Cannon and Cannon
[2010] FMCAfam 681
•16 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CANNON & CANNON | [2010] FMCAfam 681 |
| FAMILY LAW – Children and parenting – conflict between parents – drug use of parent – differing parenting styles (intense/relaxed) contributing to conflict between parents – regime of drug testing – self-executing orders. |
| Family Law Act 1975, ss.60B(1), (2), 60CA, 60CC (1) & (2), 60CC(3) (a), (b), (c), (d), (e), (f), (g), (i), (l), 60CC(4), 60CC(4A), 61DA, 65DAA(1), (2), (3), (5), 69ZT |
| Goode v Goode (2007) 36 Fam LR 422 T. Altobelli FM, “A response to `A Cautionary Tale’: Learning to paint with a fine brush,” presentation to the 8th Annual Family Law Intensive, Sydney |
| Applicant: | MS CANNON |
| Respondent: | MR CANNON |
| File Number: | SYC 5617 of 2008 |
| Judgment of: | Neville FM |
| Hearing dates: | 25 & 26 June, 20 November 2009 |
| Date of Last Submissions: | 11 January & 8 June 2010 |
| Delivered at: | Canberra |
| Delivered on: | 16 July 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms A. Tonkin |
| Solicitors for the Applicant: | Barker & Barker, Canberra |
| Counsel for the Respondent: | Mr D. Dura |
| Solicitors for the Respondent: | Turner Freeman Lawyers, Sydney |
ORDERS
The parents of [X] born [in] 2004 (“the child”) enrol, participate in and complete the ARCK program or similar parenting course to be agreed between the parties.
The parents have equal shared parental responsibility the child.
The child live with the Mother.
The child spend time with the Father five (5) nights per fortnight, the precise days and changeover arrangements to be agreed between the parties.
The child is to spend each alternate Christmas Day and the child’s birthday in alternate years with each parent.
The child is to spend every Father’s day with the Father.
The child is to spend every Mother’s day with the Mother.
The following drug testing regime is to be complied with by the Mother for a period of 18 months:
(a)The Mother is to undergo urinalysis testing once per month and the results of such testing are to be provided to the Mother’s legal representative who, within 24 hours of receiving the results, shall provide a copy of the results to the Father’s legal representative.
(b)A maximum of once every two months, the Mother is to comply with a random urinalysis test requested by a representative of the ARCK program- or similar parenting course- being completed by the parties.
(i)The Mother is to comply with such a request within 48 hours of the request being made.
(ii)The test results are to be provided to the Mother’s legal representative who, within 24 hours of receiving the results, shall provide a copy of the results to the Father’s legal representative.
(c)Within nine (9) months of the date of these Orders the Mother shall undergo hair follicle testing and a further hair follicle test nine (9) months thereafter.
(i)The test results are to be provided to the Mother’s legal representative who, within 24 hours of receiving the results, shall provide a copy of the results to the Father’s legal representative.
(d)The cost of all drug testing to be paid for by the Mother.
In event that Mother returns two (2) positive drug tests within a three (3) month period, the following will apply:
(i)On the first occasion the 18 month drug testing regime as set out in Order 8(a)-(c) will automatically recommence.
(ii)In the event that the Mother returns a further two (2) positive drug test results, a self-executing Order will issue vesting sole parental responsibility for the child in the Father.
(iii)In the event that the Mother returns an further two (2) positive drug tests, an additional self-executing Order will issue ordering that;
A.the child live with the Father; and
B.the child spend supervised time with the Mother until such time that she provides evidence of clean drug tests for a period of 12 months.
Upon both parents completing a parenting course, and the Mother completing the prescribed drug testing regime, the child’s time with the Father is to be systemically but gradually increased in accordance with these reasons until it equates to an equal time arrangement. The schedule of increased time between the Father and the child is to be negotiated via private mediation.
IT IS NOTED that publication of this judgment under the pseudonym Cannon & Cannon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
SYC 5617 of 2008
| MS CANNON |
Applicant
And
| MR CANNON |
Respondent
REASONS FOR JUDGMENT
A. Introduction
Formally, this case concerns the Court’s adjudication between competing parenting orders sought in relation to [X], who was born in 2004. More subtly, but no less relevantly, this case is replete with diverse, and sometimes competing, dissonances, which the Court must navigate in arriving at orders that are in [X]’s best interests, as opposed to either of the parents’ best interests, including assuaging their various anxieties about “the other parent.”
For example, in the communication book, even in quite recent times,[1] there is clear, quite lengthy and detailed, respectful, indeed sometimes very friendly, discussion between, and the provision of information by, [X]’s parents. I take this to be significant evidence of each parents’ capacity to communicate in relation to matters involving their son. As such, they are matters that come directly within the purview of ss.60CC(3)(c) and (i), and s.60CC(4) of the Family Law Act1975 (“the Act”).
[1] The most recent entries are dated 10th & 13th November 2009. The Communication Book became Exhibit I.
That said, this evidence also disclosed one area of dissonance. This is to say that, notwithstanding the clear, helpful and appropriate communication between the parties, in the course of the trial and in other evidence put before the Court, they exhibited not infrequent (and considerable) distrust of each other, and equally not infrequent disquiet about the parenting capacities of the other parent. In my view, these views of the parents (I stress the plural) are not completely without foundation – as the following reasons show.
The question is, however, whether the reasons for disquiet are sufficient to require or to force the Court to accede – in part of in full – to the orders sought by either of the parties, or whether some appropriate via media or `middle way’ can be found that is in [X]’s “best interests,” provided procedural fairness is accorded to both parties if that “middle way” is significantly different from the applications before the Court.[2]
[2] See s.60CA of the Act. On “procedural fairness” in the context of family law proceedings, see, for example, the remarks of Hayne J in U v U (2002) 211 CLR 238 at [172].
The parties married in 2000, and separated in 2007. Based on the contents of a letter from Mr Cannon to Ms Cannon sent in October 2008, which became Exhibit F, Mr Cannon expressed significant affection for Ms Cannon, and professed significant trust and confidence in Ms Cannon as [X]'s Mother.[3]
[3] In the course of the letter, Mr Cannon stated, among other things: “You are a good mum to [X].”
Mr Cannon has now re-partnered. His fiancée gave evidence at the trial. Ms Cannon has not re-partnered.
One other preliminary observation should be made. Stated simply,
Mr Cannon and his new partner have moved somewhat recently from Sydney to Canberra, which has had the effect that, obviously, issues of long-distance travel and related matters are now no longer significant considerations in the proceedings and the orders to be determined. Clearly, this is to everyone’s benefit, especially [X]’s.
I might also note that, summarily stated, the issues that were most prominently addressed in the course of the trial concerned (a) when stressed and/or [seemingly] for occasional recreational use,
Ms Cannon’s propensity to take drugs (notably and seemingly exclusively marijuana), and (b) Mr Cannon’s not infrequent lack of communication with [X]'s Mother, and the not insignificant influence of his family and its impact on his parenting.[4]
[4] It seemed not disputed that, in July 2007, Mr Cannon was hospitalised for attempted suicide. Otherwise, this matter assumed little prominence at the trial.
