D’Abreo and Cantwell
[2011] FMCAfam 1504
•21 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| D’ABREO & CANTWELL | [2011] FMCAfam 1504 |
| FAMILY LAW – Competing parenting applications – allegations of serious domestic violence – lack of affidavit evidence of domestic violence. |
| Family Law Act 1975, ss.4, 60B, 60CA, 61DA, 65F, 69ZX, 69ZW, 65DAC, 65DAA, 60CC, 91B, 117 |
| Browne & Dunn (1893) 6 R 67 (HL) Goode & Goode (2006) FLC 93 – 286 Marvel & Marvel [2010] Fam CAFC 101 Minister of Immigration v Teoh (1995) 183 CLR 273 B & B and Minister of Immigration & Multicultural and Indigenous Affairs [2003] FamCA 621 Johnson & Page [2007] FamCA 1235 Mazorski & Albright [2007] FamCA 520 Jones & Dunkel (1959) 101 CLR 298 Casley & Casley (costs) [2010] FamCAFC JJT ex Parte Victorian Legal Aid [1998] FLC 92 - 812 |
| Applicant: | MR D'ABREO |
| Respondent: | MS CANTWELL |
| File Number: | PAC 2668 of 2010 |
| Judgment of: | Harman FM |
| Hearing dates: | 28, 29, 30 November 2011and 12 December 2011 |
| Date of Last Submission: | 12 December 2011 |
| Delivered at: | Parramatta |
| Delivered on: | 21 December 2011 |
REPRESENTATION
| Counsel for the Respondent: | Mr Cooke |
| Solicitors for the Respondent: | Adams & Partners Lawyers |
ORDERS
That all prior parenting orders with respect to the children:
X born (omitted) 1996; and,
Y born (omitted) 2004,
shall be and are hereby discharged.
The applicant father, Mr D'Abreo, shall have sole parental responsibility for X and Y.
X and Y shall, as and from 5 pm on 15 January 2012, live with their father.
X and Y shall spend time with their mother:
(a)as regards X, he shall spend such time with his mother as he may arrange and organise with her and in accordance with his wishes;
(b)as regards Y:
(i)from the date of these orders until 5 pm, 15 January 2012;
(ii)as an from the commencement of term 1 2012:
A.For the first half of each short New South Wales School holiday period from no later than midday on the first Saturday until no later than 5 pm on the middle Sunday of the holiday period.
B.For a period of three weeks during the Christmas school holiday period in each year to commence, absent agreement between the parents, no later than 12 noon 27 December and to conclude no later than 12 noon 17 January following.
For the purpose of school holiday time Y is to spend with his mother, Y shall travel between the father and mother by air with the mother to be responsible for arranging booking and paying for those flights not less than 21 days prior to the commencement of each period and each parent shall ensure that Y is then placed on each flight between his parent’s homes and collected from each flight on arrival.
In the event that any child support assessment should issue requiring payment by the mother to the father, then I note that it is intended and the appropriate responsible officer of the child support agency is requested to give effect to such intent, that all costs incurred by the mother in spending time with Y pursuant to these orders is to be credited against such liability.
Notwithstanding the above orders, the father shall be responsible for arranging, booking and paying, for Y’s flight from (omitted)/Canberra to (omitted) on or prior to 15 January 2012.
Each parent should be entitled to communicate with Y by telephone each Tuesday, Thursday and Saturday and with respect to same:
(a)each parent shall ensure that they advise the other and keep the other advised at all times of the telephone number upon which telephone communication with Y shall occur;
(b)each parent shall ensure that that telephone service is free to 7.30 pm each Tuesday, Thursday and Saturday;
(c)shall allow Y to speak with the other parent with privacy and without interruption or distraction.
Each of the mother and father shall be and are hereby restrained from:
(a)Consuming alcohol to excess whilst soever Y is in their care.
(b)Using any illicit drug or any prescription or patent medical other than in accordance with prescription or recommendations for use during or for seven days prior to any period that Y is to be in their care
(c)Physically disciplining or chastising Y.
(d)Discussing these proceedings or any issue or allegation raised therein or denigrating, insulting or speaking badly of the other parent or X to or in the presence or hearing of Y.
The mother shall do all things within her power to ensure that each of the above restraints is made known to and followed by her partner, Mr B.
Each parent shall keep the other advised at all times of their residential address and the address at which Y will be living whilst in their care and provided, however, that pursuant to s.68B of the Family Law Act 1975, each shall be restrained from approaching or attending at that address or encouraging, directing or commissioning any other person to do so.
Each of the parents shall do all things and sign all documents necessary to:
(a)Affect a transfer of Y’s school enrolment from his present school to such school as he is enrolled in by the father in (omitted).
(b)Ensure that each parents details are recorded with the school to be attended by Y as his parent and emergency contact person
(c)Enable each parent to obtain such information, reports or other materials as the school may issue or offer from time to time.
(d)Each parent shall advise the other forthwith and contemporaneous with the event, of any significant illness, specialist medical appointment or hospitalisation required by or relating to Y or X and shall do all things and give all authorities and consents necessary to enable each parent to speak with any treating health care professional for the purpose of providing information or obtaining advice and to visit Y and/or X if hospitalised.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same.
Remove all issues from the list of cases awaiting hearing.
That a copy of these reasons be taken out and made available to the Department of Human Services.
Ms Cantwell shall, on being advised through her attorney, of an appointment time to be arranged, as soon as practicable, present Y to the Canberra Registry of the Federal Magistrates Court for the purpose of these orders being explained to Y and any questions he may have arising from same and as far as the family consultant is able to do so.
Request that the Registry arrange for the file to be forwarded as soon as possible to the Canberra Registry so that it is available for the family consultant to peruse prior to meeting Y. And, in addition, the family consultant who is to meet with Y, is requested to liaise and speak with the independent children's lawyer prior to meeting Y.
Leave is granted to the independent children's lawyer to make oral application for contribution by the father to the Independent Children’s Lawyer’s costs assessed in the sum of $7945.
I dismiss the application for costs made by the Independent Children’s Lawyer.
IT IS NOTED that publication of this judgment under the pseudonym D’Abreo & Cantwell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 2668 of 2010
| MR D'ABREO |
Applicant
And
| MS CANTWELL |
Respondent
REASONS FOR JUDGMENT
These are proceedings involving competing applications for parenting orders with respect to two children, X and Y.
The parties to the proceedings are Mr D'Abreo, who is the father of X and Y, and Ms Cantwell who is the mother of both children.
X and Y have been represented in these proceedings by an Independent Children’s Lawyer and for the majority of the time that the matter has been before the court.
The children have also, as a consequence of a number of issues that arose from the evidence of their parents and from consultations between the parties and family consultants, been the subject of a number of notifications, made during the currency of the proceedings, to the Department of Human Services. The Department have been invited on three occasions to intervene and participate in the proceedings. The Department has declined to do so on each occasion an invitation has been extended.
The Children
Y was born on (omitted) 2004 and is accordingly presently seven years of age.
X, the elder of the two children, was born on (omitted) 1996 and he has, accordingly, recently turned 15 years of age.
At the time of hearing X was living with or in reasonable proximity of his father and the basis for that statement will become apparent from these reasons.
At the time of hearing, Y was living with his mother and with the mother’s partner, a Mr B.
The proceedings have been on foot for some little time, having been commenced by an initiating application filed by Mr D'Abreo on 7 June 2010.
It is somewhat instructive to consider the history of the matter and the numerous appearances that have occurred with respect to the matter.
Following the filing of the application and on the first return date of these proceedings, 20 July 2010, a number of interim orders were made. They included an order pursuant to s.69ZW of the Family Law Act 1975 (the Act) for the provision of information by the Department. That information was ultimately forthcoming but after some significant delay. On that date also, an Independent Children’s Lawyer was appointed and orders made to facilitate the younger of the two children, Y, spending time with his mother for specific periods during an adjournment of the matter, Ms Cantwell only having been served shortly prior to the first return date.
Directions were also made on the first return date for the filing of further material to enable both parties to be in a position to conduct an interim hearing of the matter on the adjourned date of 11 August 2010. It is to be noted that orders were made with respect to Y spending time with his mother only, rather than X also being the subject of orders, as it was clear at that point in the proceedings that X was expressing strong hostility towards his mother and strong opposition to any time with her.
The Court had the benefit on that day, 20 July, of a Child Dispute Conference memorandum prepared following an appointment between the parties and Family Consultant Mr P.
That memorandum had anticipated the tone of the future conduct of these proceedings. It had suggested that there were significant allegations of family violence and a notification of child abuse or risk of abuse had been made by the Family Consultant. It was suggested that there was no utility in referral of the parties to external counselling programs. To assist in discharge of the Court’s obligation under s.65F, it was indicated that further appointments with the consultant or any family counsellor, including child inclusive discussion or otherwise, were not advisable.
It was suggested that Family Dispute Resolution was unlikely to provide any assistance. It was suggested a Family Report was required, an Independent Children’s Lawyer should be appointed and that the State welfare authority should be requested to intervene.
All of the matters that were within the court’s control were, as a consequence of those recommendations, attended to and addressed by appropriate orders.
Following the making of the above orders, the proceedings were relisted by Mr D'Abreo’s then legal representatives. On 30 July 2010, the matter came back before the Court. That listing had arisen as on the very first occasion that Y had spent time with his mother in accordance with the interim orders made, Ms Cantwell had failed to return Y to his father as required by those orders. It was suggested by Ms Cantwell that this was on the basis that the child, who was then six years of age, did not wish to return and had disclosed that he had been struck by his father. In any event, on that date (the mother being somewhat firm in her opposition to Y’s return, not being present and offering no real evidence to support her allegations), it was necessary for a recovery order to issue.
The matter next came before the Court on 11 August 2010. On that date, the proceedings were again adjourned at the request of the parties and principally as the Department of Human Services had not, by that time, complied with the order for the provision of information that had been made on 20 July. The non provision of this information created substantial difficulty for the Court and for the Independent Children’s Lawyer in addressing any application. Further interim orders were made on that date which allowed and permitted telephone communication between the mother and both the children.
As a consequence of logistical difficulties at that time, very little else was available as a realistic means for the relationship between these children and their mother to be furthered. At that point in time and indeed when the proceedings were commenced, Mr D'Abreo was living in Sydney with both children and Ms Cantwell continued to live in (omitted) where the parties had lived prior to separation.
On 22 September 2010, the matter again came before the Court. On that date, the Department of Human Services had produced material which simply added to the concerns and critical issues involved in these proceedings.
In any event, as a consequence of what was disclosed in the material produced by the Department, a further request for intervention pursuant to s.91B was made of the Department. The Department, as I have indicated, did not accept that or any other request to intervene.
On 22 September 2010 orders were also made for the preparation of a family report, the proceedings adjourned for further mention or directions at a latter time of the year and so as to enable completion of the report or at least its commencement. Orders were also made on that date that provided for Y to live, pending further order, with his father and to spend time with his mother each alternate weekend from Friday to Sunday as well as at other times. A number of specific issues orders were also made.
