Autism and equal shared parental responsiblity

Autism and equal shared parental responsiblity

Cullen & Cullen [2016] FamCA 110 (1 March 2016)

Last Updated: 15 March 2016

FAMILY COURT OF AUSTRALIA

The following is annotated. For full case: http://www.austlii.edu.au/au/cases/cth/FamCA/2016/110.html

Dr D’s evidence

33. Dr D was jointly instructed by the parents. As I have said, his report was obtained at the insistence of Judge Cassidy.
34. Dr D obtained his specialist qualifications as a paediatrician in 1992 and has clinically specialised in the area of developmental and behavioural paediatrics. He is, I am satisfied, well qualified.
35. Dr D produced a written report for the parents and the Court in May 2013 and he was cross-examined at the trial before me. He had read six affidavits filed by the father and a case outline. He had read nine affidavits filed by the mother, including one by her. He impressed me with his objective and carefully considered expert opinion.
36. Dr D observed that the father initially wanted to change the parenting arrangements based on the assertion that the mother does not have sufficient capacity to care for C’s special needs. The father’s case was based on the mother having a history of mental health disorder and alleged demonstrated inability to cope with C’s care and to manage caring for both boys in her household at the same time.
37. Importantly, in my view, Dr D pointed out that the father asserted that the use of medication (Risperidone) for C is the consequence of the mother’s lack of capacity to manage him, whilst the mother’s case was that C is intrinsically difficult to manage and the medication enables him to be successfully cared for and better able to benefit from intervention.
38. Dr D went on to express the view that when children have special needs, the “bar” that determines what may be considered “good enough” co-parenting is higher. He said:

Children with special needs have a higher requirement for agreement between parents about the nature of their special needs, the objectives, or goals that are being worked towards, the strategies undertaken to work towards these goals, and the communication and reflection to monitor and modify those strategies across time.
Children with special needs are likely to have greater vulnerability and reduced resilience to the consequences of acrimony and inconsistency of experience if parents are in conflict and unable to cooperate.

