Court Rules in Favor of Father Seeking Custody of Child with Autism Spectrum Disorder
Thukral & Trishna [2022] FedCFamC1F 572 (10 August 2022)
The family moved to Australia in 2014 and have since been through a period of separation and allegations of misconduct. The court must now decide whether the father should have parental responsibility for the child, and what type of contact should be allowed between the child and the mother.
Facts:
A father and mother married in Country T in 2009 and had a child, X, in 2011. The family moved to Australia in 2014 and became permanent residents in 2015. X was assessed to have sensory processing difficulty and problems with fine motor skills, and was later diagnosed with Autism Spectrum Disorder. The parents had an unhappy and often tumultuous relationship and separated in 2018. The mother made serious allegations against the father about his conduct towards X and the Court found that the mother's depiction of herself as a victim for the reasons she stated minimised her own behaviour.
The mother left the former matrimonial home with X and removed him from school without the father’s knowledge or consent. There followed a period of almost five months when X spent no time with the father. The father is now asking for X to live with him and spend time with the mother, while the mother wants sole parental responsibility, for X to live with her, and have no contact at all with the father.
Issue:
Whether or not the mother’s case about the family violence perpetrated by the father has not been established.
Applicable law:
Family Law Act 1975(Cth) ss 4AB - provides that for the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
MRR v GR (2010) 240 CLR 461; [2010] HCA 4 - each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.
Analysis:
The mother was aware of the findings of the JIRT investigation as early as January 2020, and accepted them, but did not do more to facilitate the father's time with X. Dr M's evidence was that the mother was emotionally abusive to X, by placing the burden of rejection onto him and causing considerable stress. This created an environment where the mother was unable to meet the responsibilities of parenthood, and it took an order from the court in November 2020 for X to see his father again.
Dr M believes that X's relationship with his father should be protected and that time with his mother should be limited and supervised, in order to gradually progress it. He is concerned that the mother's narrative of family violence and child abuse has not changed significantly and that there is a risk of her "splitting back" into this narrative, leading to new allegations and X mirroring it. Time is seen as a boundary to protect X in this case.
Conclusion:
This order states that the father has sole parental responsibility for X and the mother must be informed of any major decisions regarding X's medical, schooling, and religious matters. It also outlines the times X will spend with the mother, including supervised visits, unsupervised visits, and holiday time. It also states that the mother and father are not allowed to speak negatively about each other or X's extended family and that physical discipline is not allowed. Finally, it states that the Independent Children's Lawyer has permission to provide the Department of Communities and Justice with the Single Expert Report of Dr M and a copy of the orders or use physical discipline with X. Lastly, the Independent Children's Lawyer has permission to provide certain documents to the Department of Communities and Justice.
Case: Thukral & Trishna [2022] FedCFamC1F 572
Judgment of: ALTOBELLI J
Counsels:
Counsel for the Applicant: Mr Jackson