The matter then returned to Court on 23 December 2010. On that date, the proceedings were again adjourned this time into the New Year (2011). A further request for the provision of material from the Department of Human Services was made and extending that request to include reports made with respect to four children of Mr B., being the partner of Ms Cantwell, who had, at that stage, been disclosed for the first time.
By 23 December 2010 the family report had also been produced by the Family Consultant and a copy of that report was forwarded to the Department with a request that they again reconsider their position regarding intervention and in light of the further detailed and complex issues disclosed to the report writer.
On 23 December 2010 orders were also made for both parties to participate in supervised urinalysis and a number of other specific issues addressed. Orders were made for Y to spend a block period of time with his mother over the Christmas period.
When the matter returned to the Court in the New Year, directions for trial were made. Also at that point, all existing orders with respect to Y’s living arrangements were discharged and an order made that Y would commence, effective from 19 February 2011, some three days after the order, to live with his mother.
This had occurred substantially (but also based on a number of other issues arising from evidence at that point in time) on the basis that on the prior occasion, in December 2010, concern had been raised that Mr D'Abreo had or was in the process of relocating with the children to (omitted) from Sydney, creating yet further distance between the children and the mother who continued and continues to live in (omitted). By the time that the matter came before the Court in February 2011, that had transpired to be a reality.
Orders were also made which facilitated Y spending time with his father and that time has, by and large, progressed although, as with all arrangements for Y and/or X to spend time with either parent, it has been plagued with difficulties.
The proceedings had been scheduled to be heard in June 2011. Those expeditious hearing dates were allocated as the proceedings clearly involved significant concerns as to both children’s welfare. However, as a consequence of a number of difficulties with the parties’ preparation, legal aid funding and legal representation, the parties were not in a position to conduct a hearing on those days. Accordingly and by consent, the dates were vacated and fresh directions for filing then made on 17 June 2011. Further interim orders were entered into between the parties.
The matter then ultimately came on for hearing for three days, being 28, 29 and 30 November 2011. The matter occupied all three days of hearing and was adjourned part heard to 12 December 2011 when the evidence and submissions concluded.
Evidence of the Parties
I have read each of the documents that the parties have invited me to read in these proceedings. In Mr D'Abreo’s case that had commenced with his application which by the time of hearing had been replaced with an amended initiating application filed 2 February 2011. I was invited to read and read each of the various documents that Mr D'Abreo had identified in his case. These had comprised:
a)An affidavit filed 20 July 2010.
b)A further affidavit filed 29 July 2010.
c)An affidavit filed 16 February 2011.
d)A further affidavit of Mr D'Abreo sworn 23 September 2011; and
e)An affidavit by a psychologist, Ms B, who had worked with both Mr D'Abreo and, it would appear on at least one or two occasions, with X.
I was also provided by Mr D'Abreo with a case outline document setting out the documents that I was to read, a brief chronology and the orders that were proposed at hearing. I will return to those shortly.
In Ms Cantwell’s case, I had been invited to and have read and considered her response filed 13 July 2010. I pause to note that during the course of her cross-examination it became readily apparent that the orders that were proposed in that document did not, in fact, reflect anything that was actually sought by Ms Cantwell. Accordingly, the proceedings were stood in the list for some short time to enable instruction to be taken to clarify the orders proposed by her.
I have otherwise read and considered:
a)A notice of child abuse or family violence filed 30 July 2010;
b)An affidavit by Ms Cantwell sworn 29 July 2010 and filed 30 July 2010;
c)A further affidavit by Ms Cantwell filed 10 August 2010;
d)An affidavit by Ms Cantwell sworn on or about 3 August 2011 and filed 7 September 2011;
e)An affidavit of Ms Cantwell’s partner, Mr B, filed on 7 September 2011.
I have received an outline of case document from the Independent Children’s Lawyer and have otherwise had the benefit of a family report prepared by Family Consultant Ms S.
The evidence was augmented during the course of the hearing through the tender of a substantial quantity of material. The exhibits in the proceedings are extensive. I have six exhibits in the father’s case, being exhibits F1 to 6. In the mother’s case, five exhibits, M1 to M5. In the Independent Children’s Lawyer’s case I have 27 exhibits in total.
The number of exhibits in the proceedings substantially outweighs the material that the parties or either of them has filed in these proceedings. Neither party has filed any substantial affidavit for the hearing other than the affidavit of Ms Cantwell sworn on or about 3 August 2011. Whilst on first blush that is an extensive document it, in fact, runs to four pages of evidence and a significant number of annexures.
I hasten to add that the above is not raised as a criticism of Ms Cantwell’s attorneys. Indeed, Ms Cantwell was most effusive in her praise of her attorneys during the course of the hearing and with some justification. If nothing else, it is quite apparent, from the demeanour and presentation of each of these parties during their evidence and in particular Ms Cantwell, that it would have been an extremely trying and difficult exercise to obtain instructions or coherent, clear instructions from her.
The difficulties with the evidence of the parties have been most substantial. That has commenced with the difficulties I have alluded to as to a dearth of affidavit material.
Most of the material that was relied upon was, at best, antique and the events that had transpired since most of the affidavits were filed had very much overtaken events.
In the case of Mr D'Abreo, the material that I had from him for final hearing, being his affidavit sworn 23 September 2011 just made it beyond one page. As a consequence the evidence that was available at the start of the trial was anything but fulsome.
Similarly the family report which had been prepared expeditiously to enable this matter to reach hearing as quickly as possible, did not take account of a number of significant changes which had occurred following its preparation including:
a)Mr D'Abreo’s removal of himself and the children to (omitted) and,
b)The move of Y from his father’s full-time residence to his mother’s.
In any event those matters were ultimately addressed with Ms S in cross-examination.
By the time that the hearing commenced Mr D'Abreo was no longer legally represented. As a consequence, some substantial time was spent at the outset of the case and the matter in fact stood, entirely appropriately, to allow Mr D'Abreo the opportunity of receiving some guidance from the Bench in accordance with relevant guidelines regarding self represented litigants and as set out by the Full Court. Similarly, time was allowed to ensure that Mr D'Abreo had the opportunity to properly and fully read and consider a number of documents which had not reached him previously and as a consequence of his solicitors holding same but not having provided all of them to him (his address not being readily apparent). Sections of the legislation which would be relevant to the proceedings were also printed and provided to Mr D'Abreo and time allowed for him to consider those and focus his attention upon them in the conduct and presentation of his case.
The hearing also involved cross-examination of each of the deponents and report writers save Ms B. Ms B. was not available for cross-examination and had not been given notice of the requirement for same. Accordingly her evidence will need to be and shall be treated with that in mind.
Mr D'Abreo gave evidence first and was cross-examined extensively initially by the Independent Children’s Lawyer and then by counsel for Ms Cantwell. During his cross-examination and in relation to the totality of that cross-examination, Mr D'Abreo was easily upset and easily angered.
However, his evidence was not necessarily impeded by those matters. The greater difficulty arose from Mr D'Abreo’s preponderance to answer questions with questions or to provide an answer by way of statement which was neither particularly responsive to nor reflective of the question put. Again, lest it be taken that that is a criticism made of Mr D'Abreo alone, I hasten to add that the same difficulties befell the evidence of Ms Cantwell, perhaps more so.
The issues in dispute between these parties are substantial. There are a multitude of issues which cause some real concern that any outcome that is arrived at by the conclusion of this litigation will not necessarily provide an ideal arrangement for Y, or for that matter, for X.
For the majority of the case and notwithstanding that the proceedings did, in fact, involve a consideration of the welfare of both children (although Ms Cantwell does not seek to pursue any order for X to live with her or spend time with her), one would be forgiven for assuming that X was, in fact, of little relevance to the proceedings.
That position is not so as regards the Independent Children’s Lawyer who represents both children and was clear to seek to reign in each of the parties to cause them to reflect upon X’s involvement in the proceedings and his existence as a human being deserving of respect. However, it was clear that X very much runs his own race at this point in his life and I will deal with that issue separately.
The issues that arise from Ms Cantwell’s point are to suggest that Mr D'Abreo has perpetrated a most heinous, extensive and villainous campaign of violence towards her and since their separation towards her, the children and, more importantly, to her partner, Mr B. That extends to and includes a conviction of Mr D'Abreo in relation to the use of a vehicle by him to attempt to run down Mr B. when he chanced upon him in the street. The COPS event entry with respect to that particular event is in evidence before me and suggests that after an exchange of words between Mr D'Abreo and Mr B., and it is to be noted that it was an exchange by each of them to the other not purely Mr D'Abreo, that Mr D'Abreo then drove his car at Mr B. and including driving up on to the footpath and Mr B. only escaped being run down by running into the front yard of a home.
It was suggested by Mr D'Abreo that, in fact, events had not occurred quite like that but that a “mystery witness” had been produced at the Magistrates Court and as a consequence of that a plea of guilty had been entered by him notwithstanding his dispute with the facts alleged. With respect to that plea as well as a number of other convictions put not only to Mr D'Abreo but particularly to Mr B. had referred the parties to and drawn their attention to s. 69ZX of the Act which provides that the court may, at sub-s 3, take account of and make such use as appears appropriate of transcripts and results of other court proceedings. In light of the credibility issues that arose and which I shall address I propose, wherever a plea has been entered to recorded facts, to accept the recorded facts as alleged and with respect to which the pleas were entered.
On that basis I had indicated to all of the witnesses who were cross-examined with respect to convictions that to the extent that the conviction existed and had come about through either a plea of guilty or through the conduct of a hearing and relevant findings being made that I proposed to accept the police version of facts which were the subject of the charge or the plea of guilty. That is of some particular relevance when it comes to the evidence of Mr B., which I will turn to shortly.
During his cross-examination Mr D'Abreo’s evidence was particularly striking in his inability to express or concede anything positive of Ms Cantwell. When a line of questioning commenced, asking him about what difficulties he had in relation to Ms Cantwell and why he felt the need to put her down, he was quick and readily able to provide a list of reasons. They commenced with the things that she had done to him and to their family, her drug use and her relationship with Mr B..
He indicated that X loves his mother but does not respect her. That animosity extended through further questioning when Mr D'Abreo was asked whether he had anything good that he could concede of Ms Cantwell as a parent and his answer was ‘no’. When he was asked whether he had anything good that he could concede of Ms Cantwell as a human being, his answer was again, no, although strikingly in even more strident terms.
That animosity is also extended to somewhat extraordinary evidence by Mr D'Abreo that he has, since separation, had the word “BETRAYED” tattooed across his stomach and, in accordance with his answer to a question with respect to same, that it is there so that each morning when he looks in the mirror both he and the children can be reminded of exactly what the mother did. She betrayed them and their family.
When it was suggested to Mr D'Abreo that he did not have much to offer by way of positive comment, if anything, in relation to Ms Cantwell he then referred to her as being a waste of space.
When he was challenged as to whether that was how he really felt his answer was:
“That’s it, but I never convey that to X. He’s old enough to make up his own mind. If he doesn’t want to talk to his mum he won’t”.
That relationship, (between X and his mother) was the subject also of a regrettable piece of evidence during the proceedings. X has not spent time with his mother, it would seem, since these parties separated. X was, however, in Sydney for the purpose of the hearing at least when first listed. Attempts, it would seem, were made by the parties to arrange for some discussion to occur between X and his mother and with a view to X perhaps spending some time with his mother whilst both were in Sydney. That appeared to do very little but to generate an argument between X and his mother.