39. Dr D assessed C as having a significant degree of impaired intellectual function. He described C’s general development at less than a two year old level and his language development at less than one year old.
40. Dr D reported that C does use physical aggression and the doctor said that he observed that when the child was with both parents. It included pinching and biting.
41. Dr D expressed the view that the documentation he read demonstrated negligible recognition by the father of workload and degree of difficulty in mothering a child with C’s degree of impairment and a lack of recognition of what a mother can uniquely bring to the situation. He considered the content and tone of the father’s documents “appeared to degrade” the mother’s contribution to the children’s care rather than trying to support it.
42. On the other hand, the doctor expressed the view that the high level of expressed emotion directed from the mother to the father was less about the father’s capacity to care for the children and more about his perceived lack of support for her as a mother and his ability to collaborate constructively.
43. The doctor considered that the documentation showed that the mother had done more in respect of considering C’s special needs, making efforts to engage with education about those special needs, and making efforts to build partnerships to help C. He expressed the view that the issues the parents had in respect to the administration of Risperidone “reflects deep impasse of belief, understanding and collaboration”. The doctor observed that Dr F had prescribed Risperidone as a tool to assist the parents with the day to day management of C and also to increase opportunity for developmental intervention. Dr D expressed the view that the use of the medication was thought by the father to be “a compensatory mechanism to enable C to be controlled … because of lack of parental competence”.
44. The doctor reported communication with the Principal of the school C attended. The Principal is said to have reported that much time and energy is taken up managing C’s difficult behaviour such as biting and in settling him each day as his emotional and attentional regulation is very poor. The Principal is also said to have reported that if C were more settled, there would be greater opportunity to teach him and that his development would in all likelihood progress more quickly. He also apparently reported that the use of the Risperidone medication made a noticeable and beneficial difference to C and that his variability from changes in the administration of the medication from week to week made teaching C more difficult. I will return to this issue soon.
45. Dr D finished his report expressing the opinion that C needs consistency and competency in meeting his day to day care needs. He said that C’s emotional dysregulation and related behaviours originate from his medical condition to a greater degree than from any consequence of his management and care. He expressed the view that even if the father’s case that he manages C’s behaviour more successfully at his house than does the mother at hers is correct, that the benefits of that do not extend to C’s time at school during the time that he is with his father.
46. Dr D stressed the need for a mechanism whereby therapeutic interventions are coordinated and evaluated on a consistent basis, with strategies being communicated and undertaken across home and school. He effectively said that if this is done and done well, it could make a large difference to C’s quality of life as he gets older. Dr D then expressed the view that consideration of the child’s parenting arrangements involves not just capacity to meet C’s day to day care needs but also a consideration of parental capacity to work systematically in partnership with relevant agencies towards addressing his developmental care needs.
47. Dr D frankly and respectfully opined that the shared care arrangement “is not working”. He pointed to significant difference of beliefs in regards C’s special needs and how these should be managed, with little apparent goodwill and trust between the parents. He suggested this blocked the ability to appreciate and support the unique and independent contribution of the other parent, with potentially harmful consequences for C. He listed some relevant matters as:
    • Negative impacts on the care and mental health of both children, caused by the level of acrimony and expressed negative emotion between the parents;
    • Lack of capacity to respectfully negotiate fundamental issues, such as medication;
    • The unlikelihood that the level of acrimony between the parents will settle with the current arrangements appearing to perpetuate and build the distortions of belief and express acrimony; and
    • The current impasse, evidenced by the litigation, diverting the parents’ capacities, in money, time and energy, away from the well-being of the children.
48. He then made the following suggestions for consideration:
    • Maintenance of C’s relationships with both parents is important;
    • Basic decision making such as the use of medication should be set up to occur in a manner that is able to succeed for C and that one parent should have the authority to make decisions on the understanding that these decisions are made collaboratively with appropriate professionals, and reviewed regularly;
    • Whilst the father asserts that the mother does not have the capacity and mental health necessary to undertake her duties as a mother with sufficient consistency, reliability and effectiveness, he saw no evidence that would clearly support this claim;
    • There is a need to consider not just who is better to manage day to day care needs, but also how best to meet C’s developmental needs. As specialised knowledge by parents with regards to the nature of the disorder, and strategies necessary to manage day to day care and also to build skills and competencies necessary for improved development across time are required, a key capacity necessary for this is the ability to nurture relationships and work collaboratively with professional and educational staff and organisations; and
    • Each parent’s capacity to support the other, as if the primary parent does not support the relationship with the secondary parent, there could be pressure over time to diminish the relationship with the secondary parent.
49. Dr D, in my judgment, did not waiver from the opinions he expressed in his written report during his oral evidence under cross-examination. He was firm in the opinion that decision making around medication needs to be consistent and that it was not in this case. He stressed again the need for parents of a child with autism to have appropriate empathy for each other and a capacity to cooperate functionally. He expressed the view that in this case that was missing and that there needs to be a mutual understanding that this is the goal to strive for.
50. Although Dr D’s written report was provided in early 2013 and the trial in this matter took place in late 2014, I considered the opinions he expressed in his report still of poignant relevance at the time of the trial. Clearly, each of the parties had been moved by Dr D’s written report when they first received it. The mother changed her position in respect of the parenting orders she was seeking as a direct consequence, thereafter asking for principal responsibility to care for C (and his brother, B) from then on, instead of subjecting him to a week about transitional arrangement. The father changed his position, too, still seeking an order that he have principal responsibility of caring for C, but opting for B to remain in the week about equal shared care regime, thus splitting the boys each second week. As already observed, by the time of the trial, the father had dropped his application for C to be in his principal care, reverting back to an equal shared care proposal in respect of both boys.
51. After considering all of the evidence, including Dr D’s carefully expressed opinions, I, too, was moved to the view that it is in C’s best interests for one of his parents to have the sole responsibility for making the significant decisions about C’s health and his education, as well as the principal responsibility for C’s day to day care.
52. Counsel for the father valiantly submitted that Dr D, in expressing the opinions that he did, strayed way beyond permissible boundaries having regard to his particular expertise. With respect, I do not accept that. I was quite satisfied that the opinions expressed by the doctor were attributable to his specialised knowledge based on his training, study and experience. I consider that working closely with parents of autistic children in the care and management of their child has been very much part of his experience in the development and practice of his specialised expertise. He carefully explained his opinions and, where he expressed them by reference to his reading and understanding of the written material that he had been provided with, they were, in my judgment, fundamentally sound. I make that observation in particular, but not limited to, the doctor’s expression of his perceptions of the attitudes and positions of the parents in this matter.

