Denny and Denny and Serle and Denny
[2013] FMCAfam 80
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DENNY & DENNY and SERLE & DENNY | [2013] FMCAfam 80 |
| FAMILY LAW – Parenting orders in consolidated proceedings – child with ongoing grave medical condition – Father with long history of drug and alcohol abuse – claims by Father that the binge-use of alcohol and drugs was his way of coping and self-medicating – best interest considerations – Father in two consecutive relationships with children to separate Mothers. |
| Family Law Act1975 ss.60B, 60CA, 60CC(3)(a), (b), (c), (d), (f), (g), (i), 61DA, 65DAA Federal Court Rules2011, r.30.11 Federal Magistrates Court Rules2001, r.1.05, 1.06, 15.01 |
| ACCC v Smartcom Telecommunications Pty Ltd [1996] FCA 1285 Lord Goff, “The Mental Element in the Crime of Murder,” (1988) 104 Law Quarterly Review 30 |
| Applicant: | MS DENNY |
| Respondent: | MR DENNY |
| File Number: | CAC 511 of 2011 |
| Applicant: | MS SERLE |
| Respondent: | MR DENNY |
| File Number: | CAC 682 of 2011 |
| Judgment of: | FM Neville |
| Hearing dates: | 20, 21 & 22 February 2012 and 14 & 15 June 2012 |
| Date of Last Submission: | 13 August 2012 |
| Delivered at: | Canberra |
| Delivered on: | 21 February 2013 |
REPRESENTATION
| Counsel for the Applicants: | Ms A Tonkin |
| Solicitors for the Applicants: | Mazengarb Barralet Family Lawyers, Canberra |
| Counsel for the Respondent: | Mr C McKeown |
| Solicitors for the Respondent: | Joseph Tallarita, Barristers & Solicitors Canberra |
| Solicitor/Advocate for the Independent Children’s Lawyer: | Mr Ridge |
| Solicitors for the Independent Children’s Lawyer: | Barker & Barker, Canberra |
ORDERS
DENNY & DENNY CAC 511 OF 2011
Subject to the conditions in 1(a) of these orders, the Mother has sole parental responsibility for the child [Y], born [in] 2001.
(a)in the event that the Father successfully completes the 18 month drug testing regime as stipulated at Order 15, both parents will have equal shared parental responsibility for the child [Y] born [in] 2001, for day to day matters.
The child lives with the Mother.
The child spends time with the Father as follows:
(a)in fortnight one, for two hours supervised by a professional supervision agency or [M] Child and Family Centre (“[M]”); and
(b)in fortnight two, for four hours supervised by the paternal grandparents; or
(c)at other times as agreed in writing between the parties.
For the purposes of Order 3(a) above:
(a)the child will spend time with the Father from 12:00 midday to 2:00pm on the first Saturday of the fortnight;
(b)the Father will organise and inform the Mother of the location of the time within 3 days prior to the proposed time if the location and supervision is not at [M];
(c)the Mother will deliver and pickup the child from the proposed location; and
(d)the proposed location time is spent with the child will be in Canberra.
For the purposes of Order 3(b) above:
(a)the child will spend time with the Father from 12:00 midday to 4:00pm on the first Saturday of the fortnight;
(b)the Father will organise and inform the Mother of the location of the time within 3 days prior to the proposed contact; and
(c)handover of the child will occur at the [B] McDonalds Restaurant unless as otherwise agreed between the parties and the Mother shall deliver and pickup the child at the commencement and conclusion of time spent.
(d)the Grandparents will provide appropriate undertakings in writing to govern any time they supervise between the Father and the child.
Order 3 of these Orders be suspended on Father’s Day and the child spend time with the Father for four hours supervised by a professional supervision agency or the paternal Grandparents.
The child be permitted to leave the Commonwealth of Australia notwithstanding that the consent of the child’s Father has not been obtained provided that the Mother has given the Father 21 days notice of her intention to take the child out of the Commonwealth of Australia and provided to the Father a copy of any such itinerary.
Notwithstanding the above Orders, the Father is to spend time with the child on her birthday;
(a)if the day falls on a week day, for two hours, supervised by a professional supervision agency or the paternal grandparents; or
(b)if the day falls on a weekend, for four hours, supervised by a professional supervision agency or the paternal grandparents.
The Father be able to communicate with the child by phone between 6:00pm and 7:00pm twice per week at such times as agreed between the parties, such communication to be initiated by the Father.
The people with whom the child spends time with while with the Father is limited to the child, the child’s siblings, the Father and the supervisor/s and that no third party will participate in the supervised time without the prior consent of the Mother.
The Father is not to have any further time with the child unless as provided for in these Orders or as agreed in writing between the parties.
If the Mother is unable to make the child available to spend time with the Father in accordance with these Orders, the Mother will provide to the Father 7 days notice and an opportunity to participate in “make-up time” with the child.
The Father is to provide 48 hours notice to the Mother of his intention to cancel time with the child.
The Father is prohibited from taking the child to “[D]’s” and “[K]” or similar dedicated drinking venues whilst the child is in his care.
The Father do all things necessary to comply with the following drug testing regime for a period of 18 months:
(a)once every three months, at the request of the ICL, from the date of this order the Father is to undergo random hair follicle testing and the Father is to provide to the Mother a copy of the test results within 24 hours of the Father receiving the results;
(b)the Father is to authorise the drug testing laboratory to provide all such information as is requested by the Mother in relation to the Father’s hair follicle testing and results.
(c)the cost of all hair follicle testing to be paid for by the Father;
(d)if the Father fails or neglects to undertake a hair follicle test or fails to submit a sample for testing or fails to provide a copy of the test results to the Mother, the test will be taken to be positive for the purposes of these Orders;
(e)the Father is to participate in a pattern of drug and alcohol counselling with Directions ACT or similar drug and alcohol counselling provider;
(f)for a minimum period of 12 months from the date of these Orders.
(g)the Father is to participate in a program of relapse prevention with Directions ACT or similar relapse prevention program provider;
(h)for a further period of 24 months from the end of the 12 month period referred to in Order 15(e)(i) above.
(i)if the Father fails three drug tests within a period of 12 months, final orders as sought by the Mother will be made.
The Mother will authorise all medical and health professionals to provide details of the child’s treatment to the Father at the Father’s request.
The Mother will inform the Father as soon as practicable if the child requires urgent medical treatment.
The Mother authorise the child’s school to provide to the Father the child’s school reports and newsletters at the request of the Father.
The Father is restrained from the consumption of alcohol or illicit drugs during the time that the child is in his care or for 24 hours prior to the child coming into his care.
Each of the parties are restrained from speaking in a derogatory manner about the other, either to the child or in her presence, or allowing any other person to do so.
AND IT IS NOTED THAT:
A.It is agreed between the parties that it is a condition precedent to the commencement of these Orders that the paternal grandparents provide an executed undertaking to the Federal Magistrates Court, in terms as agreed between the parties, prior to undertaking any supervision in accordance with these Orders.
B.To ensure the Grandparents are informed as fully as possible as to the circumstances of the Orders made by the Court. It is requested that the Independence Children’s Lawyer provide the Grandparents with a copy of the judgment in this matter.
C.Where practicable the Father’s time with the child shall coincide with the time he spends with his daughter [Z], born [in] 2006.
ORDERS
SERLE & DENNY CAC 682 OF 2011
Subject to the conditions in 1(a) and 1(b) of these orders, the Mother has sole parental responsibility for the child [Z], born [in] 2006.
(a)in the event that the Father successfully completes the 18 month drug testing regime as stipulated at Order 15, both parents will thereafter have equal shared parental responsibility for the child [Z] born [in] 2006, for day to day matters.
(b)in relation to any decisions concerning the child’s health, if issues are unable to be agreed upon by the parties, the final decision will rest with the Mother.
The child lives with the Mother.
The child spends time with the Father as follows:
(a)in fortnight one, for two hours supervised by a professional supervision agency or [M] Child and Family Centre (“[M]”); and
(b)in fortnight two, for four hours supervised by the paternal Grandparents; or
(c)at other times as agreed in writing between the parties.
For the purposes of Order 3(a) above:
(a)the child will spend time with the Father from 12:00 midday to 2:00pm on the first Saturday of the fortnight;
(b)the Father will organise and inform the Mother of the location of the time within 3 days prior to the proposed time if the location and supervision is not at [M];
(c)the Mother will deliver and pickup the child from the proposed location; and
(d)the proposed location the Father will spend time with the child shall be in Canberra.
For the purposes of Order 3(b) above:
(a)the child will spend time with the Father from 12:00 midday to 4:00pm on the first Saturday of the fortnight;
(b)the Father will organise and inform the Mother of the location of the time within 3 days prior to the proposed time; and
(c)handover of the child will occur at the [B] McDonalds Restaurant unless as otherwise agreed between the parties and the Mother shall deliver and pickup the child at the commencement and conclusion of time spent.
(d)the Grandparents will provide appropriate undertakings in writing to govern any time they supervise between the Father and the child.
Order 3 of these Orders be suspended on Father’s Day and the child spend time with the Father for four hours supervised by a professional supervision agency or the paternal grandparents.
The child be permitted to leave the Commonwealth of Australia notwithstanding that the consent of the child’s Father has not been obtained provided that the Mother has given the Father 21 days notice of her intention to take the child out of the Commonwealth of Australia and provided to the Father a copy of any such itinerary.
Notwithstanding the above Orders, the Father is to spend time with the child on her birthday;
(a)if the day falls on a week day, for two hours, supervised by a professional supervision agency or the paternal grandparents; or
(b)if the day falls on a weekend, for four hours, supervised by a professional supervision agency or the paternal grandparents.