A third issue might be described – in my words – as Mr Cannon’s intensity, both in attitude and approach, to parenting [X]. Put another way, some might suggest that [X], to speak metaphorically, may be `at risk’ from too much attention from his Father; there is certainly no risk that [X] will ever be neglected while-ever in his Father’s care. All of this is to say that Mr Cannon and Ms Cannon have very different parenting styles. Mr Cannon’s is almost hyper-vigilant; Ms Cannon’s is rather more ‘relaxed.’ These extremely different approaches to parenting have clearly contributed to the tensions between the parties.
It is not intended as any slight to Mr Cannon (or his fiancée) to wonder, if they have any children, whether that child or children will have the same intensity of focus as [X] has had, and or whether the gaze on [X] will be any less intense if he has any other brothers or sisters.
One final, preliminary matter should also be observed, to which I made reference early in the trial. Particularly on Mr Cannon’s side, the Court was almost beset by affidavits of very significant proportion.
If a critical aspect of advocacy is to assist the Court,[5] I remain unconvinced of the need to file affidavits of such enormous volume. As I said during the trial, when such material is filed often it tells me more about the person swearing the affidavit than about the party on the `other side.’
[5] For a recent, helpful discussion of the art of advocacy, see the collection of papers and essays in J.T. Gleeson SC & R.C.A. Higgins, Rediscovering Rhetoric: Law, Language and the Practice of Persuasion (Sydney: The Federation Press, 2008). In his typically detailed paper, Heydon J stated: “Those who wish to persuade seek to influence their hearers or readers to hold a particular opinion. Forensic advocacy is a form of persuasion directed to a particular audience. In one central meaning, forensic “rhetoric”, like other types of rhetoric, is the art of using language so as to persuade others.” Rediscovering Rhetoric: Law, Language and the Practice of Persuasion, op. cit., p.217. Emphasis added. Also by way of general reference, see Phillips J, “Practical Advocacy: The Peripatos,” (1997) 71 Australian Law Journal 346-347. His Honour said (at p.347): “... we must constantly keep in mind what Aristotle dinned into his pupils – that the essence of the art of advocacy is persuasion. How often, in our assemblage of proofs, do we substitute volume for quality? How often, in our presentation of them, does tedium dominate attraction? How often do we, in our audience, assume interest rather than earn it?”
By way of general observation, increasingly in family law litigation, regrettably it is clear that fewer and fewer practitioners have regard, or pay sufficient attention, to the High Court’s observation (admittedly in a different context) that “the best advocacy is selective and economical.”[6]
[6] Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [18] per Gleeson CJ, McHugh & Gummow JJ.
These reasons proceed as follows. First, I set out summarily an overview of legal principle through which the ensuing discussion can, and should, be viewed; secondly, I then detail the competing ‘orders sought;’ thirdly, I deal with the evidence of the parties, and more summarily with some of the supporting cast of witnesses; fourthly, I consider the evidence of the Family Consultant, Ms W; finally, I consider and apply to the facts of this case the steps to judicial enlightenment that are prescribed in the “legislative pathway” and as that pathway has been illumined by Full Court authority, such as Goode v Goode and Keach & Keach.[7]
[7] (2007) 36 Fam LR 422, especially at [10], [47], [48], [56], [81] & [82], and (2007) FLC ¶93-353 at [24] ff respectively.
B.Overview of legal principle
In Mazorski v Albright, in the light of, and by reference to, relevant Full Court authority, Brown J conveniently set out an overview of principle in relation to Part VII. Respectfully, I adopt her Honour’s summary. She said:[8]
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
[8] (2008) 37 Fam LR 518 at [3] – [6].
Her Honour also made important observations about “meaningful” as that term is used in Part VII of the Act in the context of what is comprehended by a “meaningful relationship.” Beginning at [20], through to [26], her Honour outlined a range of considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[9]
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[9] Brown J’s remarks were recently endorsed by the Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121].
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA(2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
I next set out the respective orders sought by each of the parties.
C.Orders sought
In particular, I note that between the first part of the trial, which was held in late June 2009, and the resumed hearing in late November 2009, the Respondent Father, Mr Cannon filed an Amended Minute of Orders. It will be sufficient for current purposes to record only the orders sought in this later document, filed on 9th November 2009.
Applicant’s Final Orders Sought
(1) That the child of the parties [X] born [in] 2004 live with the Mother.
(2) That the parents have equal shared parental responsibility for the child.
(3) That during 2009 the child spend time with the Father
(a) from 1:00pm Wednesday until 5:00pm Sunday each alternate weekend and continuing to 5:00pm Monday if a public holiday.
(b) at such other times as are agreed.
(4) That from 2010 the child spend time with the father
(a) from after school Friday until 5:00pm Sunday each alternate weekend and continuing to 5:00pm Monday if a public holiday.
(b) for one half of all term school holidays.
(c) for 3 periods of one week each during the summer school holidays
(d) at such other times as agreed
(5) That the arrangements under orders 2 and 3 be varied as necessary to provide that the child spends each alternate Christmas Day and the child’s birthday in alternate years with each parent and every fathers day with the father and every mothers day with the mother.
(6) That for the purposes of changeover the father collect the child from and deliver to the home of the paternal grandfather in [suburb omitted] ACT.
(7) That except in the cases of emergencies, the parents communicate with each other only by text message and that all communications between the parents be respectful and limited to issues relating to the child.
(8) That pursuant to section 121 of the Family Law Act 1975 and any applicable Rule, the mother be permitted to provide to ACT Pathology a copy of paragraph 161 of the father’s affidavit filed on 10 June 2009.
Respondent’s Orders Sought
(1) That the parties have equal shared parental responsibility for the long term care, welfare and development of the child [X] born [in] 2004.
(2) That each of the parties have sole parental responsibility for the day to day care, welfare and development of the child whilst he is in their respective care.
(3) That the child live with the father.
(4) That the child spend time with the mother as follows:
During school term:
each Wednesday from after school until 7.30pm; and
each alternate weekend from after school on Friday until 7.30pm on Sunday.
One half of all ACT school holidays with the parties to agree as to which half and in the absence of agreement, the first half.
Notwithstanding any other order, during Easter:
From 9.00am Good Friday until 5.00pm Easter Saturday in even numbered years, commencing 2010.
From 5.00pm Easter Saturday until 5.00pm Easter Monday in odd numbered years commencing 2011.
Notwithstanding any other order, during Christmas:
From 12 noon on Christmas Eve until 12 noon on Christmas Day in odd numbered years commencing 2009.
From 12 noon Christmas Day until 12 noon on Boxing Day in even numbered years commencing 2010.
Notwithstanding any other order:
On the mother's birthday from 3.00pm or after school until 8.00pm if the birthday falls on a weekday.
On the mother's birthday from 9.00am to 5.00pm if the birthday falls on a weekend.
On Mother's Day from 9.00am to 5.00pm.
On the child's birthday on [date omitted]for a period of 5 hours by agreement between the parties and failing agreement from 10am to 3.00pm.
At any other times by agreement between the parties.