Dr F’s evidence

63. Whilst I accept that both these parents dearly love and care for their two sons and that their two sons are closely attached to each of them, there was nevertheless much evidence of parental conflict and disputation before the Court. Much of that was post-separation and a lot of it was even after the court proceedings had been commenced by the father.
64. Dr F, paediatrician, gave relevant evidence. He was the paediatrician caring for C from several years ago, first seeing him around the middle of 2010. It is clear on the evidence that he was only seeing C in the company of the mother through until late in 2011, when in November that year he saw both parents at the same appointment.
65. Dr F was the doctor who initially prescribed the medication, Risperidone, for C in September, 2011, apparently to assist in managing C’s behavioural issues. C was put on a trial of it with an introductory dose, being increased over time.
66. The introduction of this medication to C led to disagreement and conflict between the parents. When the mother told the father about the medication, he was quite upset, apparently concerned for its potential detrimental impact on C. Subsequently, there was a great deal of further disagreement and disputation between the parents over the issue of the Risperidone and Dr F, to his clear and apparent discomfort, was right in the middle of it.
67. The mother invited the father to attend an appointment she had for C with Dr F to discuss the issue of the medication. That was the appointment that was in November, 2011 that I have referred to above.
68. In circumstances where Dr F said (at least in Court before me) that ideally a child such as C should continue on the same dosage of the medication in each parent’s household, interestingly, the Doctor nevertheless agreed at that 2011 appointment that the father could give C less of the medication when he was in his weekly care than the mother was advised to give when he was in her weekly care. This only increased the difficulties as between the mother and the father and these went on for over a year thereafter.
69. The issue was brought back to the Court before Judge Cassidy in August 2013 with orders being made by consent regulating the Risperidone dosage and requiring the parents to attend upon Dr F to receive further advice about the medication and to follow his recommendations in that respect.
70. Dr F did not accept being thrust into that sort of role as between the parents and told them that he would not continue to care for C in these circumstances. The parents came back before the Court soon thereafter and another order was made by consent in November 2013 in which the parents agreed to have C treated by another Paediatrician, Dr G, and to comply with her recommendations as to medication, including the administration of Risperidone.
71. The long-standing parental disagreement about the appropriateness of particular medication and recommended dosages was extremely concerning and far from optimal for C.

Dr G’s Evidence

72. Dr G gave evidence that she had been treating C since late October 2013, that she had prescribed Risperidone at that time, and that she had increased the dose in December 2013. She saw C and the parents again in March and September 2014 and had not altered the dose. The doctor told the Court that the school had confirmed that C is still scratching and biting despite the medication and that she was happy to continue providing treatment for C, fully cognisant of the disputation between his parents.
73. Notwithstanding the father’s initial strong opposition to C being administered Risperidone, he had modified his position and by late 2013 the parents agreed to both jointly follow the recommendations of the treating specialist. I am not confident that the father would have modified his position had the court proceedings not been on foot and had the mother not demonstrated her readiness to bring the matter before the Court for determination if agreement could not be reached.

Other disagreement relating to dealing with C

74. There was also evidence of other disputation between the parents in respect of C and his care. Apparently, possession of an iPad with a particular application designed to assist C with his communication had been recommended to the mother as far back as 2012 and she obtained one for C to use in her home.
75. The mother’s evidence is that when she raised it with the father, he said that he already had an iPad in his household but considered the recommended communication application to be “silly”. The father’s evidence, contrary to that, is that he first learned of the use of the iPad and the application late in 2013 at an appointment with Dr G.
76. What is not in doubt is the fact that the mother pressed for the father to use the communication application with C on his iPad in his household. At court, in November 2013, the father clearly agreed to orders being made that required both parties to use the application, conditioned, though, on the application being recommended by Dr G or C’s teacher or school Principal. The inference that I consider can be reasonably drawn from that is that one of the parties was still reluctant to use the particular application without further recommendation. I consider it also reasonably safe, on the evidence, to conclude that was the father.
77. The November 2013 Court order also required the parents to arrange for C’s speech therapist to set up the application and provide a demonstration of its use, if it was to be used.
78. The evidence satisfies me that the parents clearly remained in some disagreement about this issue for several more months and that well into 2014 they were still sorting out the use of the communication application, with the mother asserting that the father had still not set up the application on a device in his household.
79. At trial, Ms I, a speech pathologist called by the father, told the Court of her dealings with the parents from April 2014, after she was contacted by the mother, to help them with the communication application. She told the Court that she assisted the father to set up the communications application. She also told the Court that ideally C should have one tablet device with the communication application installed, that he would take between his parents’ households. At one point, the father who already had an iPad in his household but who needed to take it to work with him, apparently proposed the joint purchase of an iPad for C to use between households, but the mother, who already had one in her household did not agree to contribute to the extra cost of buying another one. At the same time, the mother was not prepared to let the one she had acquired, travel with C between households, and the father was not prepared to let the mother have access to his iPad to ensure that the communications application on it was kept updated to the same level as the one in her household. Such is the apparent level of mistrust between the parents, that even this relatively simple matter could not easily be resolved to C’s ultimate benefit.