The Father be able to communicate with the child by phone between 6:00pm and 7:00pm twice per week at such times as agreed between the parties, such communication to be initiated by the Father.
The people with whom the child spends time with while with the Father is limited to the child, the child’s siblings, the Father and the supervisor/s and that no third party will participate in the supervised time without the prior consent of the Mother.
The Father is not to have any further time with the child unless as provided for in these Orders or as agreed in writing between the parties.
If the Mother is unable to make the child available to spend time with the Father in accordance with these Orders, the Mother will provide to the Father 7 days notice and an opportunity to participate in “make-up time” with the child.
The Father is to provide 48 hours notice to the Mother of his intention to cancel time with the child.
The Father is prohibited from taking the child to “[D]’s” and “[K]” or similar dedicated drinking venues whilst the child is in his care.
The Father do all things necessary to comply with the following drug testing regime for a period of 18 months:
(a)once every three months, at the request of the ICL, from the date of this order the Father is to undergo random hair follicle testing and the Father is to provide to the Mother a copy of the test results within 24 hours of the Father receiving the results;
(b)the Father is to authorise the drug testing laboratory to provide all such information as is requested by the Mother in relation to the Father’s hair follicle testing and results;
(c)the cost of all hair follicle testing to be paid for by the Father;
(d)if the Father fails or neglects to undertake a hair follicle test or fails to submit a sample for testing or fails to provide a copy of the test results to the Mother, the test will be taken to be positive for the purposes of these Orders;
(e)the Father is to participate in a pattern of drug and alcohol counselling with Directions ACT or similar drug and alcohol counselling provider;
(i) for a minimum period of 12 months from the date of these Orders.
(f)The Father is to participate in a program of relapse prevention with Directions ACT or similar relapse prevention program provider;
(i) for a further period of 24 months from the end of the 12 month period referred to in Order 15(e)(i) above.
(g)If the Father fails three drug tests within a period of 12 months, final orders as sought by the Mother will be made.
The Mother will authorise all medical and health professionals to provide details of the child’s treatment to the Father at the Father’s request.
The Mother will inform the Father as soon as practicable if the child requires urgent medical treatment.
The Mother authorise the child’s school to provide to the Father the child’s school reports and newsletters at the request of the Father.
The Father is restrained from the consumption of alcohol or illicit drugs during the time that the child is in his care or for 24 hours prior to the child coming into his care.
Each of the parties are restrained from speaking in a derogatory manner about the other, either to the child or in her presence, or allowing any other person to do so.
AND IT IS NOTED THAT:
A.The Father will provide and have properly installed in to any vehicle carrying the child, a child seat and restraint suitable for transporting the child taking in to account her age and weight.
B.It is agreed between the parties that it is a condition precedent to the commencement of these Orders that the paternal grandparents provide an executed undertaking to the Federal Magistrates Court, in terms as agreed between the parties, prior to undertaking any supervision in accordance with these Orders.
C.To ensure the Grandparents are informed as fully as possible as to the circumstances of the Orders made by the Court. It is requested that the Independence Children’s Lawyer provide the Grandparents with a copy of the judgment in this matter.
D.Where practicable the Father’s time with the child shall coincide with the time he spends with his daughter [Y], born [in] 2001.
E.The Father is permitted to attend upon [Z]’s swimming lessons.
IT IS NOTED that publication of this judgment under the pseudonym Denny & Denny and Serle & Denny is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 511 of 2011
| MS DENNY |
Applicant
And
| MR DENNY |
Respondent
CAC 682 of 2011
| MS SERLE |
Applicant
And
| MR DENNY |
Respondent
REASONS FOR JUDGMENT
Introduction
On 17th November 2011 orders were made by consent for these separate parenting matters to be consolidated and heard concurrently.[1]
[1] In relation to consolidation of proceedings generally, see: rr.1.05, 1.06 & 15.01 Federal Magistrates Court Rules2001; r.30.11 Federal Court Rules 2011, and the comments by Tamberlin J in ACCC v Smartcom Telecommunications Pty Ltd [1996] FCA 1285, at [3] (quoting Priestley J in R v Oliver (1984) 57 ALR 543): “prejudice to the accused and, on the other hand, the question of the public interest in the efficient dispatch of trials, the conserving of costs and the avoidance of any inconvenience to witnesses by having to attend a number of trials. I myself would add to these [discretionary] matters the desirability of having the various people allegedly concerned in the one crime being all dealt with by the one litigation unless positive injustice would be caused by it.” To similar effect in civil proceedings, see Re Ling: Ex parte Ling v Commonwealth (1995) 58 FCR 129 where Hill J said, at [18]: “It suffices that it is desirable that an order for consolidation be made. The rule confers upon the Court a broad discretion to make orders for consolidation where it is in the interests of justice so to do. Relevant to the exercise of discretion would be the desirability of avoiding multiple actions, the saving of time and expense and whether the parties would be prejudiced by such a course…” More recently still, see the discussion by Jacobson J in Aristocrat Technologies Australia Pty Limited v Global Gaming Supplies Pty Limited [2007] FCA 943.
The proceedings concern the determination of parenting orders that are in the best interests of 11 year old [Y] and 6 year old [Z].[2] The Applicant in the first proceeding is the Mother of [Y]; the Applicant in the second matter is the Mother of [Z]. The Respondent, Mr Denny, is the Father of both children. He was [obviously] in a relationship with both Applicant Mothers (at different times); he was married to one (Ms Denny), and in a [later] de facto relationship with the other (Ms Serle).
[2] See s.60CA of the Family Law Act1975 (“the Act”).
Among the plethora of matters that were canvassed at the lengthy trial was the very serious, indeed grave, medical condition of young [Z], who suffers from cardiomyopathy. She may require, at some stage, a heart transplant. Her lungs are damaged also. In this and in other respects, parental responsibility was and remains a critical issue.
At one stage there was discussion whether an order under s.67ZC of the Act might either be required, or was more appropriate in relation to any medical treatment that might ultimately be required for [Z]. However, in the result, no such order was formally sought, and fortunately, as at the time of the hearing, [Z] was physically well, albeit with regular check-ups by her medical specialists.[3]
[3] Among other places, see T (21st February 2012) p.116. See also Exhibits A and M, being (respectively) a report from the [omitted] Children’s Hospital, Melbourne, dated 3rd February 2012, and medical records in relation to [Z]. Ultimately, neither [Z]’s cardiologist in Melbourne, nor her paediatrician in Sydney, were required for cross-examination.
Further, among many matters evident throughout the hearing of the combined matters is the concern, if not the strategic and psychological unease – as Mr Denny sees it – that both Mothers have pooled resources (legal, emotional, and materiel more generally) to thwart his time with his children. Indeed, ‘the Mothers’ and their supporters were referred to not infrequently throughout the proceedings by Counsel for the Father as “the Squad” – to which Counsel for the Mothers’ unsurprisingly objected.[4]
[4] Among other places, see Transcript (21st February 2012) p.121; the discussion with Counsel for the Father, at Transcript (22nd February 2012) pp.100 & 101; and further references at Transcript (14th June 2012) pp.80-82 & 91. Hereafter, transcript references will simply be by “T” followed by the relevant date and page number.
Given Mr Denny’s resolve, and his general resilience (his Counsel confirmed that he suspected that he was not a ‘shrinking violet’)[5], I would think it extremely surprising that he would be cowed or intimidated by one or both of his former partners (or by any combination of them and their ‘supporters’). Rather, my strong impression was that he simply did not, and would not, as he would see it, be dictated to by either of the children’s Mothers.[6]
[5] See T (22nd February 2012) p.100.
[6] Ibid.
There is another, older child of the relationship between Mr Denny and Ms Denny ([X]), but no formal orders are sought in relation to her.
In short, the issues in dispute are: (a) parental responsibility, (b) the time the children spend with their Father, (c) whether that time needs be supervised, and if so, by whom, and (d) if supervised, how long should the Father’s time with the children remain supervised. A further, concomitant issue for the Mothers, and I should also say for the Court, is the Father’s somewhat peripatetic living situation.[7]
[7] Among other places, see the discussion of Mr Denny’s accommodation of two rooms in a group house: T (21st February 2012) p.173.
The Mothers’ concerns of the Father’s capacity to fulfil his parental responsibilities stem from his long term excessive alcohol consumption and equally long history of drug use, and some attendant mental health issues, such as depression.[8] Some questions were also raised about his lack of suitable accommodation for the children to spend time with their Father.[9]
[8] See, for example, the discussion at T (21st February 2012) pp.173-174. See also exhibit F being patient records for Mr Denny from [omitted] Hospital, [omitted], in 2002.
[9] Among other places, see T (14th June 2012) pp.42-43.
On the Father’s evidence, and it was little disputed, both his alcohol and drug use was a form of ‘self-medication’ to enable Mr Denny to deal with the long-term and on-going consequences of abuse which he suffered as a child at the hands of one or more religious instructors. Indeed, he candidly confirmed, and on more than one occasion during his cross-examination, that his coping mechanism has been binge drinking and the use of marijuana.[10] At the same time, although
Mr Denny confirmed that he had a problem with alcohol for more than 20 years, he maintained that he did not now have a problem with either alcohol or drugs.[11]
[10] See, for example, T (22nd February 2012) p.34.
