to 5.00pm during school terms;
    • During the Christmas school holiday period, from 5.00pm on Boxing Day, 26 December for 3 nights until 5.00pm on 29 December;
    • During the other 3 school holiday periods from after school on the last day of the school term for 3 nights concluding at 5.00pm on the 4th day of that period;
  • The Mother was was restrained from enrolling the Child in an extra curricular activity on a Sunday unless the Step Father agreed in writing;
  • The Step Dad could get copies of school reports etc, but was otherwise to refrain from attending the school to see the Child; 
  • Within 7 days of the Orders, both parties were to enrol is a course, program or workshop run by Autism Spectrum Australia (“ASPRECT”)

The Mother was ordered to make the Child available to the Independent Children’s Lawyer and Family Consultant who were to explain the Final Orders to the Child   





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

Attard & Benton [2017] FCCA 2159 (13 September 2017)

Last Updated: 10 October 2017

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATTARD & BENTON

Catchwords:

FAMILY LAW – Applicant a former step-father seeking to spend time with child – mother opposing any time – child to live with mother and spend time with the Applicant – best interests of child.

Legislation:
Applicant:
MR ATTARD
Respondent:
MS BENTON
File Number:
PAC 534 of 2015
Judgment of:
Judge Newbrun
Hearing date:
5 May 2017
Date of Last Submission:
12 May 2017
Delivered at:
Parramatta
Delivered on:
13 September 2017

REPRESENTATION

Solicitors for the Applicant:
Coleman Greig Lawyers
Counsel for the Respondent:
Ms Conte-Mills
Solicitors for the Respondent:
Phillip A Wilkins & Associates
Counsel for the Independent Children’s Lawyer:
Mr Ladopoulos
Solicitors for the Independent Children’s Lawyer:
Legal Aid NSW Bankstown Family Law

ORDERS

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(1) All prior parenting orders are discharged.

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

(3) The child shall live with the mother.

(4) Unless otherwise agreed in writing between the Applicant and the mother, the child spend time with the Applicant as follows:

During School Term

(a) During school term, from 9:00am until 5:00pm each alternate Sunday, commencing on the first Sunday following the date of these Orders and recommencing on the first Sunday following the start of each school term;

During the School Holiday Periods at the end of Terms 1, 2 and 3

(b) During the school holiday periods at the end of Terms 1, 2 and 3 each year, from after school on the last day of the school term for a period of three (3) consecutive nights concluding at 5:00pm on the fourth (4th) day of that period;

During Holiday Periods at the end of Term 4

(c) during the school holiday period at the end of Term 4 each year, from 5:00pm on 26 December until 5:00 pm on 29 December; and

(d) for make-up time, as provided for in Order 5(c) and Order 6 below.

(5) That, if the child is not available to spend time with the Applicant in accordance with these Orders due to illness, then the mother shall:

    (a) notify the Applicant as soon as practicable that the child is unable to attend to spend time with the Applicant;<li “=””>(b) within 72 hours, provide to the Applicant a medical certificate from a registered medical practitioner indicating the nature of the child’s illness and including confirmation that in that medical practitioner’s opinion the child is/was medically unfit to attend to spend time with the Applicant at the time(s) provided for by these Orders; and<li “=””>(c) make the child available to spend make-up time with the Applicant, for an equivalent amount of time to that which has been missed, within the next four (4) weeks.

(6) That, in the event that the mother takes the child on a holiday or trip for any purpose, during the time that the child is otherwise meant to be spending with the Applicant, then the mother shall make the child available to spend make-up time with the Applicant, for an equivalent amount of time to that which has been missed, within the next four (4) weeks.

(7) That, for the purposes of Order 4 above, unless otherwise agreed in writing between the Applicant and the mother, changeover shall occur:

    (a) at the child’s school if at the end of a school day; or otherwise<li “=””>(b) at the McDonald’s Family Restaurant at (omitted).

Other Matters

(8) That the mother shall communicate with the child by telephone between 6.30pm and 7.00pm on the second night of each period when the child is spending 3 consecutive nights with the Applicant pursuant to Orders 4(b), 4(c), 4(d) above.

(9) That the mother shall be restrained from enrolling the child in any sporting or extracurricular activities or from scheduling any appointments or other activities on a Sunday unless otherwise agreed between the Applicant and the mother in writing.

(10) That, in relation to the child’s schooling:

    (a) these Orders authorise any school which the child attends from time to time to provide the Applicant (at the Applicant’s expense) with copies of all reports, circulars, notices and documents in relation to the child including copies of all school reports, reports on school progress and behavioural issues, school newsletters, school photograph order forms and as well as any and all information which may be sought from time to time by the Applicant in relation to the child.<li “=””>(b) that the Applicant otherwise refrain from attending upon the child’s school.

(11) That, should a medical emergency arise in relation to the child while the child is in the care of one party, then that party shall notify the other party as soon as practicable of the time and nature of such medical emergency, the name and address of any treating practitioners and/or hospital and the location of the child.

(12) That each party notify the other of their residential address, email address and mobile telephone number at all times and notify the other within 48 hours of any change to that residential address, email address or mobile telephone number.

(13) That each party be restrained from denigrating the other directly or in the presence of the child.

(14) That each party by restrained from physically disciplining the child, or allowing any third party to physically discipline the child whilst the child is in their care.

(15) That the Applicant and the mother shall within seven (7) days of the making of these Orders do all things necessary to contact the organisation known as Autism Spectrum Australia (“ASPECT”) and do all things required to make enquiries and to enrol in any course, program and/or workshop run by and as recommended by the staff of ASPECT and they shall do all things as requested and as directed by the staff of ASPECT in relation to their attendance and their participation in order to complete the course, program and/or workshop and they shall follow any other recommendations and referrals from the staff of ASPECT including ensuring the child attends upon the organisation if directed by the staff of ASPECT.

(16) That the mother make the child available to have these Orders explained to the child by the Independent Children’s Lawyer and the author of the Family Report prepared for these proceedings, Ms B at such time and place as is arranged by the Independent Children’s Lawyer in consultation with Ms B and the mother.

