COUPLE FIGHTS OVER WHERE THE CHILD (DIAGNOSED WITH ASD) SHOULD PRIMARILY LIVE
Beckingham & Vallens [2020] FCCA 3389 (23 December 2020)
This is a parenting case where the father seeks that his child who is diagnosed with Autism Spectrum Disorder (ASD) to primarily live with him in the greater Hobart area.
Facts:
The applications are in respect of parenting orders for the parties’ one child, X born in 2010 (aged 10 years). The applicant father asks for orders that X live primarily with him and that they be permitted to relocate from Launceston to the greater Hobart area. X currently lives with her mother in the Launceston. locality.
The father argues generally that he can provide better for X's best interests broadly. Specifically, he argues that the mother suffers the symptoms of mental illnesses and cannot provide adequately for X's education including consistent school attendance. Secondly, and specifically, he argues that he can better attend to X's medical needs. Mr Beckingham (father) says that he can provide X with the benefit of a structured and loving family unit.
The mother says that X's best interests remain living with her in Launceston. She says that she can offer stability of schooling, peer group relationships, extended family contact and routine all within the context of X's diagnosis of ASD. She says that she is accepting of and addressing X's needs for routine and order consistent with his diagnosis. She has a strong family support network and, contrary to the father's allegations, she has all of the skills and facilities to attend to X's needs.
The mother says that X's strong preference and articulated to both parents and the family reporter is to stay in Launceston and within his current school and friendly environment.
Issue: Is X's best interests are served by continuing to live in Launceston with his mother or moving with the father and his family unit to southern Tasmania?
Law:
- Family Law Act 1975 SS.60B,60CA, 60CC(2) and (3), 65DAA
Analysis:
The father's proposal would bring a significant change in the nature of X's relationship with his mother where the family reporter emphasizes the importance of that relationship for X. Equally, the mother can provide the consistency of school and peer group relationships for X in circumstances where there is a current diagnosis of ASD and where it is generally accepted that children with such a diagnosis do not benefit from change but rather from continuity, predictability and familiarity. Whilst the mother offers a significantly different household model than does the father where she is effectively a sole parent, she does offer proximity and frequency of relationships for X with his extended family where such relationships, on the evidence, appear to be important for this child.
The court is satisfied with the evidence that X has a strong preference to remain living in Launceston and most likely to remain living in the care of his mother. He has been able to articulate these preferences to his teachers, the family reporter and, importantly, to both of his parents. This ability to disclose his preferences is but one piece of evidence of the maturity, rationality and informed nature of those preferences.
On the balance of probabilities, that the mother is more attuned to the needs for X to maintain a relationship with both of his parents than the father who, by reason of his personality, places a lesser value on the importance for X in his relationship with his mother and in this sense the court adopts the observations of the family reporter.
In making this determination the court places considerable weight on what it finds to be the informed and mature views and preferences of X himself and where to make orders contrary to those views might serve to challenge and compromise his future relationships with each of his mother and his father. The court also place some weight on the personality of X himself and where the evidence suggests a diagnosis of ASD and a preference for stability and familiarity for X and on the observations and opinions of the principal and teacher from X's school.
Conclusion: The Court orders that X remains living in Launceston the mother.