[11]In the course of the trial, Counsel for Mr Denny highlighted the issues as seen by his client. It is helpful to record the detail of Counsel’s remarks, which highlight the relatively narrow, indeed precise, scope of the dispute. Counsel for the Father said:[12]
… if we’re arguing about supervised contact, then I will get instructions to curtail this matter. It’s the parental – sole parental – issue which stirs my client, I suspect, more.
[12] See T (22nd February 2012) p.98. See also p.101 of the same transcript, and pp.3-4 of T (14th June 2012). Mr Denny himself referred directly to his angst concerning the sole parental responsibility order sought by Ms Serle in relation to [Z] at T (21st February 2012) p.177.
Three comments can be made here. First, Mr Denny confirmed that he had no difficulty with an order that required him to undergo drug and alcohol testing, provided the initiation of such tests did not come from either of the children’s Mothers.[13] Secondly, the primary issue of concern for Mr Denny, as confirmed by his Counsel as I have noted, relates to “parental responsibility.”[14] Thirdly, Mr Denny complained on a number of occasions during the trial that, in effect, it was a bit rich for ‘the Mothers’ now to protest about his drug and alcohol use when, at times (if not somewhat regularly) when in a relationship with him the same women indulged or imbibed at the same time.[15] For their part, the Mothers’ either deny outright, or refute either that they condoned or participated in the activities mentioned to the degree alleged. For my part, in relation to this aspect of the contest, it did little to help me. Indeed, to make such accusations (or justifications) is not directly of much or any assistance because the only function of the Court is to make orders that are in the best interests of the children. Accusations of hypocrisy assist me not at all.
[13] See T (22nd February 2012) p.25.
[14] See T (22nd February 2012) pp.98 & 101. See, too, T (20th February 2012) p.6.
[15] Among various places, see comments by his Counsel at Transcript (20th February 2012) p.9. In more detail, see Mr Denny’s evidence on the fourth day of the trial, T (14th June 2012) p.91, where he described the position or attitude of the Mothers as “farcical.” Respectfully, for the reasons set out below, I disagree.
In addition to these brief comments, a further observation can and should be made. It was made also during the course of the lengthy trial, and on more than one occasion. Given the narrow scope of the issues to be determined, it was, and remains, alarming, how many resources of the parties and of the Court were required in order to resolve them. I do not necessarily draw any adverse conclusion or inference against anyone (party or lawyer); however, a more reasoned and common-sense approach should have prevailed to keep the confines of the hearing at least to the three days originally scheduled rather than the Court having to find an additional two days to conclude the trial. The pity is that the Court made its views known early on in the proceeding, as did the experienced ICL. Indeed, at the end of day three of the trial the ICL confirmed that his views (a) had not changed, and (b) had in fact been confirmed further by the evidence of the need for supervision of the Father’s time with the children, and for relevant drug and alcohol testing.[16] Notwithstanding these clear “indications” the case proceeded rather dolefully and ineluctably on. There was almost a sense of underlying defiance, in the light of the clear indications given, for the Court to make a decision because there would not be agreement.
[16] See T (22nd February 2012) p.97.
As the trial progressed, and having reviewed the transcripts as well, in my view, the evidence can be treated somewhat more summarily than might otherwise be the case. By this I mean that, because (a)
Mr Denny was in the witness box for the majority of the trial, (b) [correspondingly], his two former partners (and three supporting witnesses) spent only a very modest time under cross-examination, (c) Mr Denny’s open acknowledgment of his long history of drug and alcohol use, and (d) the primary issues relate to parental responsibility and the duration of supervision, a more synoptic treatment of the evidence will properly suffice before considering the appropriate orders that are in the children’s best interests.
In order, these reasons proceed as follows: (a) outline of orders sought (perhaps somewhat unusually, I also include a chronology – helpfully prepared by the independent children’s lawyer (“the ICL”) at this point to facilitate the understanding of the complex familial relationships and the general sequence in which they arise); (b) evidence of witnesses; (c) evidence of family consultant; (d) submissions; (e) consideration & conclusion.
Orders Sought
Orders sought by the First Applicant Mother (Mrs Denny):
(1)That the Mother has sole parental responsibility for the child [Y], born [in] 2001.
(2)That the child lives with the Mother.
(3)That the child spends time with the Father as follows:
(a) In fortnight one, for two hours supervised by a professional supervision agency or [M] Child and Family Centre (“[M]”); and
(b) In fortnight two, for four hours supervised by the paternal grandparents; or
(c) At other times as agreed between the parties.
(4)For the purposes of Order 3(a) above:
(a) The child will spend time with the Father from 12:00 midday to 2:00pm on the first Saturday of the fortnight;
(b) The Father will organise and inform the Mother of the location of the contact within 3 days prior to the proposed contact if the location and supervision is not at [M];
(c) The Mother will deliver and pickup the child from the proposed contact location; and
(d) The proposed contact location shall be in Canberra
(5)For the purposes of Order 3(b) above:
(a) The child will spend time with the Father from 12:00 midday to 4:00pm on the first Saturday of the fortnight;
(b) The Father will organise and inform the Mother of the location of the contact within 3 days prior to the proposed contact; and
(c) Handover of the child will occur at the [B] McDonalds Restaurant unless as otherwise agreed between the parties and the Mother shall deliver and pickup the child at the commencement and conclusion of time spent.
(6)Order 3 of these Orders be suspended on Father’s Day and the child spend time with the Father for four hours supervised by a professional supervision agency or the paternal grandparents.
(7)That the child be permitted to leave the Commonwealth of Australia notwithstanding that the consent of the child’s Father has not been obtained provided that the Mother has given the Father 21 days notice of her intention to take the child out of the Commonwealth of Australia and provided to the Father a copy of any such itinerary.
(8)Notwithstanding the above Orders, the Father is to spend time with the child on her birthday;
(a) If the day falls on a week day, for two hours, supervised by a professional supervision agency or the paternal grandparents; or
(b) If the day falls on a weekend, for four hours, supervised by a professional supervision agency or the paternal grandparents.
(9)That the Father be able to communicate with the child by phone between 6:00pm and 7:00pm twice per week at such times as agreed between the parties, such communication to be initiated by the Father.
(10)That the people with whom the child spends time with while with the Father is limited to the child, the child’s siblings, the Father and the supervisor/s and that no third party will participate in the supervised contact without the prior consent of the Mother.
(11)The Father is not to have any further contact with the child unless as provided for in these Orders as agreed between the parties.
(12)If the Mother is unable to make the child available to spend time with the Father in accordance with these Orders, the Mother will provide to the Father 7 days notice and an opportunity to participate in make up contact with the child.
(13)That the Father is to provide 48 hours notice to the Mother of his intention to cancel contact with the child.
(14)That the Father is prohibited from taking the child to “[D]’s” and “[K]” whilst the child is in his care.
(15)The Father do all things necessary to comply with the following drug testing regime for a period of 36 months:
(a)Once every three months from the date of this order the Father is to undergo hair follicle testing and the Father is to provide to the Mother a copy of the test results within 24 hours of the Father receiving the results;
(b)The Father is to authorise the drug testing laboratory to provide all such information as is requested by the Mother in relation to the Father’s hair follicle testing and results.
(c)The cost of all hair follicle testing to be paid for by the Father;
(d)If the Father fails or neglects to undertake a hair follicle test or fails to submit a sample for testing or fails to provide a copy of the test results to the Mother, the test will be taken to be positive for the purposes of these Orders;
(e)The Father is to participate in a pattern of drug and alcohol counselling with Directions ACT or similar drug and alcohol counselling provider;
(i) For a minimum period of 12 months from the date of these Orders; and
(ii) The Father shall authorise the provider to provide to the Mother on a monthly basis reports outlining the Father’s participation and abstinence from drugs and alcohol.
(f)The Father is to participate in a program of relapse prevention with Directions ACT or similar relapse prevention program provider;
(i)For a further period of 24 months from the end of the 12 month period referred to in Order 15(f)(i) above; and
(ii)The Father shall authorise the provider to provide to the Mother monthly reports outlining the Father’s participation and abstinence from drugs and alcohol.
(16)That the Mother will authorise all medical and health professionals to provide details of the child’s treatment to the Father at the Father’s request.
(17)That the Mother will inform the Father as soon as practicable if the child requires urgent medical treatment.
(18)That the Mother authorise the child’s school to provide to the Father the child’s school reports and newsletters at the request of the Father.
(19)That the Father is restrained from the consumption of alcohol or illicit drugs during the time that the child is in his care or for 24 hours prior to the child coming into his care.
(20)Each of the parties are restrained from speaking in a derogatory manner about the other, either to the child or in her presence, or allowing any other person to do so.
NOTATION
F.It is agreed between the parties that it is a condition precedent to the commencement of these Orders that the paternal grandparents provide an executed undertaking to the Federal Magistrates Court, in terms as agreed between the parties, prior to undertaking any supervision in accordance with these Orders.
G.Where practicable the Father’s time with the child shall coincide with the time he spends with his daughter [Z], born [in] 2006.
Orders sought by the Second Applicant Mother (Ms Serle)
1.That the Mother has sole parental responsibility for the child [Z], born [in] 2006.
2.That the child lives with the Mother.
3.That the child spends time with the Father as follows:
a.In fortnight one, for two hours supervised by a professional supervision agency or [M] Child and Family Centre (“[M]”); and
b.In fortnight two, for four hours supervised by the paternal grandparents; or
c.At other times as agreed between the parties.