It was not clear but it did not appear that Mr D'Abreo had much to do with that argument or the deterioration; rapidly it would seem, of the dialogue between X and his mother. Indeed, that is consistent with what was observed by Ms S for the family report interviews when, at paragraph 48, she observes:
“X then told me he did not wish to see his mother although he later came into the room at Y’s request to get two birthday cards from her. His birthday was on the day after the assessment. He responded to a hug from his mother. Ms Cantwell then tried to engage X in a discussion about why he was refusing to spend time with her. They began to argue and Ms Cantwell appeared to become somewhat agitated. I suggested that X leave at this point as this appeared somewhat unhelpful. X then came back to the room after a few minutes and complained that his mother had signed his birthday cards on behalf of Mr B. He said he did not like this. I later found the birthday card in a bin in the office.”
What that demonstrates in relation to Ms Cantwell, which I will deal with in more detail later, is an inability for her to control herself, her behaviour or her impulses in a mature, insightful or child focused manner. It is perhaps discomforting that each of these parties share much in their lack of impulse control.
Mr D'Abreo’s evidence did not paint him with glory. That is particularly so in light of the attitude that he has demonstrated, nearly some two years after these parents have separated, towards the mother of these children and the role that each of them can play in these children’s lives.
The cross-examination of Mr D'Abreo otherwise largely centred around difficulties presently faced by X. X, it would seem, and certainly Mr D'Abreo expresses with some force, is an intelligent child and well able to function intellectually at or beyond his age. That is, to a very large extent, taken up by Ms S. I have very little from Ms Cantwell in relation to X as she would appear, through her evidence, to have largely abandoned him.
What I do have in relation to X though, particularly from Ms S, commencing at paragraph 40 of her report, is that X:
“Presented as an outwardly confident, bright boy who appears slightly overweight and was tall for his age. When I saw him by himself he was able to articulate his views on the current proceedings and also talk about his relationship with his mother.”
Ms S goes on to continue the theme as to X’s self-confidence and intelligence and describes him as an intelligent young man who was able to cooperate with the assessment and behaved appropriately with her. It was suggested that he had indicated clearly to Ms S (at paragraph 44) that he did not want to speak to his mother and that he had last seen her three or four months prior to the assessment. It continues “He will still say hello to her on the phone sometimes”.
X is reported at paragraph 45 as follows:
“X expressed the opinion that his mother was responsible for the breakup of the family and that she “ruined my dad’s life, my life and Y’s life”. He said that prior to the breakup they had “a house, money and perfect life”. X stated that he still loved his mother but he didn’t want to see her for a long time. He said that he did eventually want to see his mother at some point in the future. “
That is also in the context that in the following paragraph Ms S describes Mr D'Abreo as appearing very angry and very eager that X not be seen together with his mother. That was communicated apparently from the first contact with her office by telephone. Mr D'Abreo suggested that X might in fact become violent if he saw his mother and Mr B..
The self-confidence and role that X plays in the modulation of his father’s emotional wellbeing was demonstrated amply from Ms C’s evidence in these proceedings.
Ms S was giving her evidence Mr D'Abreo was clearly upset and unsettled by a number of the statements that were being made and he packed up his things and left. In attempting to have Mr D'Abreo stay I was unsuccessful. Mr D'Abreo left the Court and ultimately the building. X acted as the go-between together with the able assistance and intervention of the Independent Children’s Lawyer to attempt to negotiate Mr D'Abreo’s return that afternoon. He did not return and Ms S’s evidence proceeded and concluded in his absence as it was entirely unclear whether Mr D'Abreo would return to the proceedings at all.
On the following day, however, Mr D'Abreo did return and then continued his participation in the proceedings, although at one point during submissions by counsel for Ms Cantwell he did begin to read a newspaper which I took as his way of showing not disinterest but disdain for that which was being said, which again clearly had caused some degree of upset to Mr D'Abreo and with respect to portions of those submissions, perhaps with some justification.
The evidence and cross-examination, however, of Mr D'Abreo left me in no uncertain terms that Mr D'Abreo is a man of strong views, particularly in relation to Ms Cantwell and even more so Mr B..
The majority of his cross-examination, at least in Ms Cantwell’s case, was focused upon criticisms of X and in particular how Mr D'Abreo has dealt with and handled X in recent times.
Suffice to say that X is a child who is troubled. Many comments were made describing X as “out of control”, describing X as “a danger to others” and the like. Those statements would appear to be somewhat inflammatory and hyperbolic.
X is a child who has had a troubled childhood. He had lived with both of his parents until his adolescence. Whilst X has reported to Ms C that in his view they had “the perfect life” before separation, I cannot accept that this was so or indeed that this is even how X would have felt. That is not to be critical of each of his parents for the sake of it, but simply to reflect the issues that each of these parties has raised in the proceedings.
In addition to Ms Cantwell’s suggestion that Mr D'Abreo has been heinously violent to her throughout their relationship there is also a very serious issue raised in the proceedings regarding drug use by one or both of the parties and certainly by Mr B.. There were also issues raised about Mr B. perpetrating family violence.
It is clear that for the majority of X’s childhood there has been a significant level of dysfunction in his household. Ms Cantwell seeks to distance herself from that and lay blame squarely and solely at Mr D'Abreo’s feet for how X is now behaving. That cannot be so. Ms Cantwell asserts in her material that throughout the relationship she was the primary carer for both of the children. To that extent she has had and must have had some contribution to the difficulties that X now faces and they are difficulties that he faces - not some inherent evil within the child. He is, not withstanding that he has recently turned 15, still a child.
X’s behaviour certainly would not impress many. He has had difficulties at school and Mr D'Abreo’s evidence, during cross-examination, is that for most, if not all of the period from May to November of 2011 X has been extremely selective as to if or when he attends school. X has had periods of time leading up to the commencement of this hearing, a period of at least six weeks, when he has been staying away from his father’s home and staying instead at the home of friends and has been experimenting with drugs and/or alcohol.
There is also evidence arising from subpoenaed material, which has been tendered into evidence and which Mr D'Abreo was cross-examined about extensively, regarding an occasion when X had taken a knife to school with him. There is another occasion when X had been engaged in a somewhat physical altercation with a girl at school and had threatened to stab her with scissors.
Mr D'Abreo was significantly criticised for the manner in which he has handled these events. He was particularly criticised when on two occasions he has telephoned the police seeking their intervention and indeed the police have, whether at his request or otherwise, obtained an apprehended domestic violence order against X for Mr D'Abreo’s protection and have recently charged X with the offence of breaching the Domestic Violence Order.
It was suggested strongly throughout the line of questioning put to Mr D'Abreo and also in submissions that this reflected poorly upon Mr D'Abreo and demonstrated a complete lack of insight into appropriate parenting. I do not necessarily accept that that is so. It is certainly harsh. It is certainly what one might call in the vernacular “over the top”, but it has come in response to an escalating series of uncontrollable behaviours by X that his father has struggled with.
It is to be remembered that Ms Cantwell, while she absolves herself of all blame or fault for X’s childhood, has no doubt contributed to the troubled and disturbed behaviours he is now demonstrating. Ms Cantwell is equally quick to ensure that all blame is placed at Mr D'Abreo’s feet even though he is the only person dealing with this and he is the only person able to deal with it because Ms Cantwell has no relationship at all with X and would appear, on each of the two occasions that I have referred to, being the appointments with Ms C and during the hearing, used the olive branch, as it were, of having some connection with X to simply cause a fight and to denigrate his father.
It may well be that X has been strongly influenced against his mother by Mr D'Abreo. However, it is equally probable that X has, at his age and being at the time these parents separated, 13, formed his own view on the basis of Ms Cantwell’s culpability in the disruption of his household and family.
No matter how typified by conflict and tension X’s decision to reject his mother may have been, it was something clear to him and particularly as there is no dispute – without being in any way morally judgmental of Ms Cantwell – that at or prior to the termination of her relationship with Mr D'Abreo, she had already commenced the relationship with Mr B.. It is not improbable that X would not have formed his own view as to how he feels about his mother knowing of these things.
I also have some comfort that there may well have been some action of his own consciously undertaken by X in coming to that view (top reject his mother) rather than being solely influenced by his father from:
a)The fact that X is described as a very intelligent and articulate child. Clearly, that intelligence would suggest that he may be less gullible or open to suggestion than he might be if he were otherwise; and
b)Y is not suggested to demonstrate the same level of antipathy towards either of his parents, although quite clearly each engages in an active denigration and character assassination of the other.
X is, in fact, able to navigate his way through that hatred. Regrettable he must have done so to be able to express to Ms S that he would be happy with a shared-care arrangement between his parents, which is entirely impracticable and impossible.
The manner in which these parents communicate with each other was made apparent during cross-examination of Mr D'Abreo. During that cross examination it was conceded that Ms Cantwell had received a number of messages and during those messages that Mr D'Abreo had referred to Mr B. (Ms Cantwell’s partner) as “a dole bludging, shithouse cleaner.”
In relation to Ms Cantwell, Mr D'Abreo had referred to her as “dumber than dog shit, junkie and failed wife.” It is suggested that prior to the event I have referred to when Mr D'Abreo drove his car at Mr B. that Mr D'Abreo had said to Mr B., “Stay away from my fucking wife. Your fucking time is up, cunt.” It was denied by Mr D'Abreo that he had said this, but he had no great confidence in doing so.
It is then suggested that, in fact, Mr B. was walking on the footpath and may have said to Mr D'Abreo, “Fuck you, cunt, we’re going to get you tonight.”
This is the way that these adults speak to each other and, in that case, while Mr D'Abreo had both children present with him. Ms Cantwell’s manner of communicating with all and sundry and particularly Mr D'Abreo is no better.
All of that is highly regrettable and bodes poorly for these children’s futures. However, it is what the Court is left to deal with. I was left overall, however, with the impression of Mr D'Abreo’s evidence that whilst he holds such strong views and one would be advised to describe them particularly as regards Mr B. as views of hatred that he is frank in expressing them. That is potentially detrimental to the children, but at least provides some reassurance, if that phrase could possibly be used appropriately in this context that I can accept his evidence.
I am not as troubled by the allegations of drug use by Mr D'Abreo as I am by issues of drug use alleged with respect to Mr B. and Ms Cantwell. Certainly, it is conceded by Mr D'Abreo that he has used opiate-based prescribed medications in the form of Oxycontin to address a longstanding back condition. This is and has, at all times been, clearly in evidence before the Court. It is also supported to some extent through the evidence given by Ms B., although that evidence cannot be challenged or tested as she was not available for cross-examination.
Much was made during the proceedings of the failure by each of these parents to comply fully or properly with the orders that had been made with respect to drug testing. Certainly, when the matter was first called on, there was some real difficulty in that regard and few, if any, reports were produced. Subsequently, further reports were produced, although again, frankly, albeit in disregard and defiance of the order that was made, Mr D'Abreo suggested that he had stopped the drug testing and had not realised it was necessary and later modified that answer to saying that it was not necessary, as he was not using any drugs.