IT IS NOTED that publication of this judgment under the pseudonym Attard & Benton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT 

OF AUSTRALIA 

AT PARRAMATTA

PAC 534 of 2015

MR ATTARD

Applicant

And

MS BENTON

Respondent

REASONS FOR JUDGMENT

Introduction

  1. This was the final hearing of competing parenting proposals in relation to the child X born (omitted) 2006 (‘the child’).
  2. The Applicant is not a biological parent of the child. He contends that he was the child’s ex-stepfather (hereinafter referred to as the Applicant). The Respondent is the child’s biological mother. The Applicant was previously in a relationship with the mother. The parties began a relationship in about late 2010 and began cohabitation in about (omitted) 2011. The parties separated on a final basis in October 2014.
  3. Following the parties’ separation, the Applicant was able to see the child on about four occasions until about mid-January 2015. Following that time, the Applicant did not spend any time with the child until orders were made by this court on 4 February 2016 for supervised time to occur once every fortnight.
  4. The Applicant proposes orders that he spent time with the child from 9AM until 5PM Sunday, commencing the first Sunday following the date of these orders, and continuing each alternate week thereafter, and recommencing on the first Sunday following the start of the school term. The Independent Children’s Lawyer agrees with this proposed order.
  5. The Applicant also proposes orders that he spend time with the child during the short school holiday periods, from after school on the last day of the previous school term to 5PM the following Tuesday (for a period of four consecutive nights), commencing on the last day of school term 2, 2017 and continuing in short school holiday periods thereafter. The Independent Children’s Lawyer agrees with this proposed order but the period should be 3 consecutive nights.
  6. The Applicant proposes orders that he spent time with the child during the summer school holiday periods, from 5PM on 10 January to 5PM 16 January (for a period of six consecutive nights), commencing the summer school holidays of the 2017/2018 and continuing each year thereafter. The Independent Children’s Lawyer agrees with this proposed order but proposes that the period should be 3 consecutive nights.
  7. The Applicant also proposes other orders as set out in his Further Amended Initiating Application filed 13 April 2017. The Independent Children’s Lawyer agrees with proposed orders 5-10 inclusive.
  8. The Independent Children’s Lawyer’s proposed Minute of Order is dated 11 May 2017.
  9. It is common ground that the mother should retain sole parental responsibility for the child, and that the child should live with her.
  10. The mother seeks an order that the child spend no time with the Applicant.

Material relied upon

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  1. The Applicant relied on the following documents:
    1. His Further Amended Initiating Application filed 13 April 2017;
    2. His Affidavit filed 13 April 2017;
    1. His case outline.
  2. The mother relied on the following documents (see her case outline):
    1. Response to Initiating Application filed 9 March 2015;
    2. Notice of Risk filed 9 March 2015;
    1. Her Affidavit filed 13 April 2017;
    1. Affidavit of the mother’s daughter Ms C filed 9 March 2015 (hereinafter referred to as Ms C).
  3. The following documents were tendered and became exhibits in the proceedings:
    1. Exhibit A: Adult and Children’s Assessment and Therapy Report dated 18 April 2017; Recent Connecting Families Contact Report;
    2. Exhibit B: Sleeve 3, Applicant’s criminal history from NSW Police records;
    1. Exhibit C: Family Report of Ms B dated 22 September 2016; Child Inclusive Conference Memorandum to Court dated 11 December 2015; Child Dispute Conference Memorandum to Court dated 23 April 2015.