4.For the purposes of Order 3(a) above:
a. The child will spend time with the Father from 12:00 midday to 2:00pm on the first Saturday of the fortnight;
b. The Father will organise and inform the Mother of the location of the contact within 3 days prior to the proposed contact if the location and supervision is not at [M];
c. The Mother will deliver and pickup the child from the proposed contact location; and
d. The proposed contact location shall be in Canberra
5.For the purposes of Order 3(b) above:
a. The child will spend time with the Father from 12:00 midday to 4:00pm on the first Saturday of the fortnight;
b. The Father will organise and inform the Mother of the location of the contact within 3 days prior to the proposed contact; and
c. Handover of the child will occur at the [B] McDonalds Restaurant unless as otherwise agreed between the parties and the Mother shall deliver and pickup the child at the commencement and conclusion of time spent.
6.Order 3 of these Orders be suspended on Father’s Day and the child spend time with the Father for four hours supervised by a professional supervision agency or the paternal grandparents.
7.That the child be permitted to leave the Commonwealth of Australia notwithstanding that the consent of the child’s Father has not been obtained provided that the Mother has given the Father 21 days notice of her intention to take the child out of the Commonwealth of Australia and provided to the Father a copy of any such itinerary.
8.Notwithstanding the above Orders, the Father is to spend time with the child on her birthday;
a.If the day falls on a week day, for two hours, supervised by a professional supervision agency or the paternal grandparents; or
b.If the day falls on a weekend, for four hours, supervised by a professional supervision agency or the paternal grandparents.
9.That the Father be able to communicate with the child by phone between 6:00pm and 7:00pm twice per week at such times as agreed between the parties, such communication to be initiated by the Father.
10.That the people with whom the child spends time with while with the Father is limited to the child, the child’s siblings, the Father and the supervisor/s and that no third party will participate in the supervised contact without the prior consent of the Mother.
11.The Father is not to have any further contact with the child unless as provided for in these Orders as agreed between the parties.
12.If the Mother is unable to make the child available to spend time with the Father in accordance with these Orders, the Mother will provide to the Father 7 days notice and an opportunity to participate in make up contact with the child.
13.That the Father is to provide 48 hours notice to the Mother of his intention to cancel contact with the child.
14.That the Father is prohibited from taking the child to “[D]’s” and “[K]” whilst the child is in his care.
15.The Father do all things necessary to comply with the following drug testing regime for a period of 36 months:
a.Once every three months from the date of this order the Father is to undergo hair follicle testing and the Father is to provide to the Mother a copy of the test results within 24 hours of the Father receiving the results;
b.The Father is to authorise the drug testing laboratory to provide all such information as is requested by the Mother in relation to the Father’s hair follicle testing and results.
c.The cost of all hair follicle testing to be paid for by the Father;
d.If the Father fails or neglects to undertake a hair follicle test or fails to submit a sample for testing or fails to provide a copy of the test results to the Mother, the test will be taken to be positive for the purposes of these Orders;
16.The Father is to participate in a pattern of drug and alcohol counselling with Directions ACT or similar drug and alcohol counselling provider;
17.For a minimum period of 12 months from the date of these Orders; and
18.The Father shall authorise the provider to provide to the Mother on a monthly basis reports outlining the Father’s participation and abstinence from drugs and alcohol.
19.The Father is to participate in a program of relapse prevention with Directions ACT or similar relapse prevention program provider;
a.For a further period of 24 months from the end of the 12 month period referred to in Order 15(f)(i) above; and
b.The Father shall authorise the provider to provide to the Mother monthly reports outlining the Father’s participation and abstinence from drugs and alcohol.
20.That the Mother will authorise all medical and health professionals to provide details of the child’s treatment to the Father at the Father’s request.
21.That the Mother will inform the Father as soon as practicable if the child requires urgent medical treatment.
22.That the Mother authorise the child’s school to provide to the Father the child’s school reports and newsletters at the request of the Father.
23.That the Father is restrained from the consumption of alcohol or illicit drugs during the time that the child is in his care or for 24 hours prior to the child coming into his care.
24.Each of the parties are restrained from speaking in a derogatory manner about the other, either to the child or in her presence, or allowing any other person to do so.
NOTATION
A.The Father will provide and have properly installed in to any vehicle carrying the child, a child seat and restraint suitable for transporting the child taking in to account her age and weight.
B.It is agreed between the parties that it is a condition precedent to the commencement of these Orders that the paternal grandparents provide an executed undertaking to the Federal Magistrates Court, in terms as agreed between the parties, prior to undertaking any supervision in accordance with these Orders.
C.Where practicable the Father’s time with the child shall coincide with the time he spends with his daughter [Y], born [in] 2001.
Orders sought by the Respondent Father in relation to the First Applicant:
1.That the parents have equal shared parental responsibility for [X], born [in] 1994, and [Y], born [in] 2001.
2.That [X] live with and spend time with each parent in accordance with her wishes.
3.That [Y] live with the Mother.
4.That [Y] shall communicate with and spend time with the Father as agreed between the parties but failing agreement not less than:
a. from Friday after school until 4:00pm Sunday on each alternate weekend;
b. each Wednesday from 3:00pm until 8:00pm;
c. for half of every school holidays, being the first half in even numbered years and the second half in odd numbered years;
d. by telephone at any reasonable time.
5.That notwithstanding anything else in these Orders [Y] will spend:
a. from 12:00 noon Christmas Eve to 10:00am Christmas Day with the Mother;
b. from 10:00am Christmas Day to 12:00 noon Boxing Day with the Father;
c. 3 hours with each parent with whom she is not otherwise living on the relevant parent’s, [X]’s or [Z]’s birthday if the birthday falls on a school day, or from 1:00pm until 6:00pm if the birthday falls on a weekend or a school or public holiday;
d. from 10:00am until 6:00pm with the Father on Father’s Day;
6.from 10:00am until 6:00pm with the Mother on Mother’s Day.
7.That unless otherwise agreed for changeovers that occur in accordance with these Orders the Father shall collect [Y] from the Mother at the Mother’s residence or if [Y] is attending school from school at the commencement of his time and the Mother shall collect [Y] from the Father at the Father’s residence at the conclusion of that time.
8.That without admissions the parties are restrained from the consumption of illicit drugs during the time in which [Y] is in their care or for 24 hours prior to [Y] coming into their care.
9.That without admissions the Father is restrained from consuming alcohol when [Y] is in his care.
Orders sought by the Respondent Father in relation to the Second Applicant:
1.That the parents have equal shared parental responsibility for [Z], born [in] 2006.
2.That [Z] live with the Mother.
3.That [Z] shall communicate with and spend time with the Father as agreed between the parties but failing agreement not less than:
a. from 3:30pm Friday until 4:00pm Sunday on each alternate weekend;
b. each Wednesday from 3:30pm until 8:00pm;
c. for half of every school holidays, being the first half in even numbered years and the second half in odd numbered years;
d. by telephone at any reasonable time.
4.That notwithstanding anything else in these Orders [Z] will spend:
a. from 12:30pm Christmas Eve to 10:00am Christmas Day with the Mother;
b. from 10:30am Christmas Day to 12:00 noon Boxing Day with the Father;
c. 3 hours with each parent with whom she is not otherwise living on the relevant parent’s, [X]’s or [Y]’s birthday if the birthday falls on a school day, or from 1:00pm until 6:00pm if the birthday falls on a weekend or a school or public holiday;
d. from 10:30am until 6:00pm with the Father on Father’s Day;
e. from 10:00am until 6:00pm with the Mother on Mother’s Day.
5.That unless otherwise agreed for changeovers that occur in accordance with these Orders the Father shall collect [Z] from the Mother at the Mother’s residence or if [Z] is attending school from school at the commencement of his time and the Mother shall collect [Z] from the Father at the Father’s residence at the conclusion of that time.
6.That without admissions the parties are restrained from the consumption of illicit drugs during the time in which [Z] is in their care or for 24 hours prior to [Z] coming into their care.
7.That without admissions the Father is restrained from consuming alcohol when [Z] is in his care.
No Minute of Orders Sought was provided by the Independent Children’s Lawyer. However, as indicated earlier, set out next is a chronology prepared by the ICL to assist in understanding the complex of relationships and the sequences in which they, and the children, need to be placed.