The material that is produced by Mr D'Abreo would certainly suggest that the only drug which have been demonstrated to be in his system is in all probability the opiate-based Oxycontin, which is prescribed for him.
Ms Cantwell’s evidence troubled me as much, if not more, than Mr D'Abreo’s. Ms Cantwell in her evidence was unable to stick to any topic and was unable to provide an answer that was responsive to any question. This was so notwithstanding repeated interruptions by the bench to remind her of the importance of doing so.
It seemed that each and every entreaty to her to focus upon listening to questions and answering them was ignored and instead Ms Cantwell much preferred to simply make self-serving statements, often completely disconnected to the question she had been asked. A very disturbing aspect of Ms Cantwell’s evidence is that whilst she has in her material asserted that she has been the victim of significant and heinous violence on the part of Mr D'Abreo, she has not chosen to lead any evidence that is of any assistance in supporting that allegation. It is suggested in the notice of abuse as follows:
“Mr D'Abreo assaulted Ms Cantwell on a weekly basis. Mr D'Abreo punching Ms Cantwell in the back of the head and wounding her with a knife. Mr D'Abreo punching Ms Cantwell in the back and throwing a cup at her, hitting her in the head. Mr D'Abreo hitting Ms Cantwell with a length of PVC pipe in the back and arm.”
During the period that Mr D'Abreo was cross-examined, he being the applicant, these were the only allegations that were known and they were all put to Mr D'Abreo and all denied. Ms Cantwell in cross-examination, particularly by the independent children’s lawyer, sought to significantly expand upon what she described as a series of heinous assaults, including on one occasion when she suggests that she was made to or was stripped naked and made to kneel on the floor while Mr D'Abreo flicked matches at her and then urinated upon her.
She suggested that on one occasion – the date of which was not apparent – he had kicked her so hard in the vagina that she could not urinate. She suggested when pressed as to a timeframe that this was just after Y was born, accordingly some six or so years ago. Very few, if any, of the incidents that were raised in cross-examination by Ms Cantwell had been reported to any person, including the police. That is not to suggest for one moment that the absence of a report to police of an assault is in any way proof positive that the allegation is false.
The vast majority of complaints of domestic violence and of sexual assault go unreported, as is clear from a plethora of research by the Institute of Criminology and other agencies, both in Australia and elsewhere.
The only corroboration in any fashion that is provided in relation to any of the complaints that are raised by Ms Cantwell relates to an appointment that she had with a doctor at the (omitted) Medical Centre in 2008 wherein she had indicated that she was wanting to leave her husband and she considered that he was abusive.
There is no detail, however, in any of the evidence nor any corroboration. One would think when it is suggested by Ms Cantwell in the witness box, but not previously in any affidavit and notwithstanding that the proceedings have been on foot for nearly 18 months, that she has been stabbed, suffered broken bones and had similarly significant injuries that there would be a record somewhere of some treatment, a witness somewhere to anything. None were called. One might expect that such allegations might be particularised in Affidavit material or the Notice of Abuse filed but they are not.
The other difficulty that arises from the fashion in which Ms Cantwell has put her material before the Court, (i.e. in response to questions from the Independent Children’s Lawyer to elaborate upon her broad allegations), is that they smack of recent invention and embellishment. More fundamentally, there is a real Browne v Dunn (1893) 6 R 67 (HL) issue that arises. None of the allegations were or could be put to Mr D'Abreo. No application was made to recall Mr D'Abreo to do so. I have no doubt if put, as his submissions made clear, he would deny them.
In any event, arising as they do and in that context, I have some real difficulty accepting them. I am urged in submissions by both Ms Cantwell’s counsel and the Independent Children’s Lawyer to approach the allegations with some care, concern and caution, as even though they have arisen purely in cross-examination they are still, nonetheless, serious allegations. Indeed, that they are. And they are allegations that notwithstanding that Ms Cantwell used every opportunity to blame any deficiency in her case upon her former solicitors are matters that must of and should have been known to Ms Cantwell and communicated by Ms Cantwell in one of the many Affidavits she has filed.
I accept that she has not provided instructions to her attorneys present or previous to raise those matters. Ms Cantwell sought to suggest that she had, in fact, raised the entire catalogue of the above events and others with her former solicitors, who had told her, “That is not relevant.” I have not taken that or treated that as a waiver of legal professional privilege by Ms Cantwell, although clearly it would open the door to such a submission. However, I have some real difficulty accepting her evidence in that regard. That is not to suggest that there may not have been other incidents of violence than those which Ms Cantwell has referred to in the notice of abuse filed.
The difficulties with Ms Cantwell’s allegations of violence and the lack of evidence to support same is highly problematic. Whilst Division 12A may provide and may be intended to provide some assistance to victims in adducing evidence other than strictly in accordance with rules of evidence that does not and cannot assist where the evidence is simply not produced.
When Ms Cantwell was questioned about matters of violence and in particular suggestions that Y had been delivered to her covered in bruises and other matters, she indicated her view was that it would be best for both children that they live with her and have nothing whatsoever to do with Mr D'Abreo.
It was at that point that an adjournment was granted to enable Ms Cantwell to receive advice and provide instructions as to what was actually proposed by her. That was particularly in the context of a line of questioning by the Independent Children’s Lawyer wherein it was suggested that if Ms Cantwell seriously held such concerns for the children’s welfare that surely she would not be proposing, as her response did, that there be block periods of time during school holidays, weekend time and the like.
Upon returning, Ms Cantwell indicated that she was indeed concerned, that she would prefer supervised time, but accepted and acceded to the fact that Y had to see his father and accordingly proposed time roughly in line with that set out in her response.
The attitude that was presented by Ms Cantwell towards Mr D'Abreo very much aligned with Mr D'Abreo’s attitude towards her. The palpable dislike – although if there is any truth to the allegations that she had raised during cross-examination – explicable and understandable dislike – was readily apparent.
The real issue that caused me substantial concern in relation to Ms Cantwell’s evidence relates to her drug use. Ms Cantwell suggests, although she has produced no medical evidence to support the contention, that she was prescribed the opiate-based Oxycontin for the purpose of treating arthritis. That seems a somewhat extraordinary allegation, although there is no evidence to disprove it. But similarly, Ms Cantwell has been entirely absent in producing any document to support anything that she alleges in relation to her medical treatment, medical history or indeed her present drug use.
Both Ms Cantwell and her partner, Mr B. are on a supported drug program at present. They had each approached that program (and although it is denied by Mr B. do not accept his evidence in advancing that denial) and requested assistance to deal with their respective narcotic addictions. Prior to receiving that assistance, quite clearly Ms Cantwell was addicted to and abusing Oxycontin. Whether it was prescribed for her arthritis or not, what appears apparent from her PBS and Medicare history tendered into evidence is that she has – again in the vernacular – engaged in a degree of “doctor and chemist shopping”.
Ms Cantwell attends doctors frequently. She attends pharmacies frequently to fill the same prescriptions, quite often several pharmacies in one day. Ms Cantwell and her partner, Mr B. are both now on a supported drug program to deal with and suppress their narcotic addiction. However, Ms Cantwell continues to smoke marijuana and suggests that the staff at the drug rehabilitation program with which she is engaged are aware of it. Clearly, they would be, as it shows up on her regular testing. But that they have knowledge of and no concerns with respect to it is less clear and certainly not a corroborated allegation.
The evidence of Ms Cantwell regarding drug use causes the Court concern. It demonstrates an incapacity of this person to remain drug free, including while they have proceedings before this Court and one would think they would be attempting as best they could to either impress the Court so that they can seek to obtain the outcome that they wish or perhaps for more genuine and optimistic motives to use the opportunity to improve themselves so that they can be a better parent. That is not an opportunity of which Ms Cantwell would appear to have availed herself with any great alacrity.
The program in which Ms Cantwell and Mr B. are both engaged requires regular drug testing. An order of this Court similarly required regular drug testing. The issue in relation to the use of drugs is far more focused on Ms Cantwell. There has been frank concession by Mr D'Abreo from the outset that he is prescribed and takes Oxycontin. I have not had the same level of candour and frank disclosure from Ms Cantwell. She is not only taking a medication which she is prescribed to deal with her previous opiate addiction, but she takes a range of other drugs, legal and illegal, including marijuana, diazepam, temazepam and others.
None of those were the subject of any concession frankly or otherwise by Ms Cantwell and most assuredly not by Mr B.. Another aspect of the evidence that caused me some concern was a drawing and letter that were tendered. It was suggested by Mr D'Abreo that this had been given to him with some other things. It is exhibit F4 in the proceedings. There is a somewhat humorous drawing of a devil with fully detailed genitals and the word “Snake” written beneath it.
It is suggested and I accept that the drawing is by Mr D'Abreo, as “Snake” is a nickname that he uses. However, there is then writing across the rest of the drawing, which has occurred by the time it is given to Mr D'Abreo. Ms Cantwell denies any knowledge whatsoever of the writing and I am satisfied by reference to that document, the content of the text and her evidence generally that she is its author. The writing says:
“See, nothing will help you. It’s hereditary. Handed down, through and through. Don’t make your son make the same mistakes you did. Please send him home, you cunt – illegible – to him forever. You can’t lie to him forever. The truth will set you free. You only have yourself to blame, but you could be a good anything. Only some people are good dead. Tell X why you’re hell bent on gays. The truth will set you free. Stop blaming everyone else.”
The purpose or meaning of that is somewhat unclear, but the fact that I am satisfied that it was authored by Ms Cantwell and she so glibly denies same causes me some real concern as to her credit as a witness.
In turning to Mr B., I am satisfied that not a single word that has passed his lips should be accepted by me. I found him a most unimpressive witness. That arises from a number of elements of his evidence. Mr B. suggests that he has been drug free since 2002 or thereabouts. That would not seem to be supported by any of the material introduced through the exhibits. He suggests that the referral letter to the rehabilitation program that both he and Ms Cantwell are engaged with is wholly inaccurate. He suggests that he did not speak to the author of the letter and that he did not ever tell them that he was or had ever been addicted to opiates.
The above evidence is so notwithstanding that the letter referring them both to an opiate addiction program quite clearly refers to having interviewed both Ms Cantwell and Mr B., referring both to the program and that the referral was on the basis of opiate addiction from which they were both suffering.
The answer given by Mr B. was when challenged that the letter was an accurate reflection of what happened when he and Ms Cantwell had been referred to the program was that he was quite clear and frank with intake staff at the program in telling them that he did not have any problem with opiate addiction and never had, but that, in fact, he really just wanted to receive some pain relief for a back condition he alleges he had.
No evidence is produced with respect to the back condition by way of report, subpoenaed material or otherwise. It is suggested that he had been to his GP and sought some analgesia or pain relief, but that they could only offer him opiate-based drugs and that this was not much use to him. He wished to be able to take a non-opiate pain relief agent, such as Suboxone, the medication that both he and Ms Cantwell are now prescribed.