(5) That notwithstanding order 4 hereof, the time the child spends with the mother be suspended during the following periods:
On the father's birthday from 3.00pm or after school until 8.00pm if the birthday falls on a weekday.
On the father's birthday from 9.00am to 5.00pm if the birthday falls on a weekend.
(c) On Father's Day from 9.00am to 5.00pm.
(6) That for the purposes of facilitating order 4 hereof the mother collect the child from the child's school or from the father's residence at the commencement of time she is to spend with the child and the father collect the child from the mother's residence at the conclusion on each such period.
(7) That the mother not take any non-prescribed and/or illicit drugs or substances while the child is with her nor for a period of 24 hours before the child is to spend time with her in accordance with these Orders.
(8) That both parties keep each other informed of their respective telephone numbers (including landline and mobile) and addresses and allow the other party to contact the child by telephone at all reasonable times while the child is in their respective care as well as facilitate the child contacting the other party at all reasonable times whilst the child is in their respective care.
(9) That each party keep the other informed of the child's health and any health issues as well as any procedures or operations to be undertaken prior to those procedures or operations being undertaken except in cases of emergency (with the party in whose care the child is in to inform the other party as soon as possible).
(10) That each party keep the other informed of the child's progress at school as well as all parent/teacher night appointments, co-curricular activities involving the child so as to provide the other with the opportunity to attend.
(11) That each party authorise the child's school to provide any and all of the information referred to in order 10 directly to each party.
(12) That each month for a period of 12 months from the date of these orders, the mother do all things necessary to undergo urinalysis screen for drugs of abuse ("the screen") with an organisation of her choice, and for this purpose the mother must:
Undertake all reasonable enquiries to ensure the procedures for the screen are in accordance with Australian Standard AS/NZS 4308:2008 or such Australian Standard as may be amended from time to time ("the Australian Standard") prior to using any organisation for the screen;
Provide a urine specimen supervised in accordance with the specimen collection procedures as set out in the Australian Standard;
(c) Provide all reports from the screen to the father forthwith upon receipt of each such report;
(d ) Forthwith direct the organisation undertaking the screen to do a confirmatory test in accordance with the Australian Standard in the event that the screen reports the need for further testing;
(e) Pay all costs associated with the screen, including any confirmatory testing of the screen if required.
(13) That the mother otherwise undertake the screen in accordance with order 0 above within 48 hours of the father providing her with a direction in writing to undertake such a screen, but the father is limited to making this direction no more than 4 times per each year.
(14) That the periods of time the child spends with the mother pursuant to these orders be subject to order 12 and order 13 and the following:
(a) The child's time with the mother is immediately suspended as follows:
(i) Upon any positive result in a confirmatory test or screen, or upon the screen returning a result requiring further testing ("the positive report");
(ii) If the mother fails to provide to the father the results of any screen or confirmatory test she undertakes in accordance with order 12 or order 13 above within 10 days from the scheduled screen or the direction to undertake such a screen.
(b) The child's time with the mother shall not recommence until the mother provides to the father:
A negative confirmatory test or subsequent screen that is provided within 2 weeks of the positive report;
Two or more negative screen or confirmatory test relating to two separate tests no more than a week apart, if the period between the first of these reports and the positive report is 2 weeks or greater.
(15) That the mother forthwith enrol in and complete a parenting course and provide written evidence of the enrolment and successful completion of such course to the father within 14 days of such enrolment and/or completion.
D.Evidence of the parties
Although I have already adverted to it, to speak somewhat generally, there was a significant volume of evidence presented to the Court, both in affidavits and in oral testimony. This evidence was from each of the parties, and a not insignificant number of other witnesses, not all of whom were required for cross-examination. Because much of the evidence was either repetitive, or illustrative, or confirmatory, of the basic issues before the Court, I need not, and will not, traverse each and every aspect of it.
In my view, the essential issues before the Court, addressed below from the evidence provided, were (a) Mr Cannon’s concern about
Ms Cannon’s drug-taking, (b) his more general concern about [X]’s care while with his Mother (and conversely, Ms Cannon’s general concern about an unbridled parental intensity of Mr Cannon and his family towards [X]), (c) Mr Cannon’s particular concern about
Ms Cannon’s [alleged lack of] attention to [X]’s health care, (and conversely, Ms Cannon’s concern at [X] being over-medicated when in his Father’s care), and (d) what might be described generally as communication difficulties between the parties. In a number of respects, although each of these matters is a significant issue on its own, they could also be considered under the general aspect of each parent’s capacity to promote [X]’s relationship with the other parent.
Ms Cannon: Ms Cannon gave her evidence over two days: 25th June and 20th November. Unsurprisingly, much (but obviously not all) of Ms Cannon’s cross-examination focussed on her drug use.
In her testimony in Court in June and November, Ms Cannon acknowledged that she had taken cannabis, and that it was wrong to do so. She said that she had not done so when [X] was in her care, that she had taken marijuana perhaps weekly,[10] that she had not used opiates,[11] and that notwithstanding her assurance not to use drugs she had occasionally used marijuana. Importantly, she also acknowledged that Mr Cannon was concerned (and understandably so) about her lapses into occasional drug use.[12]
[10][11] One drug test that showed a positive result for opiates was said to be from the use of influenza medication. Transcript (25th June 2010) p.38.
[12] Transcript (25th June 2010) p.40.
In her later oral evidence, Ms Cannon addressed later positive drug tests, and confirmed that she was undertaking (a) counselling with a person through the Drug and Alcohol program conducted by ACT Health, and (b) a parenting course for separated parents.[13]
[13] See Transcript (20th November 2009) pp.71 ff.
Ms Cannon confirmed that she agreed with the need for ongoing drug testing orders.[14] She said that she had voluntarily submitted herself to monthly drug-testing for the past twelve months and had lapsed twice.[15] She also distinguished between valid concerns from
Mr Cannon about her lapses in drug use, and what she said were the unwarranted means by which he ventilated those concerns.[16]
[14] See also Transcript (25th June 2009) p.35 & Transcript (20th November 2009) p.73.
[15][16] Transcript (20th November 2009) p.77.
Ms Cannon confirmed with Mr Cannon’s Counsel that she did not quibble with an order, as sought by Mr Cannon, that she undergo monthly drug screening for 12 months from the date of the final orders. She also said that she had no difficulty with additional, random drug screening, provided the request for any such test did not come from Mr Cannon.[17]
[17] Transcript (20th November 2009) pp.78-79.
Her cross-examination also focussed on the communication difficulties with Mr Cannon.[18] In her later evidence, Ms Cannon pointed to an improvement in communication with Mr Cannon via the communication book, but expressed concern about that improvement in the light of what she perceived from and read in the more recent affidavit filed by Mr Cannon shortly before the resumed hearing in November 2009.
[18] Transcript (25th June 2010) pp.44 & 56-60.
