FATHER SEEKS FOR A SHARED CARE ARRANGEMENT WHERE ONE OF HIS CHILDREN HAS AUTISM SPECTRUM DISORDER
Sharlow & Nance [2021] FCCA 714 (25 March 2021)
This is a case where the father seeks that the children live with the parents on a 50-50 shared care week-about basis. Mother opposes such arrangement alleging that it is not good for their child’s disorder.
Facts:
These are parenting proceedings in relation to X, born in 2009, who is aged 12, and Y, born in 2011, who is aged nine. The issue for determination is the future parenting arrangements, on an interim basis, for the children.
The father seeks that the children live with the parents in a 50-50 shared care week-about basis from Friday to Friday.
The mother seeks that the children live with her and spend time with the father in a block set of five nights a fortnight, and one-half of all school holiday periods.
X has a number of health conditions. Notably, she suffers from a medical condition, which makes her more susceptible to autoimmune diseases and infections. It would appear that the parties work together to ensure that X follows her medication regime and that her condition is appropriately monitored.
Y has a number of health problems, including eczema, but of most note is that on 20 March 2019, he was diagnosed with autism spectrum disorder (ASD), level 1.
The father’s case is that the parties entered into a parenting agreement in 2017 and, since that time, the children have lived with the mother and spent time with the father in accordance with that agreement, save for the period interrupted by COVID-19.
In accordance with the parenting agreement, the children currently spend five nights per fortnight, in two blocks, with the father. The mother wishes that the father’s time be converted to a block of five nights. The father objects to this because it would mean that the children do not spend time with him for a block of nine and a half days.
There is clearly an issue as to whether a shared care arrangement is suitable for Y, who has autism. The father says that, as a health care professional, he fully understands Y’s condition, works with Y’s psychologist, and fully supports the treatment that Y engages with. Whilst this is contrary to the mother’s view, and that taken by the Family Consultant, he says there is no evidence that the adoption of a shared care arrangement would affect Y’s autism.
The mother argues that a five-day block of time with the father would be in the children’s best interest. She relies on the evidence of the Family Consultant and a report from Y’s treating psychologist to argue that Y needs consistency between households. She says that her structured proposal provides more certainty for Y as there is less room for interpreting or negotiating of the arrangements between the parties, thereby, she hopes, limiting the conflict between them.
She says that the five-night arrangement is more child-focused and limits the children’s exposure to the parental conflict, which currently arises due to the ongoing communication and contact between the parties, due to the multiple changeovers.
Issue: Should the court grant the relief sought by the father?
Law:
Analysis:
The father’s arguments were persuasive. There is a temptation to move the children to a week about arrangement because it will potentially reduce the contact the parties have with each other. But the court has to evaluate the proposals and be satisfied that such an outcome would be in the best interests of the children for now. Having thought very carefully about this, and weighed up all the material, the court is not satisfied that it would be in the children’s best interests if they were to be placed in a shared care arrangement right now.
There is no independent evidence before the Court on the impact of a shared care arrangement on Y, apart from the Child Inclusive Conference memorandum, and it makes a clear recommendation that such an arrangement would be unsuitable for Y.
Moving to two blocks of five-nine, as proposed by the mother, will at least reduce the need for so many changeovers and the resultant parental communication. This is partly consistent with the wishes of the children, particularly X, who complains about ongoing exposure to the parental conflict, particularly at changeovers.
The court agrees with the mother’s submission that the best interests of the children are best served by providing them with more certainty today with orders that provide two clear blocks. If the children settle into this arrangement, and the parental conflict is reduced, it would then be open to the Court to consider moving to a shared care arrangement once the evidence is tested, and with the benefit of some more detailed family assessments.
Conclusion: The court orders the relief sought by the mother which is that the children live with her and spend time with the father in a block set of five nights a fortnight, and one-half of all school holiday periods.