The difficulty again with that is that I find it implausible that staff of such a specialised drug addiction service would be told frankly and candidly by a person that they, in fact, had no drug addiction whatsoever and never had, but simply wanted some pain relief and that is why they were presenting to a drug addiction service. I do not accept that this is what occurred and I accept that Mr B. was drug addicted, addicted to opiates and that this is the basis upon which both the referral and the ongoing treatment have occurred.
The most alarming portion of the evidence given by Mr B., which evidence I do not accept, is that on an occasion earlier this year he and Ms Cantwell were pulled over by the police and searched and two bags of drugs found. The finding of the drugs is described in the tendered Police facts as having been taken by Mr B., during the search, from the back pocket of his tracksuit pants. Mr B. asserts that this allegation by the Police is simply not true. He suggests that the drugs were already sitting at the side of the road conveniently proximate to where they had been pulled over and searched by the police.
If I accept Mr B.’s evidence, I am to be led to believe that there are randomly placed packets of amphetamines scattered about the otherwise quiet suburban streets of (omitted) so that when the police pull over otherwise law-abiding citizens, albeit with a previous extensive criminal record, that these drugs are there to be found at the side of the road as a matter of mere coincidence. I do not accept that this is what occurred.
Mr B. pleaded guilty to the charge. He suggested he only did so after the hearing had commenced and when there were five police officers who would all have their stories straight. It may well be that they were going to give the same evidence. It may well be, however, that this was because they all saw the same thing, as set out in the police facts to which Mr B. pleaded guilty, that the drugs were observed to be taken by him from the back pocket of his tracksuit pants while being searched.
The demeanour of Mr B. in the witness box suggested, as was clearly the case, that it was a long way from the first time that he had ever been in a witness box.
The criminal record of each of the parties and Mr B. were tendered. The criminal record of each do them no great service. Indeed, they were quite appalling. Mr B.’s record includes a significant number of events with respect to drug use, dishonesty and violence against women.
Mr B. denies that there has ever been violence perpetrated by him towards any woman and especially not a woman with whom he is in a relationship. The difficulty with that is that from the subpoenaed material that is tendered into evidence, I have an extensive list of complaints to the Department of Human Services in relation to allegations of violence by Mr B. to his former partner. Certainly, whatever has transpired between Mr B. and the Department has not been sufficient to cause the Department to remove from his care one of his several children, who presently lives with him.
Mr B. indicated that he was presently going through “Family Court proceedings” in Canberra or (omitted) to get his other children into his care, although during his cross-examination he seemed to resile with respect to his pursuing the care of at least one of the children.
I do not accept Mr B.’s evidence that he is entirely innocent of having perpetrated violence in the past towards women with whom he has been in a relationship with. That finding is supported by the police and Departmental records.
Mr B. would suggest that the plethora of domestic violence orders and convictions against him in that regard have all been made up for some tactical advantage by the complainant or the victim and that they have all been proved to be false. Mr B. has not sought to produce anything to the Court to prove that a single allegation is false or that a single conviction has been overturned. Indeed, I am simply left with the business records of the two agencies as I have described, which would be entirely at odds with that asserted vehemently by Mr B..
Ms C’s evidence, both through her report and cross-examination, paints a bleak picture for these children. Again, that is not to criticise the parents or either of them for the sake of it, but simply to observe that Ms C has identified a number of disadvantages that have already been experienced by one or both of these children and will continue to be. She has also identified a concern that X would, notwithstanding how bright he is, leave school or become disinterested in it and accordingly suffer educational disadvantage.
That has, at least at this time, come to pass although it is suggested by Mr D'Abreo that he has some confidence that a vocational pathway of secondary education will be pursued by X next year. One would hope for X’s benefit that this is, in fact, so.
The parties’ proposals
Before dealing further with Ms C’s evidence, it would be of some assistance to make clear the parties’ proposals. Neither party is abundantly clear as to that which they say should occur. Ms Cantwell was less clear than Mr D'Abreo.
Ms Cantwell had initially suggested, at least during her cross-examination and notwithstanding the orders proposed in her response, that there would be either no time or supervised time between Y and his father. That ultimately changed so that by closing submissions, the position advanced by the Independent Children’s Lawyer was adopted by Ms Cantwell and that being that Y would live with Ms Cantwell and spend time with his father for one half of each school holiday period and for two weekends during school terms to occur in the (omitted)-Canberra area, bearing in mind the significant distance geographically between these parties’ homes.
Mr D'Abreo’s proposal was in not dissimilar terms. He proposed that Y would live with him and that Y would spend time with his mother for two weekends during school terms and for one half of the school holidays.
Both parents proposed that there be telephone communication, although each was clear that this had been plagued with difficulty from in the past.
Ms S, when she conducted interviews with the parties, commenced by setting out their proposals in paragraphs 8 and 9 of the report. It was described as follows:
“Mr D'Abreo stated he would like the boys to live with him on a full-time basis. He stated that X does not want to have a relationship with his mother. He is proposing that Y spend time with his mother once a month for four days in Canberra. As far as I could establish, he appears to want sole parental responsibility.
Ms Cantwell would like Y to live with her and to see his father once a fortnight and for half of the school holidays [It is to be remembered that at this time it was not clear that Mr D'Abreo had moved or proposed to move to (omitted) from Sydney]. She stated that X had made up his own mind to live with his father. Ms Cantwell stated that she would like to make the main decisions about Y herself, but she would be happy to contact Mr D'Abreo’s solicitor and let him know about any significant events in relation to Y.”
By the time of hearing, Mr D'Abreo did not have a solicitor and clearly that was not going to occur. What is also inferred from each of those proposals and abundantly clear from what I have read and seen of the parties in the witness box is that communication between these parents is fraught.
The Court has an obligation under s.65F and prior to making a final parenting order to ensure that parties have, with some exceptions, attended counselling. There is no definition of counselling within the legislation and one can only infer that that must mean family counselling.
I have no confidence that there is any course or program that would assist. The Family Consultant Mr P was similarly pessimistic. Similarly, Ms S, when she was questioned in that regard, expressed a similar lack of confidence that an appropriate course would or could be found or that would be of any assistance in any event.
During the family report interviews, it is quite clear that Mr D'Abreo was upset and did not wish to participate. A number of categories of questions he simply refused to answer or discuss. At one point, it is suggested Mr D'Abreo simply began reading a newspaper whilst the interview was about to commence.
Mr D'Abreo, at that time being in the midst of moving to (omitted), would not tell the report writer where he was planning to live with the boys. In paragraph 13 it is suggested he implied that he saw living in the Sutherland Shire as a short-term option and that he would prefer to live in the country, but was being prevented from doing so by the current orders. Those orders clearly did not practically prevent him doing so as, at or about the time of the interviews, he moved.
Mr D'Abreo otherwise was clear that he was prescribed and took Oxycontin for constant pain he experienced as a consequence of a previous work-related accident. He indicated also that he had been put on antidepressants not long after he had suffered that injury and that was the basis upon which he had seen Ms B, psychologist, but that his mood had improved and medication had ceased.
Mr D'Abreo consistently denied to the report writer that he had been abusive to Ms Cantwell. It is stated at paragraph 18:
“He stated that she had manufactured the allegations against him in order to get him out of the house and to enable her to continue in a relationship with Mr B., who he believed she was seeing for some time before he had to leave the family home. Mr D'Abreo stated that he deplored violence against women and had seen the terrible impact this had had on his then partner, Ms D..”
Some scepticism is perhaps implied by some of the comment made by the report writer regarding the allegations raised by Ms Cantwell, including having been struck repeatedly with a length of PVC pipe. Ms Cantwell in her interview related what she perceived as a poor childhood that she had experienced. She indicated she had a daughter A from a previous relationship, now an adult, and who had lived away from her care for most if not all of her life.
She indicated to the report writer and elaborated during cross-examination that she had started a relationship with Mr D'Abreo many years ago whilst they were both living in (omitted), both addicted to heroin and it would appear Ms Cantwell working as an (omitted). Ms Cantwell similarly though behaved in a fashion that was less than helpful to the family report writer. This had the consequence that the history that is related and reported is not only brief, but has some difficulties in being followed or accepted.
Mr B. was also interviewed as part of the report. He suggested that he had “a fairly lengthy criminal history”. That is a somewhat euphemistic way of describing that which has been tendered. He indicated that he had not long come out of gaol before he met Ms Cantwell. He confirmed that he had a history of polysubstance misuse. He stated that he was on a methadone program when he was recently in gaol (though Mr B., as referred to above, denied any opiate use for a lengthy period and no need for treatment for opiate abuse.) It is suggested that a Ms M. from the (omitted) Centre reported that Mr B. had told them he was using Buprenorphine off the street prior to entering the Suboxone program. However, they are all matters that Mr B. denied.
Mr B. again denied that he had been engaged in any violence of any fashion with any person and that suggestions of domestic violence by him towards his previous partner, notwithstanding the existence of current AVOs, were manufactured. However, Ms S did observe of the relationship between Mr B. and Ms Cantwell that they appeared committed to each other and that they appeared to be relatively content with and supportive of each other.
One of the difficulties with Ms S’s evidence is that Mr D'Abreo absented himself for a significant portion of it. It was made clear to Mr D'Abreo upon his returning to the proceedings that Ms S would not be recalled and as he had voluntarily absented himself that he would need to obtain a transcript if he wished to be more specifically informed as to her evidence.
Ms S’s cross-examination caused some real pessimism as to the outcome for these children.
There was some guarded, hesitant and largely reserved support that the better option may be for Y to stay with his mother. That would appear by and large to be on the basis that Y has been with his mother now for about 12 months and there was an element perhaps of “the devil you know” in that suggestion. Matters that had arisen from the evidence of the parties, although Ms Cantwell had not completed cross-examination, were put to Ms S. Her answers in relation to those questions are somewhat instructive.
The issues that had been disclosed by Mr D'Abreo in relation to X were put to Ms S and she indicated that these caused her some concern. She did indicate, however, that he was a child of some ability, that a child of his age can be difficult, but that what was reported to her regarding lack of school attendance and the like suggested there had been no improvement in his home conditions and that, in fact, the situation clearly had deteriorated.
I pause to observe one of the changes that had occurred that may have contributed to that deterioration was Y leaving the household. That was not specifically addressed in submissions or with Ms S, but it is one of the events that had occurred as well as the ongoing detritus of the fallout between and deterioration in the relationship between X and his mother in addition to any matters arising in Mr D'Abreo’s household. It was suggested in Mr D'Abreo’s evidence that at some point in time X’s mother had made it very clear to X that she no longer loved him and wanted nothing to do with him.
It was expressed by Ms S that she had some concerns in relation to Mr D'Abreo’s home environment were Y to enter it, particularly as a consequence of what appeared to be incidences of domestic violence between X and the father - perpetrated by X not his father. Ms S was concerned that Y should not be exposed to those.
Ms S indicated fairly that she could not comment further on the severity of stress, depression or the impact of Mr D'Abreo’s diabetes on his capacity to care for Y. I should be clear that I have no concerns with respect to Mr D'Abreo’s diabetes as something that would disqualify him as the carer of Y or any other child.