Evidence

  1. The Court found the Applicant to be a satisfactory witness. However the Court had concerns in relation to the mother’s evidence, including her oral evidence. She was not a satisfactory witness, and at times was evasive, often not answering a question directly, but retreating to a statement that she was defending the child’s safety. The Court on at least one occasion had to remind the mother of her obligation to answer the question directly.
  2. The mother’s evidence relating to Mr O was unsatisfactory; in her Affidavit filed 13 April 2017 she stated that she was currently in a relationship with this man, however in cross examination she stated that she had separated from him in January 2017 and was just friends with him, and her explanation for the inconsistency was unpersuasive. On occasion the mother, when directed to a paragraph of her Affidavit, strayed from her Affidavit evidence and responded with fresh evidence.
  3. Where the parties’ evidence is in conflict the Court prefers the Applicant’s evidence.
  4. The Applicant was born in (country omitted) on (omitted) 1972. He is aged 45 years.
  5. The mother was born in (country omitted) on (omitted) 1968. She is aged 49 years.
  6. The child was born in Australia on (omitted) 2006.
  7. The child’s biological father is Mr H. The mother is not aware of the father’s whereabouts but understands that he lives in Sydney. The child has never met his biological father. The father was not named as the father on the child’s NSW birth certificate. The mother states that she suffered family violence from the biological father when she was pregnant with the child. An Apprehended Violence Order was taken out for her protection. The mother and her daughter Ms C were placed in a refuge for some time. Since this time the mother has never seen the biological father again.
  8. The mother has, besides the child, a son Mr G, now aged 32 years, and her daughter Ms C, now aged 29 years, with these latter children being from a previous relationship of the mother.
  9. The mother has been the child’s primary carer from birth. The mother’s occupation is child care worker. The Applicant’s occupation is process worker.
  10. The child has a loving and caring relationship with his family that now live in (country omitted). In particular the child has a positive relationship with the maternal grandmother. The child also has contact with his elder brother Mr G. The child and the mother visited the extended family in (country omitted) from about six weeks during the 2014 Christmas period.
  11. The parties commenced cohabitation in about (omitted) 2011. The mother commenced working full time in May 2011.
  12. The parties separated from about November 2012 to April 2013. They also separated from August 2013 to September 2013.
  13. During the first three months of the parties’ relationship, the Applicant would spend about three days a week, including overnight time, with the child at the respondent’s home.
  14. During the time that the Applicant would spend with the child, he would play with him, talk to him about his day, eat meals with him and put him to bed.
  15. In the early stages of the parties’ relationship, the mother did not have a car, and therefore either the Applicant or Ms C would take the child to and from preschool.
  16. In January 2011 the parties began cohabiting in a two-bedroom unit at (omitted). The child and Ms C also lived with the parties at this time. The parties shared a bedroom and the child had a separate bed in that bedroom. Occasionally the child would climb into the parties’ bed.
  17. After the child began school, at one time the parties would pick up the child together around 3PM from school. After the parties’ family meal in the evening, the Applicant would spend one-on-one time with the child, whether on the computer, watching TV or playing in the park together.
  18. Later in 2011 and to the end of the relationship in about October 2014, the Applicant would pick up the child from the local public school at 3PM and take him home. When the mother was at work, the Applicant would prepare a meal for the child, ensured that he ate and was showered, assisted him with his homework and watched TV. During this period, Ms C also assisted with the child’s care from time to time when she was available.
  19. The Applicant was also responsible for arranging doctor’s appointments for the child, communicating with the child’s teachers, attending school meetings, taking the child to and from some lessons, and arranging for the child to attend (hobby omitted) classes. The Applicant would also take the child on Sundays to watch his (hobby omitted) games.
  20. The Applicant, during the parties’ cohabitation, used his wages to pay for rent and utilities, as well as purchasing groceries, and clothing and other necessities for the child and himself. He also readily paid for the child’s extracurricular activities and purchased gifts for the child. The Applicant did not pay formal child support to the mother following the parties ceasing cohabitation. The Applicant, since he began spending supervised time with the child in February 2016, also paid for the child’s food when he was in his care and purchased gifts for him on special occasions.
  21. The Applicant assisted the child with his homework and reading, he also initiated a care plan through the child’s GP, and the child’s referral to a speech therapist in relation to speech difficulties. The Applicant had taken the child to see psychologists and speech therapists, in order to help the child manage his ADHD and improve his speech. The Applicant spoke to the child’s school teachers in relation to improving the child’s reading and writing skills.
  22. The Applicant disciplined the child following the child’s adverse behaviour. The Applicant smacked the child on his bottom on at least several occasions, however this was reserved for particularly bad behaviour from the child.
  23. On 19 March 2012, the child was seen, together with the mother, by a consultant paediatrician. This was a behavioural assessment of the child. The mother’s concerns primarily related to the child’s language and behaviour at school. At this time the child was in year 1. The child’s communication book from school reflected that the child distracts others, was very disruptive, and often was fighting with other students. The mother found that the child’s behaviour was more manageable at home, “although this is primarily due to discipline from (the Applicant).” At the consultation, the paediatrician found the child to be quite hyperactive, fidgeting and interrupting the consultation. The child was observed still to have a severe speech delay. It was noted that there had been a previous diagnosis of mild global developmental delay. The paediatrician recommended continuing speech therapy and child psychologist involvement.
  24. In May 2012, the parties, Ms C and the child moved to a property at (omitted).
  25. During the November 2012 to April 2013 separation, the Applicant rented premises for about 6 months. During the August 2013 to October 2013 separation, the Applicant moved and lived with a friend of his.
  26. At the time of separation in October 2014, the parties had an argument. The Applicant, having looked at the mother’s phone, perceived that the mother had been communicating with another man. There was a verbal argument and the Applicant threw the mother’s phone on the floor, resulting in it breaking. Ms C and the mother were present at this time.
  27. On one occasion during the relationship, the child was asleep in his bed. The mother left the unit to do some shopping. Shortly afterwards, the Applicant heard the child coughing, and went to check on him. He then left his room after he noticed no problem, and noticed that the mother had come back into the unit. The mother confronted the Applicant saying, “what are you doing in X’s room?”, to which the Applicant responded, “I heard coughing, he is fine.” The Applicant had previously checked on the child when the mother had been in the home.
  28. The Applicant showered naked with the child on two occasions, both in about 2013 when the child was 7 years of age. The reasoning for this was that the mother had approached the Applicant stating that she did not think that the child knew how to clean his genitalia properly. The Applicant had told the mother that he would show the child how to make sure he was fully clean. During these showering occasions the mother was in the house.
  29. On another occasion in about January 2013, when the parties were living in (omitted), the Applicant swam with the child in a swimming pool. The applicant was playing with the child in the pool and the Applicant’s swimming suit came off. The Applicant then took off his swimming suit and swam to the other end of the pool to retrieve his towel before getting out of the pool and wrapping the towel around him. The mother was present during this incident.