Chronology
| Date | Event |
| [date omitted] 1967 | Mr Denny (“Mr Denny”) born |
| [date omitted] 1972 | Ms Denny (“Ms Denny”) born |
| [date omitted] 1973 | Ms Serle (“Ms Serle”) born |
| [date omitted] 1993 | Mr Denny & Ms Denny commence cohabitation |
| [date omitted] 1994 | Mr Denny & Ms Denny marry |
| [date omitted] 1994 | [X] (“[X]”) born |
| 1996 | Mr Denny lodges complaint with AFP and seeks counselling relating to sexual abuse of him when at school between 1980 & 1984 |
| 05/09/1997 | Mr Denny presents to City Police Station following ‘psychotic episode’ |
| 1998 | Mr Denny has psychiatric admission(s), allegedly with suicidal thoughts |
| [date omitted] 2001 | [Y] (“[Y]”) born |
| 04/2002 | Mr Denny has psychiatric admission |
| 01/06/2002 | Mr Denny & Ms Denny separate. [X] & [Y] in primary care of Ms Denny. |
| 07/2002 | Mr Denny has psychiatric admission |
| 10/2003 | Mr Denny & Ms Serle commence cohabitation |
| 08/2004 | Care of [X] & [Y] shared (equal time) between Ms Denny & Mr Denny (Mr Denny living with Ms Serle) |
| [date omitted] 2006 | [Z] (“[Z]”) born |
| 12/2007 | Mr Denny & Ms Serle separate. [Z] in care of Ms Serle. |
| 2008 | [X] & [Y] in Ms Denny’s sole care for 6 months |
| 09/09/2009 – 18/09/2009 | [Z] admitted to The [C] Hospital and diagnosed with cardiomyopathy |
| 18/09/2009 – 24/09/2009 | [Z] transferred and admitted to [S] Hospital |
| 09/12/2008 | [Z] has outpatient’s attendance at [S] Hospital |
| 30/01/2009 – 13/02/2009 | [Z] admitted to The [C] Hospital |
| 13/02/2009 – 20/02/2009 | [Z] transferred and admitted to [S] Hospital |
| Early 2009 | [Z] finds [X]’s Ritolin medication unsecured. |
| 10/03/2009 | [Z] has outpatient’s attendance at [S] Hospital |
| 09/06/2009 | [Z] has outpatient’s attendance at [S] Hospital |
| 08/2009 | [X] lives with Mr Denny for about 10 days |
| 22/09/2009 | [Z] has outpatient’s attendance at [S] Hospital |
| 15/12/2009 | [Z] has outpatient’s attendance at [S] Hospital |
| 19/12/2009 – 30/12/2009 | [Z] admitted to The [C] Hospital |
| 30/12/2009 – 26/01/2010 | [Z] transferred and admitted to [S] Hospital |
| Early 2010 – Late 2010 | [Y] & [X] live with Mr Denny week about (Paras.13 & 14 Mr Denny’s first affidavit) |
| 09/03/2010 | [Z] has outpatient’s attendance at [S] Hospital |
| 18/05/2010 | [Z] has outpatient’s attendance at [S] Hospital |
| 05/07/2010 | Mr Denny attends on Dr K regarding depression |
| 08/07/2010 | Mr Denny attends on psychologist Mr C |
| 24/08/2010 | [Z] has outpatient’s attendance at [S] Hospital |
| 09/2010 | Ms Serle gives up full time work to care for [Z] |
| 09/2010 | [Y] to coast with Mr Denny |
| 10/2010 | [Y] to [omitted] with Mr Denny for Ms Denny’s brother’s 50th birthday |
| 10/2010 | [Z] commences swimming lessons |
| 05/12/2010 – 08/12/2010 | Ms Serle & Mr Denny attend appointment for [Z] with Dr W (Melb) [Z] admitted to [hospital omitted] (Melb) 5 to 8 December |
| 01/2011 | [X] moves to live with Mr Denny (Para 24 – Ms Denny’s first affidavit) |
| 01/2011 | Mr Denny ceases work as [omitted] |
| 03/2011 | [Z] hospitalised in Canberra |
| 15/03/2011 | Ms Serle & Mr Denny attend appointment for [Z] with Dr W (Melb) |
| 01/04/2011 | Mr Denny removes [Y] from school without Ms Denny’s knowledge |
| 05/04/2011 | Urinalysis by Mr Denny – positive for cannaboids |
| 08/04/2011 | Ms Denny files Initiating Application |
| 15/04/2011 | [Z] has outpatient’s attendance at [S] Hospital |
| 19/04/2011 | Urinalysis by Mr Denny – positive for codeine |
| 03/05/2011 | Urinalysis by Mr Denny – negative for all substances |
| 13/05/2011 | Ms Serle files Initiating Application |
| 20/05/2011 | Orders for unspecified supervised time between Mr Denny & [Y] |
| 25/05/2011 | Urinalysis by Mr Denny – negative for all substances |
| 26/06/2011 | Private investigator makes observations of Mr Denny |
| 07/2011 | Mr Denny participates in “Dry July” |
| 20/07/2011 | Orders for supervised time between Mr Denny & [Z] each Wednesday between 5pm & 8pm |
| 31/07/20011 - 15/08/2011 | Ms Denny and [Y] in Fiji on holiday |
| 02/08/2011 | [Z] has outpatient’s attendance at [S] Hospital |
| 03/08/2011 | Urinalysis by Mr Denny – negative for all substances |
| 08/08/2011 | Report of Ms D regarding [Y] & [X] |
| 08/2011 | [X] resumes living at Ms Denny’s home (while Ms Denny in Fiji) |
| 21/08/2011 | Mr Denny charged with drink driving offence & Possession of cannabis. Mr Denny loses employment as driver following charges. |
| 30/08/2011 | Orders for supervised time between Mr Denny & [Y] each Wednesday between 5pm & 8pm |
| 30/08/2011 | Order for ICL appointment for [Y] |
| 21/09/2011 | Family Consultant Memo of Ms M regarding [Z] |
| 17/11/2011 | Order for ICL appointment for [Z] & for [X] |
| 01/11/2011 | [Z] has outpatient’s attendance at [S] Hospital |
| 08/12/2011 | Report of Ms D regarding [Z] |
| 19/12/2011 | Mr Denny pleads guilty to PCA reading 0.213. Fined, 200 hours community service, 3 year driver licence suspension |
| 25/12/2011 | Ms Serle supervises time between Mr Denny & [Y] & [Z]. Mr Denny’s parents & [X] also present |
| 01/2012 | Mr Denny commences work as a dogman |
| 31/01/2012 | [Z] has outpatient’s attendance at [S] Hospital |
Evidence of Witnesses
Mrs Denny
It is fair to say at the outset that I found Mrs Denny to be an impressive witness. She was firm, without being belligerent, in her evidence, as well as being direct without being curt or brusque. And contrary to any view of Mr Denny, who once regarded both his former partners as “friends” but does not do so now, nor did I detect any malice on
Mrs Denny’s part.[17] I took her interest to be directed to what is in [Y]’s best interests, which included [Y] having a relationship with her Father. The only and consistent caveat from Mrs Denny, as with Ms Serle, was that Mr Denny refrain from drugs and alcohol, and in turn, be more reliable in his attention to his relationship with his daughters. Indeed, Mr Denny, quite fairly, confirmed that Mrs Denny had supported him over the years of their relationship throughout his various encounters with drug and alcohol programs, institutions and the like.[18]
[17][18] See T (22nd February 2012) p.19.
The relevant parts of Mrs Denny’s brief evidence may be noted as follows.[19]
[19] Unless otherwise required, Mrs Denny’s evidence can be found at T (20th February 2012) beginning at p.32. What follows should be taken to be from this transcript reference date and the pages following.
While Mrs Denny acknowledged that the Father has, at times, advised her that he is not in a position to spend time with [Y] because he is intoxicated, she has concerns – in my view, legitimately so – about the reliability of Mr Denny always to so acknowledge his lack of capacity to spend time with, and certainly to care properly for [Y]. Mrs Denny gave examples of occasions when friends of Mr Denny brought the children home ([X] and [Y]) because Mr Denny was drunk and or wished to remain at the pub.
Mrs Denny explained another occasion, in 2008, when Mr Denny went on a ‘3 day bender’ on cocaine and alcohol. And she referred to a ‘2 week bender’ in January 2010, as well as to what she regarded as increased levels of Mr Denny’s “instability.” She also confirmed that the then supervisor for [Y] and Mr Denny had commented on Mr Denny’s unreliability to attend supervised sessions with his daughter.
Mrs Denny confirmed that there had been no relevant communication with Mr Denny for the past 14 months. She also said, as did Ms Serle, that she had concerns about Mr Denny’s parents as supervisors because (a) they did not live locally, (b) they did not have regular contact with [Y] (or [Z]), and (c) there were concerns that they did not appreciate their son’s history of drug and alcohol use and that they would protect him should they learn of his continued use of them.[20]
[20]
Ms Serle
Ms Serle was a more diffident witness, compared to both Mrs Denny and Mr Denny. That said, I took her to be truthful, and like Mr Denny, genuinely concerned about the welfare of their very seriously ill young daughter, [Z].[21]
[21] The evidence of Ms Serle is at T (21st February 2012) pp.99-144. The summary provided here should be taken to be from this section of the transcript unless otherwise indicated. Again, for contextual and other reasons, I note that Mr Denny and Ms Serle commenced their co-habitation in 2003, and separated in 2007. [Z] was born in 2006.
Ms Serle gave evidence of various occasions when she found, or became directly aware of, Mr Denny being asleep out the back of the pub. The implication invariably was that his sleep was alcohol induced or related. This occurred, she said, including on occasions when he was supposed to be taking [Z] to swimming lessons.
Ms Serle confirmed and acknowledged, and on more than one occasion, that [Z] loves her Father.[22] But her concern is in relation to Mr Denny’s reliability to attend and spend time with [Z], as well as his consumption of drugs and alcohol.
[22] See T (21st February 2012) at pp.135, 137 & 144.
One particular occasion recounted by Ms Serle was when [Z] was in hospital. Mr Denny spent overnight with his daughter in hospital (as did Ms Serle) but he brought with him a six-pack of beer.
Ms Serle confirmed that she knows of occasions when Mr Denny has consumed beer and drugs while the children ([Y] and [Z]) were asleep at his house (she was also in attendance but not all the time).
In response to questions about whether she wants Mr Denny to spend time with [Z], Ms Serle said that she wanted him to do so, but, for example, although he could do so such as at [Z]’s swimming lessons held every week, he had not attended since September 2011.
Ms Serle said that she would be content for an order for supervised time between Mr Denny and [Z] (and drug and alcohol testing) for a period of 12 months so that she could be satisfied that he was addressing his drug and alcohol issues.
Other Witnesses
On behalf of the Applicant Mothers, three other witnesses were called: Mrs I, Mrs P, and a private investigator (Mr B), whose reports were tendered and became exhibit C 1-2.