It was put to Ms S that assuming both children were to live with their father whether any counselling would be of assistance, whether Y would have a regulating effect upon X’s behaviour and similar issues. It was suggested that none of those were or likely would be particularly effective or realistic as X was a strong-willed boy and that he would appear to have gotten more hot-headed and in those circumstances, it was unlikely that counselling would be of much assistance to him. However, Mr D'Abreo had indicated, when the matter had returned part heard, that there had been some cautious improvement in that regard.
The proposition was put to Ms S that there was some concern of alienation by each of the parents. That proposition was readily agreed with. Mr D'Abreo’s tattoo, portrayed across his stomach, was raised as a clear manifestation of an ability to alienate and desire to undermine relationships.
Ms S’s answer was that she had every confidence that the father would not support the mother’s relationship, but nor did she have any great confidence the mother would support the father’s. Ms S was asked how one might best protect this little boy from the conduct of his parents of a destructive nature, both as regards their own lifestyles, particularly in relation to Ms Cantwell and Mr B. and their attitude to the other. Her answer was:
“That’s difficult. There are substantial shortcomings with both parents and X and Y are at risk of having educational, social failure with either parent. As there are no other options, X will make his own choices and perhaps Y could have some supportive counselling to address the wider conflict and how the parents feel. That’s about the limit of what can be done.”
Ms S was asked if generally it was considered better that children stay together and that was agreed with. It was suggested that there might be some benefit in the children being split so as to share the risk and its management with, if nothing more, two sets of eyes to observe. That was also agreed with. It was suggested by Ms S that Y had a certain degree of stability with his mother, that he was at least attending school, although there were some concerns with respect to his progress.
Y’s school reports were tendered, which suggest, without intending any criticism or insult to Y, that his performance is less than ideal at school. It was suggested that there had been no progress made by X in relation to the difficulties and social difficulties he had presented with at the time of report interviews. Ms S fairly commented that she hadn’t seen him, but there had been some degree of stability and continuity in arrangements at least for Y, purely because he had been in one household and attending school. It was suggested that Y was younger and less vulnerable.
The issues of violence were raised by Ms S and she indicated that the mother had given an account of family violence, particularly referring to paragraph 25 of her report, but also commented that both Y and X had been brought up in a household where certain standards of behaviour, which were not otherwise mainstream, were seen as normal. She took the view that there was no additional risk that had not already been identified.
In relation to the similar issue of domestic violence perpetrated by Mr B., Ms S indicated that the mother and Mr B. both insisted that there was no domestic violence in their relationship, although it was possible that reality was quite different. It was suggested that risks were presented to Y by Mr B.’s polysubstance abuse and his history of offending, including a recent offence that I have referred to of possessing prohibited drugs.
This is a gentleman whose evidence asserts that he has not used drugs for many years. If the drugs found upon his search by Police were not for his use, one can only presume that he was transporting them for somebody else or had them to sell, but in any event, I accept he had them. When Ms S was asked whether she was in a position to recommend that Y live with the mother, her answer was:
“It’s difficult as there are huge problems with both parents’ parenting capacity. On balance, perhaps Y is better off staying with mum because he seems settled there.”
It was asked whether it was a sensible proposition that Y then spend time with his other parent for half of the holidays and two weekends during school terms. It was suggested that this was possibly the best mechanism to ensure protective behaviours and to ensure a relationship between the two boys, particularly as X has no relationship with his mother. Again, it is of some concern to me, particularly in light of Ms Cantwell’s demeanour and presentation not only during the conduct of this case before the Court, but in her presentation at the report interviews that she accepts no responsibility for the impact of her acerbic character upon X nor any responsibility or even acceptance of the possibility that X may have formed in whole or in part his own view of his mother in light of the events that now appear undisputed with respect to Mr B..
When Ms S’s evidence in relation to her report was tested, it became quite clear that in reality each of the proposals of Y living with his mother or his father were attended with a number of difficulties, uncertainties and potential disadvantages. One of the major issues that came from Ms C’s evidence was that she felt that the major concern related to the lack of clarity with respect to drug use. When it was suggested that marijuana use was occurring by Ms Cantwell and in her household, Ms C suggested that was really the least of the worries, as the opiate use and addiction was far more concerning.
When asked to summarise the concerns she had with respect to Ms Cantwell they were as follows:
a)A lack of clarity with respect to her drug use,
b)A lack of clarity with respect to Mr B’s drug use and criminal behaviour and
c)Difficulty in containing her thoughts in relation to Mr D'Abreo and becoming verbally abusive to X.
When asked to summarise her concerns with respect to Mr D'Abreo they were:
a)A lack of insight into his behaviour upon the children,
b)His impulsivity and
c)His difficulty containing his thoughts in relation to Ms Cantwell, Mr B. and others.
When Ms S was asked if she had less concerns about Mr D'Abreo’s current drug use than Ms Cantwell, her response was that that this was so, within the limits of what she had been told and shown.
Ms S was of the view that parental responsibility could not be shared equally between these parents and would not function on that basis.
Ultimately, it was put to Ms S that the mother had alleged an extensive history of extreme domestic violence and whether that raised any concerns as to Ms Cantwell’s ability to act protectively. The response Ms S provided was:
“I have so many concerns about both. I reiterate their own upbringing and parenting standards are not necessarily consistent with a lot of the community’s values. I don’t know the extent of her capacity to act protectively or the extent of either of these parents to do so”
In further cross-examination of Ms S by Ms Cantwell’s counsel and in questions put by me, Ms S was equally of assistance. Ms S was asked to balance between the choice of a history of violence as alleged by Ms Cantwell, (subject to the difficulties attendant that evidence that I have referred to) and the possibility of drug use in the mother’s household now. Ms S’s answer was:
“The children need stability. If there is any doubt about Mr D'Abreo’s household then maintain the status quo. I have substantial concerns about both households. There are so many unknowns.”
One criticism that was then pointed to as an unknown was the fact that when the children had been in the father’s care, they had attended two different schools. However, they are two different schools following very recently upon separation between these parties and by Mr D'Abreo leaving with the children from (omitted) and travelling to Sydney. I have less concern in that regard and particularly as a present reality as Mr D'Abreo has moved to (omitted) and has purchased a home and is unlikely to move in the foreseeable future. He would appear to have some real security of accommodation in that regard.
Legislative Pathway
The Full Court has made clear in decisions such as Goode& Goode (2006) FLC 93-286 and Marvel& Marvel [2010] FamCAFC 101 that the Court is required to follow the pathway the legislation prescribes. That pathway provides that I commence with a consideration of the objects and principles of the legislation as set out in s.60B as follows:
Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The objects and principles enshrine a number of rights that the children have and which are provided to them by the International Convention on the Rights of the Child.
The balance of the convention, although not presently part of the objects, is also of some relevance in interpreting and applying the substantive provisions of the legislation (see Minister of Ethnic Affairs v Teoh [1995] HCA 20, Mabo v Queensland [1992] HCA 23 , B & B v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FamCA 621).
The rights that are created by the objects impose an obligation upon the Court to interpret the substantive provisions of the legislation with those rights and their application in mind.
The principles underlying the objects speak to the child’s right to know and be cared for by both of their parents and to spend time on a regular basis, communicate on a regular basis with both parents.
I am then required to turn to s.60CA, which reminds the Court that all that is done must place as the paramount consideration the children’s best interests.
I am then required to consider s.61DA and the presumption of equal shared parental responsibility, both to determine whether the presumption, in fact, applies and, if it does apply, whether it is rebutted.
The presumption of equal shared parental responsibility does not apply if I am satisfied on reasonable grounds that a parent has engaged in abuse of the child or family violence. I am not satisfied that there has been abuse of the child or either of them of a physical nature. In that regard, I refer to and adopt and incorporate within these reasons paragraph 62 to 72 of the Full Court’s decision in Johnson & Page [2007] FamCA 1235 as to the standard to be applied to such determinations.
I am not satisfied in relation to each of these parents continuing a relationship with the children, that there is either an unacceptable risk or to the extent that there risk, I am satisfied that it is equal and balanced in each parent’s home and accordingly, absent any other alternative, the risk simply needs to be balanced and addressed as best one can.
In relation to family violence, I am satisfied on the basis of the convictions that have arisen in Local Courts and by reference to s.69ZX(3) that there has been family violence perpetrated by Mr D'Abreo to Ms Cantwell. In any event and lest I am incorrect in that regard, I note that I would be satisfied, pursuant to sub-s(4) of s.61DA, that it is simply not in the children’s best interests for the parents to have equal shared parental responsibility.
Clearly, with respect to X, he has expressed a firm view that he does not want his mother involved in making decisions for him. A child of that age, who is described by the report writer as being intelligent and intelligent beyond his years, should have his wishes respected. In any event, these parents simply cannot communicate or at least not do so without punctuating every sentence with the word “fuck” as an adjective noun and verb and using the most filthy language and terminology with respect to each other and other members of their household.
Communication is so poor that it would be a nonsense to suggest, as is required (and created as an obligation if an order for equal shared parental responsibility is made) by s.65DAC, that these parents would consult and endeavour to reach consensual decisions with each other and make a genuine effort to come to a joint decision. I can accurately predict, as would appear to be the basis of every decision made between these parents from at least separation, if not previously, that one simply asserts their will against the other and whatever the other proposes will instantly be rejected by the other.
Accordingly, I propose in due course to make orders for sole parental responsibility for each of the children, as is consistent with Ms S’s evidence.
That being the case, I am not mandated to consider equal or substantial and significant time, pursuant to s.65DAA(1) and (2) before considering any other time arrangement. However, lest I am wrong in that regard, I would indicate clearly that it is simply impractical by reference to the matters set out in s.65DAA(5) and especially the significant distance between the homes of these parents.
Any time arrangement that is ordered with respect to a child and their parent or parents is intended to further the objects and principles of the legislation, the primary considerations and the additional considerations that are in s.60CC. Time is not a prize, a reward, an expectation or an end in itself. It is a means to an end. Time is a means by which parents are offered and afforded the opportunity to have a meaningful involvement with and develop a meaningful with their children.
In determining time arrangements I am required to apply the dual tests of what is reasonably practicable and what is in the children’s best interests. In this case, I can dispose of both equal and substantial and significant time on the basis of reasonable practicality. These parties live what would appear to be at least eight-to-10 hours drive away from each other or a plane trip of some two hours involving a change of planes in Sydney. Neither party is in a strong financial position.
It would be impossible on that basis to suggest that equal or substantial and significant time could occur and, indeed, I am satisfied it would not be practical for any arrangement other than that which each of the parents (and tempered by the proposal of the Independent Children’s Lawyer) proposes, being that the children spend periods of school holidays with the other parent and that any weekend time occur in the same general vicinity as the child’s place of residence..
These parents live too far apart. Their current and future capacity to implement an arrangement of equal or substantially significant time is nil. Their current and future capacity to communicate and resolve difficulties is now, if not always, non-existent. The impact that such an arrangement would have on these children would be catastrophic. They would be travelling between two largely dysfunctional homes, both of which have been the subject of substantial concern and criticism and clearly have been in the past, if not continuing in the present and future, and I am satisfied in the case of Ms Cantwell is typified by violence and/or drug abuse.