  30. In Christmas of 2012, the Applicant bought the child an Xbox gaming console, which the child had been asking for since June 2012.
  31. When the child spoke about the Applicant to anyone outside the family, he would refer to the Applicant as “dad” of his own accord.
  32. When the parties were living together, the child always gave the Applicant a Father’s Day present. On the cards or drawings that were associated with those presents, the child would refer to the Applicant as “dad”.
  33. The parties separated for about two months in 2013. During this time the Applicant continued to pick the child up from school and take him home to feed and care for him until the mother returned from work in the evening.
  34. On 16 June 2014, the above paediatrician reassessed the child. It was noted the child only had mild receptive language delay. The paediatrician had reports from the child’s schoolteacher indicating the child was a polite and happy student who enjoyed being at school. He generally interacted effectively with his peers in the classroom. He had a small group of friends who he played with in the playground. In the classroom the main issue was the child’s behaviour and interactions with other students. The paediatrician reported that much of these behaviours related to the child’s ADHD and his low verbal IQ. It was noted that the child’s family had started tutoring to try to assist him. The paediatrician discussed options for the child. Stimulant medication for ADHD was discussed as an option for the child. The doctor was to review the child in term 3 in 2014.
  35. Shortly after the parties’ separation in October 2014, the Applicant went to see the child after his tutoring class. The child was with Ms C. When the child saw the Applicant from a distance he immediately ran into the Applicant’s arms and said that he had missed him and loved him. On 16 November 2014, the Applicant went to the mother’s home to see the child. The child came out of the home and ran into the arms of the Applicant again telling him that he had missed him. The Applicant hugged the child who was crying. The child brought out a card that he had drawn of the family, which showed the Applicant standing next to the child, the mother and Ms C. The child had written on one side of the card that he wanted the Applicant to come back and he missed the Applicant.
  36. On 20 November 2014, the Applicant saw the child at his school and gave him a Christmas present. On 9 January 2015, the Applicant went to the mother’s home to see the child. The child answered the door and hugged and kissed the Applicant telling him that he had missed him. On (omitted) 2015, the Applicant attended the mother’s home as it was the child’s birthday. At the front door, the child gave the Applicant a hug and kiss and told him that he had missed him. The Applicant asked the child what he would like as a present for his birthday and the Applicant purchased the present for the child and gave it to him.
  37. Apart from the above occasions, following the parties’ separation, that usually occurred for a period of not more than about 30 minutes, the Applicant had no time with the child between final separation and 4 February 2016.
  38. The Applicant’s supervised time with the child was through Connecting Families, which commenced on 28 February 2016 and initially was each alternate week. However this supervised time was reduced to every month from the second half of December 2016 due to financial constraints operating upon the Applicant.
  39. The contact reports from Connecting Families indicate that the child’s time with the Applicant has been positive, with the child being happy and carefree to be around the Applicant. The Applicant was child focused during these occasions. There were occasionally mutual exchanges of physical affection at the commencement and conclusion of the child’s time with the Applicant. There were no concerns expressed by the Connecting Family supervisor.
  40. The Applicant resides at (omitted) in an apartment. He is in stable full-time employment and enjoys good health. He plays (hobby omitted) on a weekly basis. He is currently in a relationship with a woman, named Ms N, with whom he has been in a relationship for more than a year. They do not live together, however she is often at the Applicant’s house. Ms N has not met the child yet. The Applicant believes it would be reasonable if the mother met Ms N if that gave the mother confidence. The Applicant proposes, if the Court makes an order in his favour for unsupervised time with the child, that for the first two Sundays spending time with the child, Ms N would not be present; the Applicant proposes to prepare the child for an introduction to her.
  41. He is currently spending time with the child once a month, supervised by Connecting Families.
  42. The Applicant would like to continue the relationship between himself and the child.
  43. The Applicant completed the triple P positive parenting program (level 2 seminar) in early 2016.
  44. The Applicant believes that the mother is a good mother to the child.
  45. The Applicant is conscious of not overstepping with regards to what presence he might have in the child’s life, given that he is no longer in a relationship with the mother.
  46. The Applicant is conscious that as the child gets older, he may want to spend time with other persons, besides himself.
  47. The Applicant is content to reschedule any prospective time with the child with the mother if the mother proposed to take the child on holidays.
  48. The Applicant is conscious of avoiding conflict with the mother in the future.
  49. The mother does not want the Applicant to have any relationship with the child. She alleges that she has observed the Applicant to be a violent man who cannot control his emotions when things do not go his way. She alleges that he has assaulted her and the child in the past, and she alleged that she is concerned about what things he may do to the child when she is not present. The Court does not accept these allegations.
  50. The mother has some form of relationship with a man called Mr O. It is unclear whether she is in a relationship with him or just friends. She first met him in about 2005. This man visits the mother’s home regularly and spends time with the mother’s family.
  51. A letter from the child’s classroom teachers of 2 December 2015 refers, inter alia, to the child’s positive progress in 2015 at school. It is reported that the child now engages in his learning and teachers have seen a transformation in his overall demeanour and attitude. The child is presently in Year 7 at (omitted) school.
  52. The child currently attends (hobby omitted) on Saturdays, (hobby omitted) on Mondays, speech therapy fortnightly, tutoring on Thursdays, (hobby omitted) on Thursdays and attends upon a psychologist once a month.
  53. The child and the mother are presently residing with Ms C and her partner Mr D with whom the child has a good relationship.
  54. The mother is prepared if necessary to communicate with the Applicant by text message or through emails, if the Court was to order the child to spend time with the Applicant.
  55. The mother has not considered setting extracurricular activities for the child on a Sunday, in the context of the child potentially spending time with the Applicant on a Sunday.
  56. The mother stated that she would have no problems with make-up time, in the event that the Court ordered the child spend time with the Applicant. In such event, the mother stated that if the child was sick she could obtain a medical certificate. The mother further stated, in such event, that if changeover was at a McDonald’s restaurant, she would make sure that she had cameras in front of her.
  57. The mother’s daughter Ms C is aged 29 years. She migrated from (country omitted) to Australia with the mother in March 2005. She has a close relationship with the child. From December 2011 to April 2012 she did not live with the Applicant, the mother and the child. She lived with them during the periods from February 2011 to December 2011, and from May 2012 to October 2014. She left the mother’s home because of differences that she had with the Applicant.
  58. Ms C, although opposed to the child spending time with the Applicant, in the event that the Court ordered that the child spend time with the Applicant, would be supportive of facilitating such Court order. Ms C was confident that the mother could hide her feelings about the Applicant from the child in the event that the Court ordered the child spend time with him.