By way of general observation, in my view, Ms Cannon is a committed Mother of [X]. Her evidence was given in a candid manner, and her confessions of and remorse for her drug use I accept as genuine. Unfortunately, she has something of a weakness towards the use of marijuana. For the most part, I accept her assurances that she genuinely wishes to stop using that drug, on a recreational basis, or otherwise. To use an analogy from recent literature, albeit an imperfect one, Ms Cannon is like the famous J.K Rowling characters, Harry Potter and Ron Weasley who, in The Philosopher’s Stone, are caught in a twisting vine called ‘Devil’s Snare.’ The harder they struggle, the more tightly they are ensnared. Their respite or rescue, courtesy of their valiant friend, Hermione Granger, comes via the shedding of light on the treacherous vine. Like these characters and their plight, it seems to me that Ms Cannon requires some assistance to ‘kick this habit’ and break free of the ensnarement of this different form of vegetation.
Part of the curial “assistance” will come from a form of (hopefully cleansing) light, not provided by a spell from Miss Granger, but the requirement to undertake monthly drug testing for 18 months from the date of these orders. There will also need to be random drug testing for that same period, and some consequence for any positive testing, such as the recommencement of the 18 month period. For any repeated positive drug test “infringement”, there is the further risk of losing parental responsibility for [X]. The direst consequence for Ms Cannon if she continues to fail the drug testing regime would be to have [X] move to live with his Father and for her time with [X] to be both much more limited and even supervised. For everyone’s sake, I hope that it never comes to this.
Mr F: Mr F is Ms Cannon’s Father. Brief though his evidence was, he impressed me as a very fair-minded man. Indeed, without casting any negative view over other witnesses, where there is any contest between, for example, the evidence of Mr F and Mr C, I prefer that of Mr F.
Mr F readily acknowledged that, at times, his daughter has had issues with the use of marijuana. It also seemed not disputed by anyone that he (and his wife – Ms Cannon’s step-Mother – who was not on affidavit) has considerable involvement in the care of [X] and in their support for Ms Cannon.[19] For example, when Mr Cannon was living in Sydney, for a significant amount of time, and in view of the discord between the parents, it would seem that Mr F has been a central person to facilitate ‘hand-overs’ with [X].
[19] In written submissions on behalf of Mr Cannon, I was asked to draw an adverse inference, based on the ‘rule in Jones v Dunkel’ (1959) 101 CLR 298, against Ms Cannon because of her failure to call her step-Mother and any treating medical practitioner “that provided her with counselling and or support in relation to her drug use....” Leaving aside any relevant operation of s.69ZT of the Act, firstly, the relevant medical records were before the Court and ‘speak for themselves’; secondly, accepting that one might have expected Ms Cannon’s step-Mother at least to put affidavit evidence before the Court, given that Mr F, Ms Cannon’s Father, gave evidence, and did so because he has been an integral person in many of the arrangements regarding [X], and given the abundant other evidence before the Court from both sides, it is somewhat difficult to see what more could have been gleaned from the alleged missing evidence. Moreover, it is clear that the rule I was asked to apply operates only in circumstances where a party is “required to explain or contradict” something. See Jones v Dunkel at p.321, and the discussion in Cross On Evidence (Eighth Australian Edition) (J.D. Heydon) (Sydney: Lexis Nexis Butterworths, 2010) pp.39-46 [1215]. It was not indicated what Ms Cannon’s step-Mother would or could explain or contradict in the light of the other evidence before the Court. In my view, in circumstances where there is significant evidence before the Court and no specific question or gap in the evidence identified that required answering, a general submission based on Jones v Dunkel, without more, should not be made. Accordingly, in the circumstances, I decline to make such an adverse finding.
Mr F confirmed his preparedness to “bury the hatchet” in relation to a number of testing incidents with certain members of Mr Cannon’s family, and with Mr Cannon himself.
In my view, Mr F very fairly described much of the “confrontational point scoring” (his words) in these somewhat long-running proceedings as being a manifestation of Mr Cannon’s anger and frustration.[20] To a degree, I agree.
[20] Transcript (26th June 2009) p.10.
Permit me to record that, in my view, Ms Cannon is very fortunate to have Mr F as her Father.
Mr Cannon: I have already indicated that Mr Cannon’s evidence was extensive, both in the volume of his affidavit material, and in his oral evidence at trial, given over two days (26th June & 20th November), and differentiated by his changed living circumstances – originally living in Sydney with his sister, latterly living in Canberra with his fiancée. Indeed, precisely because Mr Cannon has moved to Canberra, those parts of his cross-examination that were predicated upon him residing in Sydney can be left to one side.
Notwithstanding the volume of evidence, the central tenets of it – positive and negative – remained rather settled and confined. Summarily stated, the essential elements of his evidence were focussed on (a) Mr Cannon’s concern about Ms Cannon’s drug-taking, (b) his more general concern about [X]’s care while with his Mother, (c) his particular concern about Ms Cannon’s attention to [X]’s health care, and (d) what might be described generally as his communication difficulties with Ms Cannon. In a number of respects, although each of them is a significant issue on its own, as I noted at the outset of these reasons, these matters may, among other things, also be considered under the general aspect of Mr Cannon’s capacity to promote [X]’s relationship with his Mother while in his care. The converse, of course, also applies.
A number of these same concerns featured in the evidence of
Mr Cannon’s ‘supporting witnesses’, namely, his sister, Ms C, and his fiancée, Ms M. To varying degrees, their evidence was dependent upon what they had been told by Mr Cannon. To that extent, their evidence added little value to the proceedings. In my view, given also that
Ms C’s evidence related to events, by and large, which occurred when Mr Cannon lived with her in Sydney, which has not been the case for some little time now, the only person from this duo whose evidence warrants brief consideration is Ms M, which I will come to shortly.
A third witness on behalf of Mr Cannon was Mr C. His evidence related to a particular conversation with Mr F. In my view, little turned on that contribution. Accordingly, I leave his very brief evidence to one side also.
One other matter should be noted before considering his evidence on the principal issues before the Court. There is no doubt that
Mr Cannon is a highly motivated parent, and that he seeks to ensure that [X]’s care is always of the highest standard, with absolutely nothing left to chance. Indeed, so focussed is Mr Cannon, he confirmed that if orders are made in separate family law proceedings that necessitated his fiancée returning to Sydney, he would remain in Canberra.[21] Although not put in these terms, this seemed to suggest that Mr Cannon would [potentially] risk his future marriage to Ms M for the sake of [X]. It is not appropriate to comment further.
[21] See Transcript (20th November 2009) pp.42-43.
I have already remarked on the extremely lengthy affidavit material of Mr Cannon, of over 200 paragraphs, in which he provides what might be described as a ‘fine-grained’ critique of Ms Cannon’s parenting. Unfortunately, when he was cross-examined, his recollection of many events and details was quite poor. Indeed, on multiple occasions he simply stated that he ‘did not recall’ the event in question.[22]
[22] See, for example, the various questions put to him in the course of cross-examination: Transcript (26th June 2009) pp.33, 34, 36, 37, 40, 41, 58, 60, 70.