The thrust and purpose of the evidence of all three witnesses was to confirm Mr Denny’s drinking and drug use and or habits in relation to such things, either generally and or in relation to particular events.
For my part, and with no disrespect to any of them, their evidence added little to the overall evidence, for the reasons already given, but most notably because of Mr Denny’s admissions, together with police records and toxicology reports. That said, I had the strong view that their evidence (particularly that of Mrs I and Mrs P) was an accurate portrayal of an event (or events), such as Mrs I’s account of a 50th birthday party at [omitted] in September 2010 where Mr Denny was heavily intoxicated and fell over (Mr Denny said that he was an ‘excitable dancer’)[23], and where he dropped a bag of marijuana into the swimming pool.[24]
[23] See T (22nd February 2012) p.57. In the same place, Mr Denny did not deny that he was intoxicated.
[24] In fact, Mr Denny confirmed that he was in the pool when the bag of marijuana fell out of his pocket. See T (22nd February 2012) p.67. He confirmed that over the three day period of the ‘[omitted] party’ he was consuming beer and marijuana. See T (22nd February 2012) p.56.
For the reasons given, I need not traverse the evidence of these witnesses further.
Mr Denny
At the outset, I confirm that Mr Denny surprised me somewhat as a witness. Given his troubled life – his own abuse suffered many years ago and his dogged pursuit of his abusers, his acknowledged very significant drug and alcohol use, his mental health issues in the past, and not a few other things besides – he presented and engaged both very willingly and, for the most part, I took it to be quite candidly. It was also put to him quite bluntly at times that it was something of a wonder how he has managed to survive his own life thus far. That said, I also took quite some parts of his evidence to exhibit a certain cavalier approach to responsibilities that warrant a more mature outlook and attention.
I take it to be the fact that there is no dispute that Mr Denny has a good and close relationship with his daughters (including the older [X]). I also take it to be the fact that [Y] and [Z] wish to spend time with their Father, as he does with them. The dilemma is, and this was acknowledged at times by Mr Denny, that with unfortunate regularity his own actions have heavily undermined his attempts to spend time with his children. I note the following as briefly as possible from
Mr Denny’s evidence. It is divided between matters that should, in my view, properly be viewed essentially as “historical”, and then ‘specific events’ – with special focus on an incident in August 2011 when
Mr Denny was charged and convicted for driving under the influence. To put it bluntly, as I tried to do on more than one occasion during the trial, this “DUI” was something of a ‘game-breaker’ for me – as I explain shortly.
One other matter should be observed here. Mr Denny regularly sought to distinguish between, on the one hand, issues that he perceived related to any possible risk to the children while in his care (such as his drug and alcohol use), and those matters that related to his life-style. In his view, his life-style choices (which included the use of drugs and alcohol, and regular attendance at the pub) were able to be, and for the most part were (he claimed), capable of being quarantined so that they had no impact when it was his time to spend with the children. Further, he maintained that there had never been an incident or occasion, when the children had been in his care, when they were at any risk.
However, as was observed during the trial, parenting involves not only formal, physical care, but also an educative/role model dimension.[25] Thus, from my perspective, the distinction between or quarantining of Mr Denny’s general life-style, on the one hand, and on the other, his care of, and parenting responsibilities towards, his children, is rather artificial if not arbitrary and somewhat illusory. In one’s mind, such distinctions may be possible. However, the every-day, real world of caring for children, in my view, does not admit of such fine or artificial distinctions. The life-style and example of a parent is an integral part of parenthood.[26]
[25] See for example the discussion at T (21st February 2012) pp.186-187.
[26] For a brief discussion with Mr Denny about responsibility for one’s actions, see T (14th June 2012) p.35.
Indeed, in response to questions from the Bench, Mr Denny accepted that parents have a role and responsibility in the education of their children, and agreed that consumption of alcohol and drugs was not a lifestyle that should be promoted to children.[27]
[27] See T (22nd February 2012) p.9.
Like-wise, Mr Denny said that he distinguished between the use of drugs and alcohol as self-medication, and the use of the same substances by way of reaction to a particular stress, such as his anxiety over [Z]’s health.[28]
[28] See T (22nd February 2012) pp.6-8. The stress of the current court proceedings was also acknowledged.
Respectfully, while I understand the distinction made by Mr Denny, I do not accept it. In both cases, Mr Denny has chosen to engage in conduct that impairs his health and similarly impairs his judgment. For reasons given later, his conduct has also put the lives of others at very significant risk. His conduct has, at times, resulted in him being unavailable for his children.[29] Ultimately, it is his choice whether to drink alcohol to excess, and similarly, it is his choice whether to take drugs – whether it is marijuana, cocaine, amphetamines or any other kind of drug (Mr Denny confirmed that he had taken all of these drugs at some stage).
[29] See, for example, the discussion at T (15th June 2012) pp.111-112, 139, 142 & 144. In this regard, see the print-out of text messages between Ms Serle and Mr Denny, which became Exhibit I. The last transcript reference is important in that Mr Denny candidly agreed with the ICL that, at least since May 2011, there have been “some significant occasions when [he] has done other than [his] best” in failing to attend appointments with or for his children, notably [Z].
Respectfully, the distinction Mr Denny sought to make is a form of self-justification. However, properly examined, it fails any proper scrutiny. An example from criminal law and history may assist the analysis.
The legendary hero, Robin Hood, was feted for robbing from the rich and giving to the poor. However, on closer examination, Robin’s actions were criminal, notwithstanding that his motivational impulse was laudatory. Thus, Robin’s motive was to remedy injustice; his intention however was to steal and to rob.[30] Thus so here in the present case:
Mr Denny’s motive or goal was [and perhaps still is] to relieve himself of anxiety and or any number of understandable difficulties and stresses he faced at any particular time; however, his intention was to drink to excess and or to take drugs. His motive or goal is understandable; his actions are not justifiable. And, his actions have consequences – for himself and for others.
[30] I cannot claim any originality for this analogy. It was first outlined by Lord Goff in his illuminating article, “The Mental Element in the Crime of Murder,” (1988) 104 Law Quarterly Review 30.
The following is a summary of Mr Denny’s evidence in relation to matters that might more correctly be considered to be historical (but still relevant) – as opposed to a particular incident that is examined in detail later. Thus:
a.Mr Denny agreed with Mrs Denny’s evidence that, during their relationship, he would spend approximately $300 per week (and sometimes more) on alcohol.[31]
[31] See T (22nd February 2012) p. 17. Unless otherwise required, all transcript references in this part of these reasons should be taken to be from this date.
b.From somewhat early in the relationship with Mrs Denny (from approximately 1996), Mr Denny was abusing drugs and alcohol. The drugs included amphetamines, marijuana and cocaine.[32] More recently, his drug use was confined essentially to marijuana, although in a toxicology report, dated 28th February 2012 (exhibits H and L), traces of cannabinoids and methylamphetamine were found.[33]
c.Mr Denny confirmed that, in 2002, he was suicidal, and that he was admitted to a mental health facility.[34]
d.Mr Denny accepted that his means of coping with issues in his life (predominantly but not exclusively, those arising out of his own abuse history), in 2002, was through binge drinking and the use of cannabis.[35]
e.Mr Denny confirmed that, since 2002 until at least mid-January 2011 (and subject to an incident in August 2011, discussed below) he has continued to binge drink.[36] He also confirmed that alcohol and drug use had become a life-style choice for him.[37]
f.Provided that the instigator(s) of any alcohol tests were not either of the Mothers, Mr Denny would accept the need for a regime of alcohol testing prior to him spending any time with the children.[38]
g.At various times, Mr Denny has sought assistance from psychiatrists and psychologists.[39]
h.Mr Denny said that he could stop using drugs at any time, but also conceded that he could not guarantee that he would not abuse alcohol at some time in the future.[40] Further, Mr Denny confirmed that, at least as recently as February 2012, he continued to use cannabis socially.[41]
i.Mr Denny confirmed that his memory was impaired by alcohol use, but not by his use of drugs.[42]
j.The principal stressors in Mr Denny’s life, which in the past have led to or caused him to resort to the use of drugs and alcohol are, according to his evidence: (a) his concern for his daughter, [Z], and the contest (as he sees it) with her Mother regarding parental responsibility and whether she has a heart transplant (and other possible transplants, such as for her lungs); and (b) his work, particularly in the ‘[omitted] industry’.[43]
k.Mr Denny and Mrs Denny diametrically disagree over issues concerning [Y]’s school (Mrs Denny wants and has continued to send [Y] to a Christian school, while Mr Denny is strongly opposed to religious schools – for understandable historical and other reasons).[44]
[32] See T 19 & 21.
[33] I need not traverse, other than to note here, that in an application for a [omitted] licence, dated 28th March 2011 (exhibit G), Mr Denny answered the question (Q.6) about whether he used any illicit drugs in the negative. See T (14th June 2012) pp.16 ff.
[34] See T 20. ACT Mental Health was also called to assist Mr Denny in July 2010: T 41-48.
[35][36] See T 23.
[37] See T 40; T (14th June 2012) pp.20, 21, & 26.
[38] See T 25.
[39] See T 27-30.
[40] See T 31.
[41] See T (14th June 2012) p.94 and T (15th June 2012) pp.120 & 121.
[42] See T (21st February 20120) p.179.
[43] See T (22nd February 2012) p.34. See also the later discussion at T (14th June 2012) pp.49-50, where Mr Denny confirmed that he was effectively compelled to return to work in [omitted] notwithstanding that he agreed that such work ‘forced’ him to take drugs and alcohol to cope with it.