Exhibits

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  1. Exhibit A is a confidential ADI-R report (Autism Diagnostic Interview – Revised) dated 18 April 2017 in respect of the child. The report states that the child was referred for assessment with regards to the possibility of being him on the autism spectrum. The assessment was carried out on 8 April 2017.
  2. The psychologist stated that the child’s behaviours, following her assessment of his current behaviours and developmental history provided by the mother, are very similar to those of children moderately placed on the autism spectrum. According to the DSM 5, the results of the assessment within the Autism Diagnostic Interview-Revised, also placed the child on the spectrum. Inter alia, the psychologist advised the mother to see a paediatrician as soon as possible to obtain a formal diagnosis and to discuss how best to support the child. She stated that the results of the assessment will need to be shared with the child’s school so that he is supported in the best way possible.
  3. Exhibit A also contains the latest written report from Connecting Families dated 26 March 2017, and which, inter alia, indicates that the child and the Applicant greeted each other with a smile and a hug. The child and the Applicant were happy to see each other. At one point the child lay down on the couch in the Applicant’s lap. No concerns were expressed by the supervisor.
  4. Exhibit B is the Applicant’s criminal record which refers to a conviction for assault occasioning actual bodily harm on 2 November 2007. The sentence was a Section 9 bond with restraining orders in relation to Ms A.
  5. Exhibit C is the Family Report of Ms B dated 22 September 2016, the Child Inclusive Conference Memorandum to Court dated 11 December 2015 and the Child Dispute Conference Memorandum to Court dated 23 April 2015.

Child Dispute Conference memorandum of 11 December 2015

  1. Ms B conducted this conference. It was noted in the memorandum that the Applicant and the mother had told her that the child was aware that the Applicant was not his biological father.
  2. Both parties reported that they were unable to communicate about the child and his needs.
  3. The mother conceded to the Family Consultant that the child had looked upon the Applicant as a father figure in the past and that “he loved (the applicant)”, but she claimed that the child did not ask for the Applicant now.

Child Inclusive Conference Memorandum of 11 December 2015

  1. The mother raised with the Family Consultant, Ms B, her concerns that the Applicant may have sexually abused the child. She referred to an occasion when the Applicant and the child were swimming naked on one occasion in her swimming pool; the Applicant had showered with the child; and an occasion when the Applicant had come out of the child’s room when the child was asleep and the Applicant had claimed to the mother that he was merely checking on the child, and that the mother could see no reason why this should occur. The Family Consultant asked the mother why she had not raised these allegations during the Child Dispute Conference previously, with the mother declaring, “because I am scared to say the word.” The mother stated, “I am a mother and I feel something is not good. I have no proof. I didn’t see nothing but I feel it.”
  2. The Family Consultant observed that the parties had no capacity to work cooperatively or to communicate in any way.
  3. The child was interviewed. He was aged at this time 9 years and 10 months. He presented as mildly developmentally delayed, particularly with regards to his speech, but he appeared to understand all the questions put to him and the implication of his responses.
  4. The Family Consultant observed that the child’s demeanour during the course of this interview gave cause for concern. The child presented with a somewhat flat affect and was observed, when speaking about his sadness regarding no longer spending time with the Applicant, to pick at a sore on his arm until it bled. A short time later the interview was ceased as the child wish to stop talking.
  5. Nevertheless, the child had told the Family Consultant that the Applicant, whom he referred to as Mr Attard, was mostly kind. When the child was asked about spending time with the Applicant, the child stated that “he be nice” and “have fun with me.” He stated that the Applicant “kept on smacking me” and was “always telling me off.” The child said, “Then, I started being good. he didn’t smack me any more.” The child said that he thought the Applicant may smack him again in the future and was a little scared about this but still wanted to see him.
  6. The child stated to the Family Consultant that he felt “sad” that the mother did not think he should spend time with the Applicant any more. He initially said it would be too hard for him to spend time with the Applicant because it would upset the mother, but he also said that he wanted to see the Applicant and that he wanted the mother to know that this was the case. When asked if he would want to see the Applicant if his mother could accept it, the child indicated that he would like to. When asked how frequently he wanted to see the Applicant, he stated, “once a week.” The child thought it would be a good idea to use a Contact Centre for changeovers so that the mother did not come into contact with the Applicant because she did not want to see him.
  7. The Applicant told the Family Consultant that he would be willing to commence spending time with the child at a Contact Centre should this be required. He said he was agreeable to an order that he would not use physical discipline on the child. He declared that he loved the child like a son and said that he had undertaken a Working With Children Check to be able to volunteer at the child’s school just to be able to spend time with him. The Family Consultant spoke with the Applicant about the importance of staying in role and not overstepping (and potentially fuelling conflict) with regards to what presence he might have in the child’s life, given that he was no longer in a relationship with the mother.
  8. The Family Consultant stated that it was clear that the Applicant was a psychological parent for the child and that the child was distressed by not spending time with him. (In her oral evidence the Family Consultant stated that a psychological parent is somebody who when they have lived with the child for some time the child comes to see that person as a parent-like figure both emotionally and, also, in terms of taking direction from that person.)
  9. The Family Consultant stated that irrespective of whether spending time with the Applicant posed an unacceptable risk of harm or was inappropriate now that the Applicant was no longer in a relationship with the mother, the mother presented as lacking in insight and empathy regarding any feelings of sadness or grief that the child may hold regarding the severing of his contact with the Applicant. She stated that given the child’s presentation, concerns are held regarding the level of emotional support the child is currently obtaining from the mother. She recommended that it be ordered that the mother take the child to counselling.