In drawing attention to these difficulties of recollection, I do not suggest that Mr Cannon was seeking either to evade answering a question, still less to mislead the Court. It may be, and more likely was, the case that his recollection was hampered or clouded by the tumult and litigious (and psychological) dust caused by the contest in Court. To some degree, it may also have been the case that, in crafting his affidavit material, he was simply but completely focussed to record as many adverse details against Ms Cannon as possible. Indeed, Counsel for Ms Cannon made this point repeatedly during the trial. To some degree, it is difficult to escape such a conclusion.
In any event, it was somewhat surprising how so much detail was put into the affidavit material, yet how often that detail escaped Mr Cannon when in the witness box. Indeed, I often had the impression that he was somewhat torn: on the one hand he wanted to ensure that all relevant (and not so relevant) detail was before the Court, but on the other hand, from time to time he acknowledged in the witness box what a genuinely caring and loving Mother Ms Cannon is to [X].
Perhaps such matters are part of what the Family Consultant, Ms W, described when she said that it was still somewhat early days in the recovery of the broken relationship between [X]’s parents. Indeed, quite fairly, Mr Cannon acknowledged as much, and also said that he regretted some of the ‘text-messages’ he had sent Ms Cannon.[23] Indeed, some of them were cruel and hurtful. I will not dwell on them here.
[23] See, for example, Transcript (26th June 2009) pp.23, 31 & 32.
Leaving aside the issue of Ms Cannon’s drug taking, it may be possible to consider the other issues to which I have referred more generally from the perspective of the quite different parenting styles of [X]’s parents. In my view, in the light of the evidence before the Court, there is no doubt (as I have said) that Mr Cannon takes a much more intense approach to parenting than does Ms Cannon.[24] In not the same words, it would appear that the Family Consultant, Ms W, would take something of the same view. In due course, the issues surrounding the different parenting styles could also be said to involve, to a significant degree, the “willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent.”[25]
[24] Indeed, Mr Cannon agreed with this assessment in questions/propositions that I put to him in the course of cross-examination. See Transcript (20th November 2009) p.17.
[25] S.60CC(3)(c). See also s.60CC(3) (i) & 60CC(4)(b).
Indeed, some of the more specific issues to which I have earlier referred are conveniently summarised in the following comment by
Mr Cannon from an early part of his cross-examination. He said:[26]
I believe there are issues there with the parenting in Canberra that need to be dealt with. It can be dealt with. But I think that takes – that’ll take some work. I don’t believe [Ms Cannon] is entirely neglectful to [X]. She loves [X]. She’s a loving Mother but there are issues there that need to be addressed. [X]’s not starving or anything like that. But, you know, to some degree, there is neglect there. That’s my opinion.
[26] Transcript (26th June 2009) p.18.
Summarily, I note the following from Mr Cannon’s evidence. Given its volume, and in a number of respects, its repetition, my treatment is somewhat selective and confined to matters that are either illustrative of other, similar evidence, or specifically germane to the issues before the Court.
First, Mr Cannon confirmed that he had tried or used illicit drugs a number of times, although he had denied ever having done so in his primary, trial affidavit.[27]
[27] Transcript (26th June 2009) p.25.
Secondly, he also confirmed that he had over-dosed on prescription and other drugs around the time of the break-up of the relationship with
Ms Cannon.[28]
[28] Transcript (26th June 2009) pp.28-29. It also seemed not to be disputed that, in or around October 2008, Ms Cannon was suffering from depression and, at one stage, presented to hospital with thoughts of self-harm.
Thirdly, he had contacted the ACT department responsible for child welfare to advise it of ‘numerous men at [Ms Cannon’s] house’, when in fact he had knowledge of perhaps only one male visitor to
Ms Cannon’s residence.[29]
[29] See Transcript (26th June 2009) pp.35 & 43.
Fourthly, Mr Cannon also had [X] tested for drugs “because he believed his Mother was using.” Mr Cannon though that it was his duty, as [X]’s father, to test for drugs on his son.[30] This drug testing was not discussed with Ms Cannon at any stage.
[30] Transcript (26th June 2009) p.41.
Fifthly, Mr Cannon agreed that he was highly critical of Ms Cannon, particularly in relation to health care for [X]. This was so notwithstanding that, because of work commitments, he was unable to take [X] to certain medical appointments and required the assistance of his sister (with whom he lived for two years or more in Sydney) to take [X] to them.[31] He has described Ms Cannon as a “neglectful parent.”
[31] Transcript (26th June 2009) pp.61-62. See also the somewhat remarkable incident, which I will not otherwise canvass, which was the subject of extensive cross-examination in the resumed part of the trial last November, regarding [X]’s sore throat and a fever, and the various attempts to treat it – and to use it against Ms Cannon. For my part, I would simply observe that I consider Ms Cannon’s account of events and her response to be the more appropriate in the circumstances. See Transcript (20th November 2009) pp.3-11.
Sixthly, it was not disputed that a scheduled operation for [X] was cancelled by the treating surgeon because of the level of conflict between the parents.[32]
[32] Transcript (26th June 2009) pp.62-65.
Seventhly, Mr Cannon confirmed that he considered that a counsellor was required to assist in dealing with whether, and if so when and how, five year old [X] should be weaned from taking a night bottle of milk. Ms Cannon considered that [X] did not need it; Mr Cannon considered (in my words) that [X] has/had such a range of issues to contend with that the bottle was still required.[33]
[33]Eighthly, in part because of cultural reasons, and in part because of his mis-trust of Ms Cannon, Mr Cannon considered that it was not appropriate for [X] to have a “sleep-over” at a friend’s house “unsupervised.” In his view, either he or Ms Cannon should also have been part of the “sleep-over.” I note here that, in the course of this part of his cross-examination, I expressed my concern about a parent seeking to invite themselves to attend a sleep-over with one of their children. In my view, it is one thing for a parent to attend, for example, a children’s party. It is quite another thing for a parent to invite themselves to a child’s sleep-over. Allowing for every cultural consideration from Mr Cannon’s obviously strong Italian background, it is difficult to ignore my astonishment at Mr Cannon’s evidence in this regard.[34] My incredulity was intensified because Mr Cannon said that he trusted Ms Cannon’s judgment not intentionally to place [X] in any position of danger or peril – but nonetheless insisted that he would not allow such a sleep-over without him also sleeping over.[35]
[34][35] Transcript (20th November 2009) p.27.
Ninthly, while in some ways trivial, in other ways the following instance is illustrative of the intense, almost obsessive parenting of
Mr Cannon which, in my view, leads to degrees of jaundiced judgment, and hyper- and unjustified criticism of Ms Cannon. In the course of his evidence, Mr Cannon complained about inadequate food quantity for [X] when he was in his Mother’s care, and that Ms Cannon had also fed him food (such as yoghurt) that contained [artificial] food colouring. At the same time, a photograph was tendered which showed a birthday cake at a party with Mr Cannon’s family which clearly had coloured icing on it.[36] The point was made to Mr Cannon that it seemed to be acceptable for food with colouring to be served to [X] when it came from his family, but not if it came from Ms Cannon.[37]
[36] The photograph became Exhibit G.
[37] See Transcript (20th November 2009) p.29.