My findings about the parents and their evidence

110. With respect to the father and his legal representatives, the nature of the case he sought to make out against the mother when he first held on to the boys in early 2013 presented him with real difficulties in running his case for equal shared parenting to continue when the matter came on for trial. At the trial, the father asserted, essentially, that he had changed his views about the mother and her capacities to properly care for the boys, particularly C, and that he now accepted that keeping things as they were before he unilaterally changed them was in the boys’ best interests.
111. However, I was not particularly convinced that he had actually changed his views. An example of that presented itself in his assertion, in response to a question his own counsel asked him about the nature of communication between him and the mother, that the mother’s communications with him were “difficult”, demonstrated “no common sense” and were “irrational”. Indeed, he maintained, even to the end of the trial, that communication between them in the future should be contained to texting and emails, rather than verbal communication. The evidence suggested that historically the parties’ communication by text and email was less than ideal for effective and appropriate, child focused co-parenting and I was far from satisfied that leaving equal shared parenting in place with no actual change in their communication methods, style or attitudes, particularly the father’s attitude towards the mother and communication with her, would meet the best interests of these two boys.
112. Although it could not be said that the mother’s attitude to the father and his role in the boys’ lives cannot be subject to any criticism, I was more than satisfied, even considering that she pressed for sole parental responsibility and a small reduction in the time that the boys spent in their father’s actual care, that she did fundamentally respect his role in the boys’ lives and also the boys’ needs to maintain meaningful relationships with him. I did not form an impression that the mother grasped opportunities to reduce the children’s time with their father or to whittle away at their relationship with him. Indeed, the undisputed evidence that she willingly let the boys live with him for several months after her residence had become uninhabitable due to flooding is persuasive in that respect, in my judgment.
113. Like Dr D, I, too, was satisfied that the mother’s criticism of the father arose out of and was related more to her perceptions of his unwillingness to engage appropriately with her in co-parenting the boys rather than a view that he could not offer the boys suitable care. I am satisfied that it was that perception which motivated her, particularly after reading and considering Dr D’s written report in 2013, to apply to change the parenting orders so that the boys lived principally in her care, a perception she still held at trial. As I have indicated already, I accept, after considering all of the evidence, that there was factual justification for her perceptions.

The father’s specific submissions about parental responsibility for C

114. In his oral and written submissions, counsel for the father referred me to a judgment of my judicial colleague, Justice Cronin in Hope & Kingston (No 2) [2013] FamCA 720 and a judgment of Judge McGuire of the Federal Circuit Court in Tyers & Stafford [2014] FCCA 480. In each of those judgments, their Honours had made orders that the parents equally share parental responsibility for autistic children, despite evidence of significant differences in their parenting styles and attitudes to the autism diagnosis, unless one of the parents did not agree with a recommendation of “the multi-disciplinary team” of experts advising the parents in those cases, in which case the parent who agreed with the recommendation was given sole parental responsibility for that issue.
115. For the father, it was submitted the same order should be made in this case. It was submitted that the parents had effectively been working under such arrangements since November 2013, with Dr G being the treating paediatrician.
116. As it can be seen already, I have rejected that proposed manner of dealing with parental responsibility for C in this case. It is trite to say that every single case that comes before either the Federal Circuit Court or this Court must be dealt with on its own facts. In respect of those two decisions I was referred to, I note that “a multi-disciplinary team of experts” working with the autistic child and the parents was referred to and that Justice Cronin, in his judgment, referred to that team in that case being co-ordinated or lead by a particular specialist. In this case, it is not my understanding that there is a team of experts, working together being led by one particular specialist.
117. Dr G was C’s treating paediatrician at the time of the trial, but was not, at least in my understanding of the evidence, leading a group of experts working as a team in the provision of services to C and his parents. As such, there will not be advice and recommendations as to treatment options coming to the parents from a co-ordinated team, the members of which have each other for support and who channel their advice to the parents through a team leader.
118. I do not consider it in C’s best interests to make a parental responsibility order that puts a medical, allied health or educational expert in the position of providing advice and recommendations to C’s parents knowing that the parent who says they will accept that advice gets to solely exercise the parental responsibility to make that decision. With all due respect to the judges who made orders like that in those other cases, I am not of a view that it is a proper order to make in this case. I consider that an order like that in this case, with different experts being involved in various ways across the spectrum of dealing with C’s health and education, could potentially create further disagreement between the parents, including uncertainties around precise outcomes, and unfair and distracting pressures on those experts. Indeed, disagreement about the identity of the particular expert whose advice and recommendations was to determine the course of decision making and action could potentially be a serious problem.
119. As I have said, I am more than satisfied by the evidence that the consistency of a single-point of responsibility for the major decisions that have to be made in respect of C’s health and educational development and outcomes is what is in his interests. The parental responsibility order I make will not deprive the father of the opportunity to be involved, alongside the mother, in consultation with the experts, or the opportunity to provide his own input into the process of the decision making.