Family Report

  1. The Family Report is dated 22 September 2016. The author is Ms B. Her interviews with the mother, her daughter Ms C, the Applicant, and the child took place on 16 August 2016.
  2. The Family Consultant stated that the child spends time with the Applicant each alternate Sunday, from 2PM to 4PM, supervised by Connecting Families.
  3. The Family Consultant stated that at interview, the mother stated that she was seeking that the child spend time with the Applicant, supervised, for one day each fortnight. (The Court interpolates here that at trial, the mother was seeking a final parenting order that the child spend no time with the Applicant).
  4. The Applicant told the Family Consultant, inter alia, that the child would benefit from spending alternate weekends with him, stating that this is because to the child he was the psychological father. He stated that he had been in the child’s life since he was four years of age and that he needed a male figure he could identify with as a father.
  5. The Applicant told the Family Consultant he showered with the child on two occasions, to show him how to clean his genitals properly, after the mother had indicated that she did not know how to explain this to the child. The mother had been aware that this was going to occur.
  6. The Applicant stated that the swimming pool incident had occurred because his swimming costume had come off. He said he had immediately gone to change into a better fitting swimming costume before re-joining the child in the pool. He claimed that the mother had been at home at the time when this had occurred.
  7. The Family Consultant stated that the mother presented as hostile towards the Applicant but less so than she had during the Child Dispute Conference and Child Inclusive Conference.
  8. The mother told the Family Consultant that she was happy for the child to spend time with the Applicant at present because it is supervised, but that she is concerned about what might happen if the Applicant was to spend unsupervised time with him. She indicated that she did not understand the Applicant’s desire to maintain a relationship with the child and stated that he appeared to have an obsession with the child which she feared was not normal.
  9. The mother stated that she was concerned that the Applicant may be seeking to sexually abuse the child because the Applicant had showered and swum naked with the child in the past, which she stated was not normal. She conceded to the Family Consultant that she had not seen anything of a specifically sexual nature on these occasions, but stated she had been shocked by this at the time and had immediately raised her concerns about this with the Applicant.
  10. The mother stated that her previous concerns that the Applicant had used excessive physical discipline on the child had reduced since the Court had ordered that no one was to use physical discipline on the child.
  11. The mother stated to the Family Consultant that as long as the child was safe, she was agreeable to him spending one day per fortnight with the Applicant, but she did not believe that the child would benefit from overnight time with him. (Again, the Court notes the mother sought a final parenting order that the child spend no time with the Applicant at the trial).
  12. The mother stated to the Family Consultant that, while she thinks the child will ultimately derive little benefit from spending time with the Applicant in the long term, she recognised that the child enjoyed spending time with him, and she said she did not want to be selfish in denying the child this opportunity, merely because she did not like or respect the Applicant.
  13. The mother reported to the Family Consultant that the child enjoys his time with the Applicant and wanted to go. She likened the child’s demeanour regarding the Applicant as, “it’s like he goes to see a friend.” The mother stated that the child had a tendency to get attached to people who were nice to him, and she acknowledged the possibility that he may be seeking a male role model.
  14. The mother stated that, while she still feels upset when she thinks about the Applicant, in the past she could not separate her own feelings about him from the child’s.
  15. The mother stated that the child was now considered to be only one year behind his peers. She reported that the child continues to need help with his expressive language, and continues to attend fortnightly speech therapy for this purpose.
  16. The mother indicated that she was fearful that the Applicant would override her decision and purchase a telephone for the child.
  17. The mother stated that the child had threatened to run away a few times, and she admitted that she feared that, by spending time with the Applicant, the child may eventually decide that he preferred to live with the Applicant.
  18. The mother stated that she was concerned that the Applicant would cease spending time with the child if he re-partnered. She stated that if the Applicant wished to be involved with the child he must remain a consistent presence. To that end, the mother stated that if the Applicant re-partnered, she agreed to the child coming into contact with this person. (Again, the Court notes the mother’s final orders sought at the trial).
  19. The mother’s daughter, Ms C, was interviewed by the Family Consultant. She stated that she did not believe the Applicant was a good influence on the child. She declared that she believed the Applicant was not a good role model for the child. In this context she stated that the Applicant had hit the child on several occasions. She stated that the Applicant was a dominating person who wanted to control what the child did. She stated that she had never witnessed the Applicant hit the child.
  20. Ms C stated to the Family Consultant that the child enjoyed spending time with the Applicant but maintained that the child saw the Applicant purely as a friend and could just as easily spend the time playing with another friend.
  21. Ms C told the Family Consultant that she had not got along particularly well with the Applicant, and that the Applicant would accuse her of living off the mother, despite this being a matter between her and the mother.
  22. The child was interviewed by the Family Consultant, being then aged 10 years, 7 months. He presented as mildly delayed in his speech, and was observed to give short answers, with limited information, to the questions put to him, in comparison to other children of his age and stage of development.
  23. The child noted to the Family Consultant that the Applicant and the mother were not friends and stated that the mother did not want him to be friends with the Applicant either. The child stated that he did not think that the mother would change her mind about this. When the Family Consultant put to the child that the mother had acknowledged that he had a good time with the Applicant, the child was observed to smile and he looked pleased.
  24. The child told the Family Consultant that he had been scared of the Applicant in the past but that this was no longer the case. He stated that both the Applicant and the mother had ceased smacking him and the child indicated that he was aware that there was a Court order restraining them from doing so.
  25. The child told the Family Consultant that he wanted to spend time with the Applicant, who he saw as like a dad and a friend. He stated that he would like to spend overnight time with the Applicant, but indicated that he was concerned that, when the mother learnt of his desire to do so, she would get kind of angry. The child spoke about how the mother had initially been worried when he had commenced spending supervised time with the Applicant, and that she had cried on one occasion, although this no longer occurred.
  26. The Family Consultant discussed various options regarding overnight time with the child. The child stated that although he would enjoy the Applicant’s proposal of a three night block per fortnight, he did not think that the mother would be able to tolerate this as much as if it was one night per fortnight; thus, he was of the view that he should spend from Saturday morning to Sunday afternoon on each alternate weekend with the Applicant.
  27. The child was observed with the mother and Ms C with the child being comfortable with them and appearing to enjoy his time with them.
  28. The Family Consultant observed the child meeting the Applicant and hugging him tightly and they engaged in playful tussling.
  29. The child presented as quietly assertive with the Applicant, putting forward his preferences. The child appeared comfortable with the Applicant throughout the observation session and to enjoy his time with him in the playroom.
  30. Under the heading “Evaluation”, the Family Consultant stated that the child’s presentation appeared consistent with his diagnosis of ADHD, and mild learning difficulties. She stated that given these factors, and the child’s young age, the Court could not place significant weight on the child’s stated wishes and views with regards to his care arrangements.
  31. The child impressed as somewhat fearful of the mother’s reactions with regard to his positive view of the Applicant. The child appeared to have a good relationship with the mother.
  32. The Family Consultant stated that the child appeared to enjoy a good relationship with the Applicant and expressed a strong desire to spend time, including overnight time, with him.
  33. The Family Consultant stated that if the Court determined that the Applicant did not pose an unacceptable risk of harm to the child, then the child could spend unsupervised time with him.
  34. The Family Consultant stated that the mother presented as having made some attitudinal shifts with regards to her capacity to separate the child’s feelings and views about the Applicant from her own and that this was positive. However the mother continued to present as having significant difficulties with regards to the notion that the Applicant might be considered as if he were a true parent to the child. The mother presented as suspicious as to why the Applicant would wish to take up such a role. The Family Consultant stated that it appeared unlikely that the mother would make any further significant attitudinal shifts than what she had already made.
  35. The Applicant presented to the Family Consultant as desirous of maintaining a relationship with the child. He had presented to the Family Consultant as a highly assertive person who appeared somewhat more controlling that he had previously presented to her. The Applicant, the Family Consultant stated, demonstrated little understanding of the mother’s perspective about having to parent with someone who was not a biological parent, which would likely contribute to ongoing conflict between them.
  36. The Family Consultant noted that the child was aware that the Applicant was not his biological applicant, and therefore did not need to spend time with him for identity formation related to his paternal family.
  37. The Family Consultant stated that the child’s positive relationship with the Applicant did offer the child, however, the opportunity for interaction with a male role model. It also offered the child the ongoing experience of having an adult, with whom he has a warm bond and a relationship history, continuing to show interest in his well-being and in spending enjoyable time with him. It was assessed by the Family Consultant that, as long as the Applicant did not pose an unacceptable risk of harm to the child, the child would benefit from spending regular time with him.
  38. The Family Consultant stated that it appeared likely that the child would be exposed to ongoing conflict between the mother and the Applicant, by reason of it being unlikely that there would be an improvement in the parties’ capacity to communicate and cooperate regarding the child’s relationships and needs. Therefore, in determining the manner in which the child could spend time with the Applicant, according to the Family Consultant the benefit of such time should be balanced with the reality of the exposure to the conflict that the child would face.
  39. The Family Consultant stated that the mother would likely find it galling if the Applicant was to become so involved in the child’s life that the child spent alternate weekends with him, and if the Applicant became involved in the child’s school and extracurricular activities, and this would likely negatively impact on the mother’s interactions with the child.
  40. The Family Consultant stated that the mother appeared to be able to tolerate that the child would spend one full day per fortnight with the Applicant and the Family Consultant’s opinion was that the mother would likely find this minimally emotionally intrusive into her household regime (such opinion having been clarified and referred to by the Family Consultant, in this context, in her oral evidence at the trial). It was therefore recommended by the Family Consultant that the child spend time with the Applicant alternate Sundays from 9AM to 5PM.
  41. The Family Consultant stated that given the child’s strong desire to spend overnight time with the Applicant, it was recommended that the child spend school holiday time with him in accordance with the Applicant’s proposal of a four night block in the shorter school holidays, and a six night block in the summer school holidays, at a time to be determined by the Court. Although the mother was opposed to this, and would likely struggle with this, the Family Consultant stated that this school holiday time could be viewed as a treat for the child, and thus it may not be experienced by the mother as intrusive as alternate weekends would be.
  42. The Family Consultant stated that it would likely unduly expose the child to conflict if the Applicant was to become involved in any way in his schooling, and it was therefore recommended that the Applicant be restrained from attending upon the child’s school. She stated that the Applicant could be provided with copies of the child’s school reports and the opportunity to purchase school photos directly from the school, and it would likely assist if orders were made to facilitate this.
  43. The Family Consultant’s final recommendations were that, if the Court found that the Applicant did not pose an unacceptable risk of harm to the child, that the child spend time with him each alternate Sunday from 9AM to 5PM, as well as for a four night block in the shorter school holidays, and a six night block in the summer school holidays. She recommended that the Applicant be restrained from attending upon the child’s school, but that he be provided with the child’s school reports, and the opportunity to purchase school photos, through the school.