Finally, and in short: I consider Mr Cannon to be a highly committed Father. He brings a level of intensity which, in my view, in a number of respects, has coloured his parental judgment to a significant degree. I have no doubt that he seeks only the very best for [X], in every respect. However, his intensity, together with his on-going mis-trust of Ms Cannon, makes for a rather potent parenting cocktail. Like cocktails, in small quantities, they can be colourful and, in some ways, refreshing. However, they do not make – in the short- or long-term - for a balanced, nutritious diet.
Mr Cannon gave his evidence truthfully. However, it seems to me that, at times, his judgment has been flawed in relation to [X]. In my view, the intensity of his parenting, over time, risks smothering [X] and, perhaps, causing not a few other problems as well. Children need a certain freedom and relaxation; they do not, and cannot, blossom when they are subject to a constant, almost microscopic examination from parents. What might be described as over-protective or claustrophobic parenting can cause as many problems as it seeks to prevent. In my view, such are the risks for [X] in the light of Mr Cannon’s very strong parenting approach.
I readily accept Mr Cannon’s understandable concerns in relation to
Ms Cannon’s drug taking. They are proper, even if some of his responses have been severe and somewhat disproportionate. He should be assured by the protective measures the Court will now put in place in relation to Ms Cannon’s drug taking. They are designed to ensure [X]’s protection, accepting that, in my view, there is no evidence that [X]’s care and welfare has been compromised while in his Mother’s care. Indeed, one of the final exhibits (“H”) was a recent photograph of [X]. He hardly looked a deprived, under-nourished or sickly child; quite the contrary in fact. Mr Cannon agreed.[38]
[38] Transcript (20th November 2009) p.30. The exact words used by Counsel to describe [X] were “lovely, robust, healthy little boy.” Mr Cannon readily agreed, saying: “Yes, he is.”
Over time, especially for [X]’s sake but also for the sake of his parents, and with the aid of therapeutic intervention, the parties need to find a base from which they can re-build a civil and trust-worthy relationship. Orders will be made to assist in this regard, but ultimately, the responsibilities, decisions and consequences remain with Ms Cannon and Mr Cannon.
Ms M: Ms M is Mr Cannon’s fiancée. She has one young child from her former marriage. Her child, [Y], is aged 4, almost 5. I understand that she remains involved in proceedings that arise out of that previous relationship and which are still before this Court in Parramatta for final determination. I understand that [X] and [Y] have a close relationship. Such an assertion has not been professionally tested, or challenged for that matter.
Ms M is a [occupation omitted]. Her comments of concern in relation to [X] being in the care of his Mother seemed to me to be, to a significant degree, dependent on what she had been told by
Mr Cannon. This is to say that she could have no direct knowledge of Ms Cannon’s use of drugs or alcohol. That said, she made a number of comments in her affidavit of [X]’s behaviour based on her observation. These comments related, among other things, to [X]’s language. They were not the subject of cross-examination.
Of rather more concern was the fact that, without any reference to
Ms Cannon, and without having met her, she made a report to the ACT Office of Children, Youth, and Family Services. She did so, she said, because of her concerns for [X]’s health.[39]
[39] Transcript (20th November 2009) pp.68 ff.
For my part, this was not an appropriate first course of action. It suggested to me that this was another form of “intense parenting”, albeit from a slightly different but obviously related quarter, of the kind to which I have referred earlier. A “report” to a government child welfare department, one would think, is not the usual or preferred first port of call, except in extreme or otherwise appropriate circumstances. This is not such a case.
I have already indicated that I do not propose traversing the evidence of Ms C or Mr C. It is no slight to them. In my view, their evidence added little, if anything, to the significant evidence already before the Court from the principal witnesses.
E.Evidence of Family Consultant
Summarily stated, Ms W confirmed the following in her oral evidence at the trial.[40]
[40] Ms W’s evidence is located at Transcript (25th June 2009) pp.7-27. It should be noted that, at the time Ms W gave her evidence, the competing applications before the Court were predicated upon, and the evidence confirmed, that Mr Cannon was residing in Sydney. As already stated, that is no longer the case. The Family Report of Ms W became Exhibit D in the proceedings.
First, she confirmed that, in her view, [X] has a secure relationship with both parents.
Secondly, she also confirmed that there was a very significant level of acrimony between the parents and which, from what she observed and from what she was advised by the parties, was more pronounced from Mr Cannon to Ms Cannon. Indeed, she observed that “... if affidavits of that sort of length [220 pages from Mr Cannon] all of a hostile nature toward one of the parents is being filed, I would be concerned that that level of hostility is so great that it will have an affect on [X].”[41] Ms W agreed with questions from Counsel for Ms Cannon that Mr Cannon was both angry with and distrusted Ms Cannon.
[41] Transcript (25th June 2009) p.8.
Thirdly, at a little length, Ms W spoke of being impressed by
Ms Cannon and her focus on [X]’s needs. This was also to say – which Ms W did say – that she noted Ms Cannon’s impressive capacity to put to one side the conflict between she and Mr Cannon and to focus on [X]. At the same time, Ms W spoke of her concern regarding
Mr Cannon’s inability to acknowledge the importance of Ms Cannon’s relationship with [X]. She also confirmed that, in her view, in the light of certain events on the day she saw the parties, Mr Cannon had an over-riding pre-occupation with his time with [X], and, quite significantly in my view, that he seemed to lack, or had limited, reflective capacity that would enable him to put [X]’s needs above his own.[42]
[42] Transcript (25th June 2009) pp.9-10.
In answer to questions from Counsel for Mr Cannon, Ms W confirmed that it was not her usual practice to review the affidavit material prior to seeing the parties. She confirmed that she had access to that material. Likewise, although she had access to material produced on subpoena, she did not, as a matter of course, consider it. In the light of questions and answers of this kind, she readily agreed with a further question from Mr Dura (Counsel for Mr Cannon) that her observations were necessarily a snapshot based on her interactions with and observations of the parties (and [X]) on the day of the family conference.
Should it need to be observed, Ms W is a family consultant of very significant experience.
In answer to further questions, she confirmed that there was nothing in her Report that suggested that the conflict between the parties was likely to abate. She also agreed that concerns by Mr Cannon about
Ms Cannon’s drug taking and parenting were proper to raise with her.
Ms W qualified this by adding that these concerns were raised in the context of her observation of the acrimony between the parties. She said: “... the father makes a number of not just claims about health, but suggestions that the mother is less able to care for this child than he is, and that his relationship is in some way more special than her relationship with the child.”[43]
[43] Transcript (25th June 2009) p.14.
Ms W also noted her concern at an incident where Mr Cannon returned his wedding ring to Ms Cannon by placing it in [X]’s bag. I asked her questions about the risks of using [X] as a conduit, particularly in this instance of such a symbolic and significant item, and the risks of such conduct in the event that [X] found the ring. She remarked on those risks for [X].[44]
[44] Generally, see the discussion at Transcript (25th June 2009) pp.14-15.