In turning to s.60CC, I am required to commence by considering the primary considerations, being
a)The benefit to the child of having a meaningful relationship with both the child’s parents and
b)The need to protect the child from physical or psychological harm or being exposed to abuse, neglect or family violence. Abuse and family violence both have definitions in s.4 whereas neglect does not.
I have some concern about the ability of these children to form, develop, maintain or continue a meaningful relationship with either parent by reference to the discussion of meaningful relationship undertaken in Mazorski & Allbright [2007] FamCA 520. However, that is perhaps too harsh and unfair a criticism of these parents. I accept wholeheartedly that these parents love their children. That they have chosen for periods of their children’s lives to demonstrate that love through being opiate dependent and belligerent is regrettable.
That they have allowed their children to be exposed to a variety of events that could not have been beneficial to them is also regrettable. However, the benefit to the children of having such meaningful relationships is evident and certainly so in relation to Y. He clearly expresses his love and affection for both of his parents and his desire to have both of them in his life. He is described by Ms S, at paragraph 49 of the report, as a good-natured young boy, who cooperated. That is perhaps in contradistinction to what is observed by Ms S and by the Court of these parents in their dealings with the Court and with each other.
There are also a number of concerns arising from the report interviews (even bearing in mind in that it is suggested that Y was quite ill on the day of the observations. Mr D'Abreo is forceful in his criticisms that the appointments proceeded at all on that day and of the assistance and empathy that he received in dealing with Y’s illness). However, the concerns that arise from the report do not relate to this little boy being sick and having diarrhoea. They relate to that which comes under the heading of “Evaluation” and which touches particularly upon the primary considerations. It commences at paragraph 57 as follows:
“The assessment raised some significant concerns and aspects of both Ms Cantwell and Mr D'Abreo’s parenting of X and Y. However, I have been informed by the independent children’s lawyer that Community Services have declined to become parties in the matter.”
I hasten to add that that is a matter of some major bemusement to me. These parties have been known to the department, the police and other agencies since the first of the children were born, some 15 years ago. The fact that no action has been taken and that these children were in the early years of X’s life raised by drug-dependent parents, in the last 18 months or so since separation have been enmeshed in the most vile conflict between their parents and subject to a household, in the case of Ms Cantwell, where I accept that there is or was active opiate dependency by her and her partner, and at a time when the Department is actively involved in her partner’s children’s lives, is completely unacceptable.
In any event, there is some greater light at the end of the tunnel presented by Ms S. She suggests that there were a number of concerns brought up in relation to Ms Cantwell, not the least of which was the history of significant child protection concerns in relation to Mr B. and I accept that those concerns have some basis in fact, notwithstanding the protestation of Mr B. that they were entirely manufactured.
There was also a clear concern raised with respect to both Ms Cantwell’s and Mr B.’s lengthy history of drug misuse and in relation to Mr B., his most extensive and deplorable criminal record.
In relation to Mr D'Abreo, there were concerns about his parenting and possible antisocial personality traits. That opinion would appear to be based on a history of past offending and general presentation.
It was suggested that it was not possible to test the veracity of Ms Cantwell’s allegations as to violence. I have real concerns as to the lack of evidence presented by Ms Cantwell in that regard.
It was otherwise opined at paragraph 60:
“It was very evident that he, Mr D'Abreo, still feels bitter and angry about what he sees as Ms Cantwell’s betrayal of him through her relationship with Mr B.. There is still no financial settlement or divorce and this appears to be fuelling some of the anger.”
Clearly, that anger exists. The Court was invited to view Mr D'Abreo’s tattoo, but declined to do so, preferring instead simply to have it described. But the tattoo is a somewhat extreme step and nearly two years after separation to still be described as something that is viewed every day to remind him of something which clearly he does not need to be reminded of is disturbing.
Ms S, in paragraph 61, observes of Mr D'Abreo’s interaction with X as follows:
“His interaction would suggest that he is behaving in an emotionally manipulative way towards X and also attempting to do this with Y. X is very closely aligned to his father, but in my opinion still has emotional bonds to his mother. In my opinion, X would not do anything to go against his father’s wishes or directions with regard to his mother. X will, therefore, remain living with his father and Ms Cantwell, although angry and upset by his behaviour, appeared resigned to this.
I also formed the impression that Ms Cantwell was attempting to manipulate Y and to make negative comments about his father within his hearing. Both parents appeared to show a fairly minimal ability to restrain their own behaviour in order to develop a more neutral cooperative stance in relation to parenting of their children. This appears not to have changed since their separation.”
Indeed, this situation appears not to have changed based on the presentation of these parties in the witness box in the nearly one year that has passed since those opinions were expressed to Ms S.
Concerns were raised in relation to school attendance, future residence and compliance with orders and facilitation of a relationship. As I have indicated, ultimately, there was some guarded support for the placement of Y with his mother. But also it was recommended that there be observed chain of custody urine testing continued, that criminal records be updated and a number of other issues of concern raised of a compliance nature.
I have already canvassed those aspects of Ms S’s report, as it caused me some real concern as to the ability of these children to maintain a meaningful relationship or a relationship at all with both of their parents. I am satisfied that each will do anything and everything, consciously or unconsciously to destroy the other’s relationship.
As to the need to protect the child from physical or psychological harm, I am conscious that whilst there are allegations of past domestic violence raised by Ms Cantwell, evidentially they are difficult to accept. Ms Cantwell has chosen to leave in reserve the vast majority of allegations, and most serious allegations they are, to put them during cross-examination as responses to questions.
That, in my mind, in light of the Browne & Dunn problem and in light of the Jones & Dunkel (1959) 101 CLR 298 difficulties that would arise from the failure to previously raise such allegations or to produce clearly available corroborative evidence (Ms Cantwell continuously replying “if you ask….”) of any of the matters that she has raised, or for that matter that Mr B. has raised, causes me some real difficulty accepting them as unacceptable risks at this point. I am at least equally and perhaps more concerned that Y would not be protected from physical or psychological harm by Ms Cantwell or in her household. This is particularly so based on the less than frank, candid, or - particularly in the case of Mr B. – truthful evidence in relation to drug use in the immediate past and present, and his propensity for violence in his past relationships as demonstrated by Police and Departmental records.
The additional considerations are not secondary to the primary considerations and have the capacity to stand alone as considerations of their own importance as well as informing the primary considerations. I propose to deal with each of these considerations separately.
Views
X has clear views. He does not wish, at this point in time, to have a relationship with his mother. That is regrettable. In the long term it is probably detrimental to his wellbeing and future happiness, but it is how he is.
He is a boy who has been somewhat out of control of recent times. I hope that the guarded optimism expressed by Mr D'Abreo was well placed and that those matters can and will move forward once these proceedings are at an end.
However, his difficulties have not arisen in the last 12 months. His difficulties have been developing throughout his life and his childhood, and both of his parents have contributed to them and not as Ms Cantwell asserts, purely Mr D'Abreo.
Y, on the other hand, is described as showing no real reluctance or anxiety about seeing his mother at the time of report interviews. It should be remembered that at that time he was living with his father. Y clearly also enjoys a good relationship and bond with his father. To that extent Y has expressed a desire to continue to have a relationship with both of his parents.
Accordingly, I am satisfied that the children’s views are:
a)In relation to X, to remain living with his father and to have little or nothing to do with his mother except as he may seek out, and that would, of itself, require him to develop an ability to resist his father’s clear views, and
b)In relation to Y, that he has a desire to receive and reciprocate affection from both of his parents.
The child’s relationship with each of the parents
I note that Y presently would appear to have a good relationship with both parents, notwithstanding the complete inability of either to restrain themselves from expressing negative, hostile and unnecessary opinions to him about the other, and Mr B..
Those relationships, no doubt, will become more tested as he grows older. It may well ultimately result in him rejecting one or both of his parents, but I cannot predict anything in the future for Y with any great confidence or optimism. I can only, at this point, judge the relationship he presently has, which appears to be as good as he is allowed by either parent to have. X’s relationship on the other hand, whether there is bubbling beneath the surface, as Ms S has identified, some warmth and affection for his mother, has very little hope of bearing fruit in the foreseeable future.
Willingness and ability of each parent to facilitate a close and continuing relationship between the child.
In the time that I have spent on the bench of this court and indeed in many years of practice prior thereto I have rarely, if ever, seen two parents with a less manifest ability to accept the benefit of the other parent to the child. If each is accurate as to the allegations that they raise – and I have some concerns with respect to all of the evidence, although as it would be clear from the above reasons far more so Ms Cantwell and in particular, Mr B., who I found to be a reprehensible teller of untruths and implausible untruths at that – these parents may have some bases to hold such firm views. However, neither demonstrates any capacity to facilitate the relationship, nor do I have any confidence that by using powers given to me by the legislation and by making orders under s. 13C that I would achieve any positive change for these children.
Likely effect of change in the children’s circumstances
Ms S urges that perhaps when faced with such uncertainties as exist in this case that leaving the status quo to prevail may be the best outcome that can be achieved. Clearly this is not a case – again, without raising it purely to castigate the parents – where an optimum outcome can be achieved.
The best I can do, as referred to by the High Court in B & B and Minister of Immigration, is to adopt the least worst option. The difficulties I am faced with are that:
a)From the time these parents separated until late 2010 the two children lived together in the father’s care;
b)During that period of time there was what one might describe as an unrelenting campaign by Ms Cantwell to raise criticisms of the children’s care, however, Ms Cantwell manifested that by simply seeking to disregard the court’s orders and behaving in a fashion that was inappropriate;
c)Since the change occurred, about 12 months ago, Y has been in his mother’s care. Whilst it is suggested that he is doing well at school there is clearly no input or communication permitted by Mr D'Abreo in those arrangements and objectively he is not doing that well at school. He may be doing as well as he can or as well as he is permitted or supported to do, but he is hardly thriving.
The more fundamental concerns I have with respect to change are that if I leave things as they are and the evidence being as I accept it to be, I have real concerns for the potential of violence to be perpetrated by Mr B., if not towards Ms Cantwell, I accept certainly it has been towards others and it clearly has been involving Ms A and others, in particularly, his father-in-law. The police material introduced into evidence suggests that there have been a number of significant and nasty assaults of recent times involving Mr B..
The Police and Departmental material also would suggest that he at times gives as good as he gets. Mr B., as I have indicated, I do not accept as a witness who recognises, let alone speaks, truth. His implausible explanation with respect to his most recent offence causes me not only to be concerned as to the weight, if any, I can place upon his evidence, but more importantly causes me real concern, particularly when combined with his descriptions of how he and Ms Cantwell – and in particular he – have become involved in the Suboxone program, to doubt that he is drug free. I am satisfied that in all probability that he is not.
That being so I would have some real concerns as to Ms Cantwell’s present or future ability to remain drug free. Clearly she is not drug free as regards marijuana. Clearly she uses and readily obtains prescriptions for a number of medications, which she has not raised in her evidence but which came into evidence through tender in the Independent Children’s Lawyer’s case.
I am concerned in that regard that leaving things as they are may be to identify and recognise a potentially disadvantageous, if not dangerous, circumstance for this child and to ignore it.