[44] See T (15th June 2012) pp.122-123.
The DUI Incident: August 2011
I have previously indicated that, in my view, the circumstances and result of Mr Denny driving while intoxicated in August 2011 was a signal event. In my view, it is pivotal to the orders to be made that are in the best interests of the children.[45] The relevant elements of the incident are as follows.
[45] The detail of the DUI incident was considered on many occasions in the course of the trial. The main consideration of the event is at the following places: T (21st February 2012) p.182 ff; T (22nd February 2012) p.13 ff; and T (14th June 2012) pp.31 ff & 89 ff. See also exhibit J, being the [omitted] Local Court file, which includes a statement of facts in relation to the charges faced by Mr Denny regarding this incident, and his subsequent appeal, but which was ultimately withdrawn.
On Friday morning, 19th August 2011, Mr Denny started drinking at his local pub. He drank, on and off, throughout the day. He confirmed in cross-examination that he consumed some 19 schooners of full strength beer. He returned to the pub the following morning and continued to drink. By approximately midday he had consumed a further four (4) schooners. He confirmed that he did not have breakfast on this Saturday morning.
Mr Denny then proceeded to get into his car, knowing that he was intoxicated, with the aim of driving down to the south coast to [O], a drive of perhaps 3 hours or thereabouts. Apart from a number of quite narrow stretches of road, the drive he embarked upon is well-known to ACT and south coast residents to involve negotiating the steep and hazardous [omitted].
Mr Denny took with him in the car a six pack of beer. He drank a bottle or two of this pack. He also took with him a quantity of marijuana. He was, he says, at the time, unaware that he had the drugs. Mr Denny was apprehended by police near [O] because he was swerving all over the road. Mr Denny was tested and proved an alcohol reading of .0213. He was charged and convicted, and disqualified from driving for three years.
I need only state the obvious, namely that it must border on the miraculous that neither Mr Denny nor anyone else was not killed or seriously injured on account of his astonishingly foolhardy and perilous drive from Canberra to [O] in August 2011.
Although the reckless nature of this DUI incident need hardly be explained or otherwise highlighted, nonetheless I note the following.
First, while I understand Mr Denny’s explanation for his actions (e.g., a certain if not significant level of grief about [Z]’s poor health and prognosis)[46], it cannot, in my view, justify or otherwise ameliorate actions that put his life and the lives of others in such immediate, obvious and grave danger.
[46] What was particularly curious about Mr Denny’s concern regarding [Z]’s health was that only on 2nd August 2011, he and Ms Serle had seen her paediatrician, Dr J, at [omitted] Children’s Hospital in Sydney, who had given [Z] a much more positive diagnosis and prognosis, even to reducing her medical check-ups from three to six months. See T (22nd February 2012) pp.36-40.
Secondly, his conduct on this occasion calls into serious question his capacity to deal with stress in his life on other occasions, specifically in relation to his children. Therefore, the level of confidence the Court can properly have (and would wish to have) in his capacity properly to care for them has been seriously compromised. His judgment on this occasion in every respect was astonishingly flawed. He has been the author of his own downfall in this regard. No less tragically is the fact that, to a degree, Mr Denny recognises – now – that his actions have potential consequences for his children and his relationship with them. And all this in circumstances where it is acknowledged that he has a good and close relationship with his children.
Essentially, unless and until he can satisfy the Court that he poses no risk to his children (not to mention to himself and to others), his time with them must be supervised; he must also undergo regular drug and alcohol testing. In my view, in the light of his history of drug and alcohol use, and with proper regard for the events of the DUI in August 2011, the Court would be utterly derelict in its duty to protect the children, and to make orders that are in their best interests, if these two measures were not put in place. The main difficulty relates to logistics, such as the duration of the supervision – on which more below.
Evidence of Paternal Grandparents
For my part, the primary issues of concern in relation to the evidence of the paternal Grandparents may be summarised as follows.
Most significantly, the Grandparents either have no appreciation that their son has had, and to some degree, still has, significant issues in relation to use of drugs and alcohol. Thus, Mrs Denny senior denied that her son has got a problem with alcohol, or that he has ever had a problem with use of cannabis, or the use of amphetamines. She said that they simply tried to talk about “nice things when we’re together.”[47]
[47] See T (15th June 2012) pp.160-162.
Mr Denny senior said that they (he and his Wife) had been “pretty much assured that [their son] was off the marijuana.”[48]
[48] See T (15th June 2012) p.170.
A second area of concern (I do not mention it as a criticism) is the simple fact that they do not live in the ACT. They live on the south coast, and seem to travel by caravan to various parts of the country.
Notwithstanding these concerns, I took the Grandparents to be genuine in their preparedness to assist and to facilitate, in any reasonable way, the time that Mr Denny spends with his daughters.
For completeness, I note that Mr Denny’s brother ([name omitted]) was offered as a supervisor also. Unfortunately, despite numerous attempts to take some evidence from him by telephone, contact with him proved to be impossible. This was unfortunate, and a yet further imposition (albeit a small one) on the disproportionately large amount of resources was expended on these proceedings.
Evidence of the Family Consultant
The Family Consultant, Ms D, prepared two reports for these proceedings. They are dated 11th August and 8th December 2011. They became exhibits B1 and B2 respectively.
In both of her reports, Ms D noted that Mr Denny acknowledged his indulgence in drugs and alcohol when stressed. Notably, Ms D observed (Report of 8th December, para.32): “[Mr Denny] appeared to have great faith in his handling of the situation [regarding his use of alcohol], and seemed unable to comprehend the Mother’s anxiety [i.e. Ms Serle] over the possible dangers for [Z] if he was on substances and not coping, and her ongoing health problems if no action is taken.”
Then at para.35 of the same report, Ms D observed (in my view, presciently so): “The dilemma for Mr Denny is his love and concern for [Z], coupled with his own ill health, which is an ongoing challenge, precluding him being able to be involved constantly in her care at times when she is most needy, if he is also needy.” Respectfully, I agree.
In her reports, Ms D recommended, among other things, that Mr Denny undertake a stress management course, desist from going to the pub on the days he [was then] due to see the children, and undertake drug and alcohol testing for the protection of the children and for his own protection.
I need only note the following from Ms D’s cross-examination.[49]
[49] The oral evidence of the family consultant is located at T (14th June 2012) beginning at p.54.
Ms D confirmed that [Y] is very fond of her Father and somewhat protective of him.
The Family Consultant also noted that, in her view, Mr Denny was not prepared to change his habits, such as going to the pub, for the sake of his children.
When the parties saw Ms D for the purposes of preparing the December report, Mr Denny did not mention anything about the DUI incident in August 2011.
Ms D confirmed that, if the Court found, among other things, that
Mr Denny did not have sufficient insight in relation to the extent and impact of his drug and alcohol use, then in addition to recommending supervision for his time with [Z], she would similarly recommend supervision for his time with [Y]. She said such would be for his own protection as well as for that of the children.
She agreed that an order to the effect that Mr Denny not take the children to any place where alcohol was served would be appropriate in the circumstances.
Ms D also confirmed that, with such a sick young child as [Z], and given that Ms Serle has been and remains her primary carer, it would make sense that she have sole parental responsibility.
Finally, in an interesting comment, Ms D observed that in the course of her discussion with the parties, and with Mr Denny in particular, she had the strong impression that there was a level of competition in his approach, such that he was determined to win out, so to speak, over ‘the Mothers.’ She even said that this assessment left her concerned about the Father’s ultimate motives.
Ms D agreed that protective orders, for the children and for Mr Denny, were appropriate.
Submissions
Doubtless because of the way the proceedings were conducted, the submissions from the parties and from the ICL, to a very significant degree, (a) focussed on the factual matrix of each of the matters, and (b) made little, or little more than passing, reference to the legislative pathway.
Accordingly, before returning to that mine-scattered pathway, let me attempt to summarise the submissions.
In the Mothers’ 20 page (although actually unpaginated) submissions, much of the focus and exhaustive detail is on the multiple, historical failures or faults of the Father, whether in relation to his drug and alcohol consumption (past and present), his failure to attend upon the children, his times of attention to his mental health issues, his unstable living situation, and his general failure to attend to his responsibilities as a parent. Counsel submitted (at para.31) that, in relation to the latter,
Mr Denny’s “engagement with the children has been erratic, unreliable and unpredictable.” Extensive references are given to support that contention, including multiple occasions in 2011 and 2012, and even between the two sections of the trial.
In short, the Mothers submit that (a) Mr Denny is consistently unavailable physically and emotionally to/for the children, and (b) he has had ample opportunity to demonstrate that he has the capacity and willingness to parent the children but that he has failed to commit to this task over time. It was further submitted that he has exhibited an extremely poor attitude to the responsibilities of parenthood.
On behalf of the Father, the submissions read, in my respectful view, as something of an extended plea in mitigation more commonly encountered in criminal proceedings where a plea of guilty has been entered. Thus so here: the ‘plea’ on behalf of Mr Denny is twofold. First, that the orders sought by the Mothers exhibit an intent on their part to deprive Mr Denny of a meaningful relationship with his daughters. Secondly, in any event, the effect of the orders sought will be to deprive him of such a relationship with his daughters.
While the submissions acknowledge that “serious repair work” is needed – it is not immediately clear whether this is a reference to the Father’s relationship with the children or to his ruptured relationship with each of the Mothers (or both) – the basis sub-text of the submissions I take to be that (a) the Court can and should trust Mr Denny to advise the Mothers if, at any stage, he is not able to spend time with the children, and (b) the effect of the Mothers orders sought will be to deprive the Father and the children of their current, meaningful relationship.