Ms W also commented that she would be concerned if Ms Cannon’s drug use impaired her parenting. She also confirmed that, according to Mr Cannon, uppermost in his mind was not Ms Cannon’s drug-taking but [X]’s health and, in Mr Cannon’s view, the Mother’s lack of diligence to it. At the same time, Ms Cannon contended that
Mr Cannon is over-protective of [X] and over-medicates him. These matters were also the subject of discussion with Ms W. She confirmed that [X]’s health was a significant area of conflict between the parties.[45]
[45] See Transcript (25th June 2009) pp.20-21.
Mr Dura questioned Ms W about a circumstance, which has now come to pass, of Mr Cannon residing in Canberra. He asked whether a somewhat circumscribed regime of time between [X] and his Father, such as each alternate week-end and half of the school holidays, would be appropriate in such circumstances. Ms W confirmed (and later repeated her expert opinion) that it would “[i]f the relationship between the parents continues to be as bad as it is at present....”[46]
[46] Transcript (25th June 2009) p.22.
She also observed that an extra night per fortnight for [X] with his Father would likely not make very much difference at this stage, especially given that there will likely be a significant change in circumstance with [X] going to school.
Finally, provided that the acrimony between the parties subsides and a civil relationship between the parties is able to be developed, and some of the so-called ‘usual strategies’ were employed (such as change-over at school, non-denigration orders, and the like), Ms W unsurprisingly agreed that an increase in time between Mr Cannon and [X] was appropriate.
In short, (in my words) extra time between [X] and Mr Cannon – perhaps ultimately even moving to a shared-care/equal time arrangement – was entirely dependent on the acrimony between the parties diminishing and that the parents can co-operatively parent.[47] In my view, that time has not yet arrived.
[47] Transcript (25th June 2009) p.23.
I need to address one other matter involving Ms W’s evidence. Counsel for Mr Cannon submitted, on the one hand, that the Court should be “cautious” in its treatment of her evidence. This was so, Counsel said, inter alia, because she did not inspect any of the material produced under subpoena, nor did she read any of the affidavits filed in the proceedings prior to seeing the parties for the purposes of the family conference, nor prior to preparing the Family Report.[48] Counsel also submitted that there was no discussion with the parties regarding Ms Cannon’s drug use and any possible impact it may have on her ability to parent [X] adequately. In short, Counsel submitted that
Ms W “failed to carry out her task in a complete and thorough manner.”[49]
[48] I have previously noted that the Family Report was admitted into evidence and became exhibit D.
[49] See Counsel’s Submissions, filed 11th January 2010, par.10.
On the other hand, notwithstanding his reservations with or objections to the Family Report, and the evidence more generally of Ms W, Counsel for Mr Cannon nonetheless sought to draw a number of favourable things from her Report, such as the close and secure attachment [X] has with both of his parents and that (so it was submitted) “[X] is not at risk should he spend more time with the father.”
A number of the complaints just noted were put to Ms W at trial. She confirmed that it was not her usual practice to read affidavit material, or to look at documents produced under subpoena, unless directed by the Court to do so.[50]
[50] See Transcript (25th June 2009) pp.11-12.
For my part, I had no such difficulties with the evidence from Ms W. From my consideration of both the affidavit material and the oral evidence of the parties, my general assessment of the parties accords with that reached by Ms W. And in relation to Ms Cannon’s drug use, Ms W was cross-examined by Mr Dura about the relevance and impact of that. She confirmed that her assessment assumed that there had been a history of drug use.[51]
[51] See, for example, Transcript (25th June 2009) p.19.
In short, I do not accept the criticisms levelled at (a) the content of the Family Report, (b) its preparation, or (c) Ms W’s evidence at trial. As a very experienced Family Consultant, I am entitled to, and do, rely upon her expert evidence. Moreover, there was no “alternative” expert report, or other evidence, provided to the Court.
I turn now to consider the prescribed pathway in the light of my consideration of the evidence above.
F.The legislative pathway
The objects and principles to be applied in this case are set out in ss.60B(1) and (2); the primary considerations to which the Court must have regard are located in ss.60CC(1) and (2) of the Act. They have been conveniently summarised earlier in these reasons in the extract from Brown J’s judgment in Mazorski v Albright. It may be said that those objects and principles, and the primary considerations, are buttressed by and or explored in the Court’s attention to the additional considerations in s.60CC(3). I turn to these “additional considerations” now. Unless otherwise specified, I will deal with the sub-paragraphs of that sub-section in order.
There are no views of the child to consider in this case. There is also no need to question that [X] has a good, close and sound relationship with both of his parents, and for that matter, it would seem, also with his relatives on both sides of his parents’ families.
I have already indicated a number of features about the relationship of [X]’s parents. In the light of the comments I have already made about their evidence, the greater capacity to promote [X]’s relationship with the other parent is decidedly with Ms Cannon. I understand, for reasons already given, why, on one level, Mr Cannon is concerned for [X] while in his Mother’s care, accepting that there was no dispute that she has been, and remains, his primary carer. The concern relates, of course, to her recreational drug-taking. I have also previously stated that there is no evidence before the Court of any harm that has befallen [X] while in his Mother’s care. Indeed, Mr Cannon acknowledged that [X] is a ‘robust, healthy little boy.’
I have also repeatedly remarked on Mr Cannon’s intense approach to parenting. In my view, it is far too intense and risks more than it genuinely seeks to achieve in caring for [X]. It is clearly a very significant cause of difficulty and conflict between the parties, so different are their approaches to parenting. Indeed, unlike some cases where it is possible to do so, it would be benign if not naïve to consider the differing approaches to parenting in this case as simply “complementary.” They are not. All of this said, it is to be hoped that (a) with the benefit of post-separation parenting courses, as well as (b) genuine glimmers of co-operation between the parents from time to time, and (c) once the stress of litigation is over, and (d) as [X] grows older and becomes more settled, greater stability and less volatility between the parties will develop.[52]
[52] The comments here, which refer specifically to the considerations embraced by s.60CC(3)(c), should also be taken to apply to s.60CC(3)(i), and s.60CC(4) & (4A).
In my view, it is unnecessary to labour in this case the self-evident points made often enough in signal studies, about the risks to children who are embroiled in conflict between their parents.[53] It is time for the contests between [X]’s parents to abate (and to do so as soon as possible) and ultimately to cease.
[53] See, for example, any of the following studies: T. Altobelli FM, “A response to `A Cautionary Tale’: Learning to paint with a fine brush,” presentation to the 8th Annual Family Law Intensive, Sydney; R. Kaspiew, “Empirical Insights into Parental Attitudes and Children’s Interests in Family Court Litigation,” (2007) 29 Sydney Law Review 131; J. McIntosh and R. Chisholm, “Shared Care and Children’s Best Interests In Conflicted Separation: A Cautionary Tale from Current Research,” (2008) 20 Australian Family Lawyer 3-16.
The orders I propose provide for quite little change in [X]’s circumstances. Indeed, because Mr Cannon now lives in Canberra, there is significant opportunity, over time, for greater co-operation between the parties, for [X]’s benefit. Although not formally before the Court, there was some evidence of this referred to by Mr Cannon in his recent application to re-open and adduce further evidence.
For the same reasons of (a) Mr Cannon now living in Canberra, and (b) the limited changes in the care and living arrangements, issues of practical difficulty and expense do not arise in this case.