Cross examination of the Family Consultant

  1. The Family Consultant stated that, in relation to her recommendations in the Family Report, it was important that the mother be able to tolerate or comply with the regime, where the parties will communicate at the most minimum level and do not need to come into contact.
  2. As to changeover, the Family Consultant stated that the parties might feel psychologically more comfortable at a place where they believe that there is good quality CCTV, and that is very busy, such as at a McDonald’s restaurant. The child can get out of one car and get into another car without needing to have the people to have contact. If the parties can commit to minimal interaction at such changeovers then it could work.
  3. The Family Consultant stated that with changeovers at school, the Applicant might be tempted to enter the school, which might lead to conflict, so a restraining order in that context would be appropriate.
  4. The Family Consultant was of the view that should the Court order daytime “time” to be spent between the child and the Applicant, there was no need for telephone communication with the child, except in an emergency. Two telephone calls during the recommended holiday periods would be appropriate.
  5. The Family Consultant stated that there is a positive relationship between the Applicant and the child, and there is a strong bond between them.
  6. The Family Consultant was asked what risk might be posed to the child if the Court ordered no time between the child and the Applicant. She stated that there is grief in losing someone who is really important to you, who has played a role in your development, and who you have a great affection for. And to not be allowed to see that person and continue that relationship is like a loss – a significant loss.
  7. The Family Consultant stated that, in relation to the Applicant’s new partner, that the child should be prepared to meet such person and be slowly introduced. During any unsupervised time between the child and the Applicant, initial visits should be just between the child and the Applicant.
  8. The Family Consultant’s perception, having met the family, was that if the time commenced and the Applicant remains “in role” as a stepfather-like figure but recognises he is out of decision-making, he just spends quality time with the child and sends him back, that goes well, there is no inappropriate discipline, that the mother and sister would, perhaps, although they might hold negative views and continue to hold them, calm down a little. But it would rely on the Applicant remaining “in role” (maintaining an appropriate role in the child’s life that doesn’t overstep what the mother thinks the Applicant should be doing).
  9. The Family Consultant stated that if there is no acceptable risk of harm, the child should benefit from some time with the Applicant even if the mother finds that difficult. If the Court determines that the parties are able to conduct themselves in a civil manner, changeover at a Contact Centre may not be required. If the parties can do changeovers at a McDonald’s restaurant with clear orders in place about how they are to conduct themselves, and minimise their direct contact, then a Contact Centre may not be needed.
  10. The Family Consultant stated that her impression overall of the mother was that her primary concern was about her perception that the Applicant was trying to “intrude in her life emotionally, continue to control her, and that part of that was the way he had been involved in X’s life with regards, perhaps, disciplining him, disagreements they had had in the past about how his behaviour should be managed, and that she sees his involvement as a continuation of trying to take over her role and become, you know, reinvolved in her life.” She stated that by the time of the family report interview there was less concern raised by the mother about the allegations of sexual grooming for sexual abuse. She stated that there was more of a focus by the mother of inappropriate chastisement but also the mother’s confusion about why the Applicant would wish to be involved in their lives again and in the child’s life.
  11. The Family Consultant stated that the mother might better be able to cope with the child spending 3 nights in the school holidays as opposed to some greater period. She stated that the child would like to spend overnight time with the Applicant.
  12. The Family Consultant finally stated in her oral evidence, in respect to potential overnight time that,
    The concern is more does it exacerbate Mum’s anxiety and disgust and feeling that this man who she thought a relationship was over and who she doesn’t believe has any claim on the child is intervening in her life. If – if it comes to the point where that impacts on her relationship with X, I think that – that the benefits X might gain from that are outweighed by the negatives…But I would maintain that…Mum has introduced this man into this child’s life. They’ve developed a bond and, therefore, at some level she needs to tolerate some uncomfortableness with him going, at least, some occasions – some daytime to spend with this person who he has developed a bond with, a strong bond with.
  13. The Court accepts the evidence of the Family Report writer.

Relevant legal principles

  1. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
  2. In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
  3. To determine what is in a child’s best interests, the Court must consider the matters set out in subsections (2) and (3) of section 60CC. Firstly, the Court must consider the primary considerations, being:

(2)(a) The benefit to the child of having a meaningful relationship with both of the child’s parents; and

(2)(b) The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

  1. In applying these considerations, as per section 60CC(2A), greater weight must be given to the ‘need to protect’ the child over the benefit to the child of a meaningful relationship with the parents.

The Best Interests of the Children

Section 60CC Considerations

Subsection (2a) – the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration.

  1. The child has a meaningful relationship with the mother, his primary carer, and will benefit from a continuance of that relationship.
  2. Should the child spend unsupervised time with the Applicant, as proposed by the Independent Children’s Lawyer, the child’s meaningful relationship with the mother should not be detrimentally affected. As discussed below, under the need to protect primary consideration, the Court is not satisfied that the mother’s asserted fears of the child being abused by the Applicant, in particular her fears that the child might be sexually abused by the Applicant, are rationally based, and they are not fears genuinely held by the mother. There is no health professional evidence that the mother’s past or future parenting capacity for the child has been or may be adversely affected should the Applicant spend unsupervised time with the child.
  3. Further, the Court refers to the evidence of the Family Report writer, in this context, including her evidence that the mother appeared to be able to tolerate that the child would spend one full day per fortnight with the Applicant, and, that in the opinion of the Family Report writer, she would likely find this minimally intrusive to her household regime.

Subsection (2b) – the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

  1. The mother asserts that she genuinely fears that the child is not safe spending unsupervised time with the Applicant. She asserts that her fear of the child being physically chastised by the Applicant has reduced since the Court’s interim order restraining the parties from physically chastising the child. Rather, she asserts that her main fear relates to the child being sexual abused by the Applicant.
  2. In the view of the Court, there is no rational basis for these concerns, and the Court is not satisfied that such asserted fears are genuinely held by the mother.
  3. The three (3) main incidents that led to the mother’s asserted fear of the child being sexually abused by the Applicant were the incidents relating to the Applicant being naked in the swimming pool with the child, the Applicant showering naked with the child, and the occasion when the Applicant came out of the child’s bedroom, having checked on him after he had been coughing, when confronted by the mother. There is no evidence that the Applicant committed any act of indecency upon the child during those occasions and the mother readily concedes this to be the case.
  4. The mother acted inconsistently in respect to this asserted fear, for example, by permitting the Applicant to spend time alone with the child after the mother asserts she developed this fear (for example, she permitted the Applicant to pick up the child from school); she did not reveal this asserted fear to the Family Consultant at the Child Dispute Conference on 23 April 2015; and the court also refers to the evidence of the Family Consultant that the mother’s primary concern at the Family Report interviews was emotional intrusiveness by the Applicant, as opposed to her asserted fear for the child’s safety.
  5. In this context, the mother’s Counsel’s opening of the mother’s case to the Court is not without relevance, where it was stated, inter-alia, that in circumstances where the mother no longer had a relationship with the Applicant, and the mother wished to move on with her life, the Court should not order time between the child and the Applicant.
  6. The mother acknowledged that she could not “at this moment” say anything nice about the Applicant.
  7. She had stated to the Family Report writer (and confirmed in her oral evidence) that the Applicant appeared to have an obsession with the child which she feared was not normal.
  8. Further, in relation to the court’s finding above that the mother’s asserted fears are not genuine, the Court refers to its discussion previously in these reasons as to the unsatisfactory nature of the mother’s evidence. As submitted by the Independent Children’s Lawyer, the evidence before the Court indicates the mother has a very entrenched view that the Applicant should not be involved in her life or the life of the child, but that is not sufficient to cause the Court not to make orders that are in the best interests of the child.
  9. The Court is of the view that should the Court order that the child spend unsupervised time with the Applicant, as proposed by the Independent Children’s Lawyer, the mother’s parenting capacity for the child should not be adversely affected. In this context, the Court refers to the lack of any health professional evidence to this effect; Ms C’s evidence that she and the mother should be able to shield their feelings for the Applicant from the child; the evidence of the mother and Ms C that they will comply with any orders of the Court; there is no previous non-compliance by the mother with the Court’s interim order for supervised time; and the evidence of the Family Report writer.

Section 60CC(3) – Additional Considerations

(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

  1. The Court refers to the child’s views as expressed to the Family Report writer, referred to previously in these Reasons, together with his apparent continued wish to spend time with the Applicant since the Family Report interviews in August 2016. The Court gives some weight to the child’s views, but not significant weight, noting the child’s age, his ADHD, his mild learning difficulties, and recent placement on the autism spectrum (see Exhibit A).

(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

  1. The child has a meaningful relationship with the mother, and a close relationship with his step sister Ms C, and the mother’s extended family in (country omitted).