That is not to suggest that Mr D'Abreo’s household is not without disadvantage or potential danger. However, I do not accept – as was put in Ms Cantwell’s case – that X represents a danger to his brother. Ms C’s evidence is that generally and ideally siblings should be together. Ms S suggested that children provide some real support to each other when their parents are separated and in warfare with each other as these two parents are and, as Ms S referred to, in that sense there is potentially some positive change for Y if he were to be reunited in his father’s household with his brother and removed from the drug culture and drug and criminal offending circumstances that appear to surround at least Mr B. if not Ms Cantwell.
Practical difficulty and expense
This is manifest. Clearly, any orders that are made will mean that during school terms any time spent with the child by the parent with whom he does not live will be spent in proximity to his home and by the parent travelling to him. It is a round trip that would make weekend time entirely impracticable and improbable. During school holidays there is much greater capacity for travel and particularly by air which, whilst that involves two trips and some hours of travel this little boy has already done and has some familiarity and experience of.
Capacity
Capacity of each parent is addressed in the above issues. I am concerned that each parent has a deficiency as regards their ability to meet, especially Y’s emotional and intellectual needs, through their failure and inability to restrain themselves or to reign in their dislike for the other and through their inability to control their own impulses and anger.
In the case of Ms Cantwell that is compounded as she faces the same difficulty with Mr B’s behaviour. He is a person who, on the basis of the findings I have made, being that:
a)He is in all probability not drug-free,
b)He has been anything but frank and candid as to his recent drug use and addiction and the reason and basis for his engagement with drug addiction services and
c)His offending behaviour is such that whilst in that mode he would represent a danger to himself and others.
I have no great confidence that Ms Cantwell would be in a position to protect this child from those behaviours. In the event that Mr B. and/or Ms Cantwell were using drugs the concern I have relates not only to their lack of truthfulness in their evidence, but more importantly their basic capacity to care for this child.
Maturity, sex, lifestyle and background.
As described by Ms S is a young and vulnerable child. She has described that in some ways he is less vulnerable than X, but that is purely because X is at a point where he is struggling with his own adolescent emotions. He is a vulnerable child in the sense that he cannot care for himself nor should he be left to fend for himself when his parents are unable to do so through drug use or otherwise.
Aboriginality and Torres Strait Islander background
This is not suggested or raised as relevant.
The attitude to the child and responsibilities of parenthood demonstrated by each parent.
Clearly, I am not satisfied that either parent is covered in glory in this regard. Both of these parents have serious shortcomings that they should address if they are to allow Y, in particular, to achieve his full potential in life. It would be cruel and unkind for them to bring him into this world and not give him that opportunity. I am satisfied at this point that the greater potential for that to occur - and in this case I am dealing with potentiality rather than actuality – is with Mr D'Abreo.
Family violence involving the child
As I have indicated I have real concerns, by reference to long-standing authority, such as Browne & Dunn and Jones & Dunkel as to the acceptance of the majority of evidence led or purported to be led by Ms Cantwell with respect to violence. There has been no corroboration of a single event (notwithstanding Ms Cantwell identifying a number of alleged sources of corroboration), no suggestion of particulars or detail in relation to the events and quite frankly, the manner in which she has sought to inform this court in that regard falls so far short of the mark as to be unhelpful if not useless.
Family violence orders.
There are no family violence orders in force. There have been family violence orders in the past but they would appear to have expired. Lest I am wrong in that regard orders would appear to apply (or have applied) to both households, as certainly Mr B. is subject to a number of orders in relation to his former partner.
Any other fact or circumstance that the Court thinks relevant.
What would be abundantly clear from the above lengthy discussion of the parties’ evidence is that the task in this case is onerous. An attempt is always made to approach a parenting case by accentuating the positives and, as far as practicable, eliminating negatives. To look for positive outcomes that would best enhance the future care, wellbeing and development of a particular child is desirable. In this case, in the manner it has been conducted by the parties, the focus has been entirely negative.
The focus of the case has been completely upon deficits, fault and past history of atrocious behaviour. If these parents do not change their children will simply become multi-generational dysfunctional Centrelink recipients who will be emotionally damaged if not mentally disturbed and will play little or no active or useful role in society. That is not to adopt entirely the comments made by Ms C that these are parents who live outside of the community’s norms.
It is entirely a matter for Mr D'Abreo and Ms Cantwell and for that matter, Mr B., how they choose to live their life. If Mr B. wants to live his life by continuously perpetrating violence, dishonesty and abusing his own body through drug use that is entirely a matter for him. It is a cost to the community and it is certainly, to the extent that he is a member of Ms Cantwell’s household, a cost to her, that household and the children who live in it, including his own child. Similarly, with respect to Ms Cantwell, if she wishes to fill her day travelling between different doctors and pharmacies to fill scripts to fuel whatever need she has to take a quantity of different medications and the effect that that this would have upon her wellbeing, her physiological and emotional health, and parenting capacity that is a matter for her.
If Mr D'Abreo wishes to remain angry and bitter for the rest of his days at the betrayal that he feels he has experienced at the hands of Ms Cantwell, so be it, but each of them needs to step back and attempt to see the world through Y’s eyes, to squeeze their large adult feet into his small shoes and to understand that he loves them both, that he needs them both to do a variety of things for him and to desist from doing a variety of things. That he need not, at the age that he is, be expected to comprehend and understand the emotions, the feelings and the carrying on of the various adults who surround him in his life. Whilst each of these adults profess to love him a great deal they seem to be fairly intent through their actions and inactions to cause him as much distress and harm as possible.
If the Department had intervened - and I have been highly critical of them, the failing to do so – or, indeed, if they had provided a response to the s.69ZW request in a timely fashion, there may have been some option available or suggested that might have been of assistance, but I am finding it difficult to understand what it would have been. It would not necessarily be a better outcome for Y to be removed from both of his parents and placed into foster care. That would simply perpetrate yet another disadvantage to this child. He already has enough and has had enough.
I have no confidence that the orders I make will provide an ideal or optimal arrangement for this little boy, however, I am focused upon being concerned to ensure that he has the best opportunity he can to have a relationship with both of his parents, but most importantly and fundamentally in my mind and consistent with s.60CC(2)(b) to be protected from psychological and physical harm. I find on balance – and it is a very fine balance – that the most likely environment to achieve that outcome would be to reunite Y with his brother in his father’s care in (omitted).
At the conclusion of these proceedings, as is required of the Independent Children's Lawyer and in accordance with the grant of Legal Aid funding his appointment, an application for costs is made. That application for costs is made as regards the applicant, Mr D'Abreo, as he is not in receipt of grant of Legal Aid and has not received any waiver for contribution through the Commission.
Ms Cantwell has been legally aided and accordingly no contribution is sought against her and in any event, sub-s(4) of s.117 would preclude such an order being made.
The order that is sought is that Mr D'Abreo contribute a sum of $7,945 to the Legal Aid Commission in reimbursement of costs incurred by the Commission.
Any application for costs made by a party or the Independent Children's Lawyer is governed by s.117 of the Act as discussed succinctly by O’Reilly J, sitting as the Full Court of the Family Court on appeal from a Federal Magistrate in Casley & Casley (costs) [2010] FamCAFC 189 it is necessary, so as to enliven the court’s jurisdiction to make an order for costs, to cross the hurdles identified by the High Court in re JJT ex parte Victorian Legal Aid [1998] FLC 92-812 in which the Court said:
“Section 117(2) of the Act referred to costs in the conventional sense and payment by one party to litigation of money by way of a partial indemnity for professional legal fees and expenses actually incurred by another party in the course of the litigation an order for costs is made to compensate a party against expense incurred in litigation and is not punitive in nature. Costs are not a penalty of damages.”
His Honour went on to indicate as follows:
“Subsection (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. It is to be noted that even if circumstances justifying an order for costs are found that it must be separately considered whether it is just to make the order. They are separate tests.”
In that regard, s.117 sets out, in sub-s(1) a general proposition that each party to under the Act should be his or her own costs.
Sub-s(2) reserves the jurisdiction of the court to make an order for costs in the following terms.
“If, in proceedings under this Act the court is of the opinion that there are circumstances that justify it in doing so the Court may, subject to subsection(2A)(4) and (5) and the applicable Rules of Court make such orders as costs and security for costs whether by way of interlocutory order or otherwise if the Court considers just.”
Sub-s(3) ended any controversy that may have been suggested to have existed prior to the 2006 amendments by making clear that the Court may make an order for costs in favour of an independent children's lawyer.
Sub-ss(4) and (5) of s.117 deals specifically with orders for costs in relation to independent children's lawyers. Sub-s(4) precludes the making of an order for costs in favour of an Independent Children’s Lawyer if a party to the proceedings has [emphasis added] received Legal Aid in the proceedings. The wording of that section would suggest that if a party had received Legal Aid funding, for instance, for the purpose of attending a pre litigation conference but was not otherwise been funded, that there may be some impediment to an order for costs being made.
The second circumstances in which the Court is precluded from making an order for costs is if the Court considers that a party to the proceedings would suffer financial hardship if they had to bear a portion of the costs. In those circumstances the Court is mandated to not make a costs order.
Sub-s(5) provides that in considering any order that should be made in favour of an Independent Children's Lawyer the Court must disregard the fact that the independent children's lawyer is funded under a Legal Aid scheme or service under commonwealth, State or Territory law or as approved by the Attorney-General.
That provision, again, having been introduced in 2006, ends controversy that existed and arising from a number of Full Court decision made prior thereto discussing public policy reasoning and the funding of such commissions.
Sub-s(2A) sets out the matters that I must have regard to in addition to s.117(4)(b).
I must have regard to the financial circumstances of each of the parties. I am not specifically aware of the details of each party’s financial circumstances and particularly not Mr D'Abreo’s. However, beyond having purchased a home with funds that he received by way of inheritance and having given evidence during the proceedings that whilst he had funded travel for Y to travel by air to spend time with him, that he was no longer in a position to fund such travel, I have no clear evidence. I can infer from that that Mr D'Abreo is not in a healthy financial position.
I am required to consider whether a party is in receipt of Legal Aid, which Mr D'Abreo indicates he is not and has not been.
I am required to consider the conduct of the parties to the proceedings. There is some minor criticism of Mr D'Abreo in having relocated to (omitted) in December but upon the hearing of the totality of evidence in this case over four days, it is clear that there was some reason for that beyond a simple disregard of the Court’s authority. Accordingly, I am not satisfied that there was any issue with respect to Mr D'Abreo’s conduct that would warrant an order for costs.
I am required to consider whether the proceedings were necessitated by the failure of a party complying with an order which is not relevant.
I am required to consider whether a party has been wholly unsuccessful, which in the case of Mr D'Abreo could not be so.
I am required to consider offers that have been made in writing. I am not advised of any.
Overall, having regard to s.117(2A) and s.117(4)(b), I am satisfied that Mr D'Abreo would, indeed, suffer financial hardship particularly as he is not presently employed and will now have the care of the two children of the relationship and, on that basis, will very much have his hands full.
There would be financial hardship to Mr D'Abreo and thus I am precluded by s.117(4) to make an order for costs.
I certify that the preceding two hundred and fifty-nine (259) paragraphs are a true copy of the reasons for judgment of Harman FM
Date: 6 February 2012
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