Although Mr Cannon raised issues about Ms Cannon’s capacity to provide adequate care for and otherwise to meet the needs of [X], in my view, his agreement with the description of his son as a ‘robust, healthy little boy’ militates against any such finding. Conversely, it more than suggests that [X]’s various needs are more than being met in both households.[54]
[54] The same comments apply to the considerations under s.60CC(3)(g) as they do under s.60CC(3)(f). Indeed, in the course of his cross-examination, Mr Cannon said, very straight-forwardly and without hesitation, “... I’ve never said that she [Ms Cannon] was not a good mother.” Transcript (26th June 2010) p.66.
Finally, Ms Cannon, with the on-going aid of her parents, and with the assistance of appropriate therapeutic intervention, needs to take responsibility for her drug-taking and the potential risks it poses for her own health, as well as for [X]’s care. Her responsibility as a parent, as [X]'s Mother, must take precedence over any fleeting enjoyment or escape provided by her sometime use of marijuana. Failure to take this responsibility risks a great many things – not least her parental role for [X].
The orders I propose are, in my view, the least likely to lead to on-going litigation. In my view, they are in [X]’s best interests.[55]
[55] See s.60CA.
The final matters to address concern equal shared parental responsibility, and whether an equal time, or substantial and significant time, order should be made, in accordance with s.65DAA, and in the light of the High Court’s recent consideration of that section in MRR v GR.[56]
[56] (2010) 263 ALR 368; (2010) 42 Fam LR 531. For a recent, brief discussion of this important case, see R. Chisholm, “The High Court Rules on s.65DAA and, Perhaps, an [sic] Relocation: MRR v GR,” (June 2010) 237 Australian Family Law Bulletin 7-8.
Both parties seek an order for equal shared parental responsibility. Such an order will be made.[57] The making of such an order requires the Court to consider the terms of s.65DAA.
[57] See s.61DA.
In MRR v GR, at [13], the High Court said:
Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent. (Internal citations omitted.)
The Court went on to say, at [15]: “Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s.61DA(1) is not determinative of the questions arising under s.65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.”
On the evidence before the Court, not least being the expert evidence of Ms W, in my view, at this stage, an equal time arrangement is not in [X]’s best interests. If the Court could be satisfied that (a) Mr Cannon’s extremely intense approach to parenting could be relaxed, and (b) the parties could communicate and co-operate in a more civil and business-like manner, and do so regularly, such an order would not be out of the question. Indeed, as [X] gets older, and assuming there is reasonable progress in the areas I have indicated, including Ms Cannon’s satisfactory completion of the drug-testing regime established by the orders of the Court, it is more likely than not that such an order should be made in the not too distant future – and hopefully by consent. But as I have repeatedly said, that time has not yet arrived.
In the absence of an equal time order, s.65DAA(2) requires the Court to consider an order for substantial and significant time with both parents in circumstances where it is in the child’s best interests to do so, and that it is reasonably practicable for that to occur.
Given that (a) both parents now live in Canberra, and (b) [X] has been spending four nights per fortnight with Mr Cannon (plus some other times informally arranged between the parties), and (c) given that it was the subject of some discussion with Mr Cannon in the course of the trial, including his stated willingness to continue to co-operate with Ms Cannon,[58] in my view, the orders proposed satisfy the requirements of s.65DAA, including sub-section (5). In the absence of agreement between the parties, the orders provide for [X] to live with his Mother, and to spend five nights per fortnight with his Father. The configuration of those five nights is to be agreed as between the parents. Presumably it would be in a block period so as to avoid unnecessary changeovers and would embrace week-end time in conformity with the provisions of s.65DAA(3).
[58] In this regard, I note that written submissions from Counsel for Mr Cannon confirm that the issue of [X]’s health care has been resolved between the parties by agreement to appoint a single general practitioner for him. To state the obvious, this is an encouraging development.
Subject to (a) completion of the ARCK (or equivalent) program (noted below), and (b) Ms Cannon satisfactorily completing the drug testing regime put in place by these Orders, in the absence of agreement, in eighteen months from the date of these Orders, with the assistance of private mediation, the parties are to negotiate an increase in the time that [X] spends with his Father. I would envisage (but not make orders to this effect at this time) that this increase will progress by one extra night every three months until it becomes an equal time arrangement. I stress however that such possible increases in time are predicated upon changes occurring in the lives of both parents. Co-operative parenting means what it says: “co-operation” between parents is fundamental and in the best interests of all.
I also order that both parents are to undertake a post-separation parenting program (ideally the ARCK program).
Drug Testing Regime: Ms Cannon’s drug testing regime is to be as follows: each month, she is to undergo urinalysis. In relation to this test, she can choose the date and time. In addition, every second month, for a period of 18 months, she is to be subject to a random drug test, to be initiated by a nominated representative of the ARCK (or similar) program. That test is to be completed within 48 hours of the request. The results of all drug screens are to be provided to her solicitor within 48 hours of them becoming available, and that person is to provide them to Mr Cannon’s solicitors within 24 hours of their receipt.
Further, nine (9) months after the date of these orders, Ms Cannon is to undergo hair follicle testing and to provide the results of that testing in accordance with the directions in the previous paragraph. Then, in 18 months from the date of these orders, she is to undergo the same hair follicle testing regime, and provide the results as previously indicated.
In the event that Ms Cannon provides two positive drug test results within a three month period, the period of her drug testing regime will automatically recommence.
If there is a second instance of two positive drug tests within a three month period, a self-executing order will come into effect whereby sole parental responsibility for [X] will vest in Mr Cannon.
If there is a third instance of two positive drug tests within a three month period, a further self-executing order will come into effect whereby [X] will live with his Father and spend time with his Mother, that time to be supervised, until she provides 12 months of uninterrupted, clean drug test results.
G.Conclusion
In my view, notwithstanding the concerns I have expressed in relation to both parents, I have discerned sufficient indications of capacity in both parties to have a degree of optimism that they will be able to put aside their respective difficulties and obstacles for [X]’s sake. It will do their lives no end of good also to end the contests, so that they can get on with their lives, free from litigious entanglements – or of any other kind.
I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of Neville FM
Date: 17 July 2010
In the course of cross-examination, Ms Cannon admitted that there was a period in 2008 when she had taken marijuana more frequently than once per week. See Transcript (25th June 2010) p.50. She also acknowledged that notes produced by her general practitioner record the GP noting that
Ms Cannon did not want to give up marijuana but that she was being forced to do so. See the notes of
Dr S, Exhibit B.
See Transcript (20th November 2009) pp.73. Counsel for Mr Cannon rightly pointed out to
Ms Cannon that there were, in fact, Court orders in place that required drug testing.
See the discussion at Transcript (20th November 2009) pp.16-17. The “issues” to which I refer relate to [X]’s mood swings, hitting children at school, and breaking toys, according to the evidence of
Mr Cannon and Ms M.
See Transcript (20th November 2009) p.27. The sentence from his affidavit that was read to
Mr Cannon in the course of his cross-examination stated: “I would never leave [X] to sleep at someone else’s home without me being there overnight.” Ibid.
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