(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

  1. The mother has sought to exercise such opportunities.

(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

  1. The mother has fulfilled such obligations.

(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

  1. Should the child spend time with the Applicant, as discussed above under the meaningful relationship primary consideration, there should be no detrimental effect upon the child’s meaningful relationship with the mother.

(e) The practical difficulty and expense of a child spending time with and communicating with the 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

  1. Not applicable.

(f) The capacity of each of the child’s parents; and 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

  1. Both parties would appear to have such capacities.

(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

  1. The Court refers to the evidence of the Family Report writer, in particular in relation to her evaluative assessment of the mother and the child.

(h) If the child is an Aboriginal child or a Torres Strait Islander child: 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 the likely impact any proposed parenting order under this Part will have on that right

  1. Not applicable.

(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

  1. The mother’s attitude to the child and to the responsibilities of parenthood would appear to be satisfactory.

(j) Any family violence involving the child or a member of the child’s family

  1. The Applicant, at the time of separation in October 2014, had an argument with the mother. He threw her phone to the ground breaking it.

(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter

  1. Not applicable.

(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

  1. The Court refers to its discussions above under the meaningful relationship primary consideration.

m) Any other fact or circumstance that the court thinks is relevant

  1. The mother did not oppose changeover at McDonald’s Restaurant at (omitted) in the event that the Court decided the child was to spend time with the Applicant.
  2. The Applicant, historically, when living with and spending time with the child, has demonstrated appropriate attitudes to the child and has discharged his responsibilities of assisting the mother with the care of the child satisfactorily.
  3. The child has a meaningful relationship with the Applicant and will benefit from a continuance of that relationship.
  4. Should the child spend unsupervised time with the Applicant, during school terms on alternate Sundays from 9AM until 5PM, and during each of the school holiday periods for 3 consecutive nights, the child’s meaningful relationship with the Applicant should be able to be maintained.
  5. Further, in circumstances where it is unlikely that the child will receive express support from the mother and Ms C for the child’s relationship with the Applicant, should the child spend fortnightly unsupervised time with the Applicant during school term times, as opposed to some less regular time, his meaningful relationship with the Applicant is more likely to be not only maintained but enhanced.

Equal shared parental responsibility: section 61DA(1) and (2)

  1. The parties have agreed to an order that the mother have sole parental responsibility in relation to the child. Such an order will be in the best interests of the child.

Summary

  1. Accordingly, the Court is of the view that it will be in the best interests of the child to make final parenting orders in accordance with the Independent Children’s Lawyer’s proposed parenting orders as follows:

 

(1) All prior parenting orders are discharged.

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

(3) The child shall live with the mother.

(4) Unless otherwise agreed in writing between the Applicant and the mother, the child spend time with the Applicant as follows:

During School Term

(a) During school term, from 9:00am until 5:00pm each alternate Sunday, commencing on the first Sunday following the date of these Orders and recommencing on the first Sunday following the start of each school term;

During the School Holiday Periods at the end of Terms 1, 2 and 3

(b) During the school holiday periods at the end of Terms 1, 2 and 3 each year, from after school on the last day of the school term for a period of three (3) consecutive nights concluding at 5:00pm on the fourth (4th) day of that period;

During Holiday Periods at the end of Term 4

(c) during the school holiday period at the end of Term 4 each year, from 5:00pm on 26 December until 5:00 pm on 29 December; and

(d) for make-up time, as provided for in Order 5(c) and Order 6 below.

(5) That, if the child is not available to spend time with the Applicant in accordance with these Orders due to illness, then the mother shall:

(a) notify the Applicant as soon as practicable that the child is unable to attend to spend time with the Applicant;

(b) within 72 hours, provide to the Applicant a medical certificate from a registered medical practitioner indicating the nature of the child’s illness and including confirmation that in that medical practitioner’s opinion the child is/was medically unfit to attend to spend time with the Applicant at the time(s) provided for by these Orders; and

(c) make the child available to spend make-up time with the Applicant, for an equivalent amount of time to that which has been missed, within the next four (4) weeks.

(6) That, in the event that the mother takes the child on a holiday or trip for any purpose, during the time that the child is otherwise meant to be spending with the Applicant, then the mother shall make the child available to spend make-up time with the Applicant, for an equivalent amount of time to that which has been missed, within the next four (4) weeks.

(7) That, for the purposes of Order 4 above, unless otherwise agreed in writing between the Applicant and the mother, changeover shall occur:

(a) at the child’s school if at the end of a school day; or otherwise

(b) at the McDonald’s Family Restaurant at (omitted).

Other Matters

(8) That the mother shall communicate with the child by telephone between 6.30pm and 7.00pm on the second night of each period when the child is spending 3 consecutive nights with the Applicant pursuant to Orders 4(b), 4(c), 4(d) above.

(9) That the mother shall be restrained from enrolling the child in any sporting or extracurricular activities or from scheduling any appointments or other activities on a Sunday unless otherwise agreed between the Applicant and the mother in writing.

(10) That, in relation to the child’s schooling:

(a) these Orders authorise any school which the child attends from time to time to provide the Applicant (at the Applicant’s expense) with copies of all reports, circulars, notices and documents in relation to the child including copies of all school reports, reports on school progress and behavioural issues, school newsletters, school photograph order forms and as well as any and all information which may be sought from time to time by the Applicant in relation to the child.

(b) that the Applicant otherwise refrain from attending upon the child’s school.

(11) That, should a medical emergency arise in relation to the child while the child is in the care of one party, then that party shall notify the other party as soon as practicable of the time and nature of such medical emergency, the name and address of any treating practitioners and/or hospital and the location of the child.

(12) That each party notify the other of their residential address, email address and mobile telephone number at all times and notify the other within 48 hours of any change to that residential address, email address or mobile telephone number.

(13) That each party be restrained from denigrating the other directly or in the presence of the child.

(14) That each party by restrained from physically disciplining the child, or allowing any third party to physically discipline the child whilst the child is in their care.

(15) That the Applicant and the mother shall within seven (7) days of the making of these Orders do all things necessary to contact the organisation known as Autism Spectrum Australia (“ASPECT”) and do all things required to make enquiries and to enrol in any course, program and/or workshop run by and as recommended by the staff of ASPECT and they shall do all things as requested and as directed by the staff of ASPECT in relation to their attendance and their participation in order to complete the course, program and/or workshop and they shall follow any other recommendations and referrals from the staff of ASPECT including ensuring the child attends upon the organisation if directed by the staff of ASPECT.

(16) That the mother make the child available to have these Orders explained to the child by the Independent Children’s Lawyer and the author of the Family Report prepared for these proceedings, Ms B at such time and place as is arranged by the Independent Children’s Lawyer in consultation with Ms B and the mother.

I certify that the preceding one hundred and eighty (180) paragraphs are a true copy of the reasons for judgment of Judge Newbrun.

Date: 13 September 2017

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.

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