For my part, the basic flaws in the Father’s submissions are that while he acknowledged at times during the trial his failures and that his actions have consequences, unfortunately, I often considered that his focus was unduly on himself rather than on the children. There was almost an under-current of self-indulgence, some element of self-flagellation for the many things he has encountered in his life, and to some degree a not insignificant failure to take responsibility for his actions and life choices. All of this was all the more tragic because I took Mr Denny to be a man of some significant abilities and capacity. However, more often than not he has chosen a path of debauchery and dissipation rather than regularly seek professional assistance, and take a more resolute and responsible approach to his children, and to his life more generally.
I note the following from the ICL’s submissions. It is as well to set out in full certain sections of them. Thus:
[10] In view of the multiple serious issues relating to the respondent, the applicants exhibit a very cautious approach to the Orders they seek. The Orders sought appear to be intended to meet the concerns that have been expressed and explored through the proceedings.
[11] The evidence is of a history of the applicants facilitating the children spending time with the respondent. The evidence is also of the respondent failing to take opportunities to spend time with the children and failing to address, and in a number of regards failing to acknowledge the need to address, the conduct that places the children at risk in his care, for example in respect of his alcohol consumption, and matters that reflect poorly on the respondent, for example his failure to secure suitable accommodation and his failure to provide adequate financial support for the children.
[12] The ICL submits that the fairer understanding of the applicants’ submissions is that the relationship between the children and the respondent must of necessity occur within constraints because of the concerns regarding the respondent. The evidence does not suggest that there is history of the applicants preventing the children from having a relationship with the respondent.
[13] The ICL has on at least 2 occasions during the hearing given an indication of his views as to the appropriate outcome for these children. The submissions of the applicants make reference to the expression of views by the ICL. Those submissions do not misrepresent the views expressed by the ICL. The ICL adopts and comments on the following portions of the applicants’ submissions:
Paragraph 3: The ICL supports each of the applicants having sole parental responsibility for their respective child.
Paragraph 3: The qualifications relating to providing information regarding health and schooling are appropriate. If significant medical decisions need to be made in respect of [Z], the first applicant should be the decision maker in the first instance. The respondent will have the opportunity to seek an Order from the Court regarding any major decision regarding [Z]’s treatment should he oppose a decision made by the first applicant.
Paragraph 3: The ICL has formed the view that the respondent is unable to place his children’s needs above his own needs. The ICL goes further and says that there is little and probably nothing in the evidence the Court has received to suggest that this is likely to change in the future.
Paragraph 5: The ICL supports fortnightly time between the children and the respondent, supervised alternatively by an agency and by a suitable person.
Paragraph 5: Ongoing alcohol and drug monitoring and/or testing of the respondent is necessary. The ICL is of the view that if there is no apparent change in the respondent’s use of alcohol and drugs over an 18 month period, then there is no point to continuing testing and any possibility of liberalising the conditions for supervision could not thereafter be contemplated until the respondent is able to demonstrate that there have been significant changes in his drug and alcohol use in particular.
Paragraph 12: The parental relationship is such that it is not in [Y]’s best interests for the respondent to have parental responsibility for [Y]. The second applicant is, always has been and will continue to be [Y]’s primary carer. The respondent’s conduct over many years precludes him from being considered to be suitable to exercise parental responsibility.
In relation to the paternal Grandparents being supervisors, the ICL submitted:
[14] … The paternal grandparents were giving evidence in support of their son. Witnesses in that situation can be understandably reluctant to damage their son’s case by being too forthright about his problems. There is nothing to suggest that the grandparents would not be diligent and capable supervisors.
[15] The applicants have provided undertakings that they would require the grandparents to sign if the Court permits the grandparents to be supervisors. The undertakings would appear to address any issues of concern. The undertakings would be improved by inclusion of the detail of “prohibited third parties” and what is a “prohibited location” in undertakings 5d and 5e. That detail appears at orders 10 and 14 as sought by the Mothers.
[16] The ICL is of the view that the paternal grandparents are suitable supervisors and that a requirement that the paternal grandparents give appropriate undertakings will serve as a further layer of protection of the children and should also give reassurance to the Mothers.
In relation to the regime of drug testing, the ICL submitted, that:
[17] In relation to the drug testing regime set out at order 15 of the orders sought by the Mothers, see paragraph 13.5 above in respect of the time frame. In respect of hair follicle testing, the ICL is concerned that the cost is prohibitive and that the respondent is unlikely to be able to afford the testing that is proposed. It appears likely that the respondent would fail to comply with the hair follicle testing regime the applicants propose due to the cost involved. The Court should not make an order that is likely to be impractical and in respect of which non-compliance would be likely to create further dispute between the parties.
[18] The drug testing regime has no inbuilt penalties or stated consequences for positive drug test results. The ICL understands that consequences are to delay the time when the respondent may be able to succeed in an application for the orders to be varied to provide for unsupervised time or increased or extended time. If that is the case, then 3 monthly hair follicle testing for 36 months is unnecessarily onerous. Likewise the provision of monthly reports as envisaged by orders 15e ii and 15f ii sought by the Mothers is unnecessarily onerous.
[19] The respondent’s alcohol problems and his drug usage are such that the Court could not be confident that any Orders will significantly change the respondent’s use of alcohol and drugs. The respondent needs to want to change and his evidence indicates he sees no need to change. The purpose of drug testing will therefore be more in the nature of obtaining information to monitor the respondent over the long term. The regime should not become a de facto evidence gathering process in respect of any future Application.
Some ongoing monitoring is necessary, but the onerous regime proposed in order 15 goes beyond what is necessary to protect the children. The Court should not become in effect the respondent’s social worker.
The experienced ICL observed that “The respondent is in his current predicament due to his alcohol and drug use. The Court can provide for the children’s relationship to continue with the respondent within boundaries that include long term supervision. Primarily the onus rests on the respondent to address his alcohol and drug problems. If he can do so then the conditions imposed on his time with the children can be relaxed.” Respectfully, I agree.
Finally, the ICL submits that an order for sole parental responsibility in favour of each of the Mothers is supported by the evidence and should be made. Likewise, the ICL supports orders that the Father’s time with the children should be supervised.
Subject to what is said later in these reasons after consideration of the legislative pathway, I essentially agree with the ICL’s submissions.
Consideration & Conclusion – via the Legislative Pathway
A convenient overview of the legislative parameters and considerations under Part VII of the Act to which the Court must have regard is provided by Brown J in Mazorski v Albright. I set out below [3] – [6] from her Honour’s judgment and respectfully adopt it for its succinct outline of relevant sections (and principles) of Part VII of the Act:[50]
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
[50] (2008) 37 Fam LR 518. Her Honour’s remarks, in relation to the “twin pillars” and in relation to “meaningful relationship”, have been consistently cited with approval by the Full Court, for example in Moose & Moose (2008) FLC ¶93-375; McCall v Clark (2009) 41 Fam LR 483; Sigley v Evor (2011) 44 Fam LR 439; Shaeffer v Jacobs (2011) FLC ¶93-468; & Maluka v Maluka (2011) 45 Fam LR 129.
Her Honour also made important observations about “meaningful” as that term is used in Part VII of the Act in the context of what is comprehended by a “meaningful relationship.” At [20] - [26], her Honour outlined a range of relevant considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[51]
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[51] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and even more recently by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335], similarly endorsed Brown J’s remarks.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
First, in relation to parental responsibility, the presumption that is set out in s.61DA of the Act is rebutted for three reasons: (a) Mr Denny’s irresponsible use of drugs and alcohol, which put into serious question his capacity to make sensible judgments; (b) the undisputed fractured relationship between the Father and the children’s Mothers; and (c) the fact that the Mother’s have been and remain the children’s primary carers. They need to be able to make decisions that are in the best interests of the children without being fettered by the mistrust, general difficulty, and the significant question marks over Mr Denny’s reliability. In such circumstances, while-ever Mr Denny’s time with the children, pursuant to these orders, remains supervised and he is subject to drug and alcohol testing, each of the Mothers will have sole responsibility for their respective children.
However, this is not the end of the story. If Mr Denny has satisfactorily negotiated the supervision and drug and alcohol testing regime now put in place for the next two years, there will be a self-executing order that joint parental responsibility shall thereafter apply – with one exception, and one qualification.
The exception relates to [Z]. If the self-executing order comes into effect after two years and an order for equal shared parental responsibility thereafter applies, in the event that there is a dispute between the parents in relation to any medical treatment, Ms Serle’s decision is to prevail.
The qualification is this: if at any time there is a positive drug or alcohol reading against Mr Denny, and equally, absent proper emergency (which does not include a bout of intoxication), if he fails to attend upon the children without adequate notice and excuse for three consecutive occasions, the two year time period for the equal shared parental responsibility order shall start anew.
The object of these orders in relation to parental responsibility (and the other orders as well) is (a) to acknowledge that the children have a good relationship with their Father, but also (b) to highlight that the ball of responsibility for that relationship rests squarely in Mr Denny’s court. If he wants ‘to play ball’ (so to speak), it is a matter for him. If he does not do so, it too is a consequence of his own making. I strongly suggest that he needs to ask himself the following questions: ‘is the relationship with each of my young daughters worth the modest sacrifices now imposed by the Court for two years, or will I continue to put my own interests (alcohol, drugs, living situation, etc) before their interests?’
The order for sole parental responsibility obviates the need to consider s.65DAA.
In terms of the legislative pathway proper, summarily I note the following.
Concerning s.60CC(3)(a) and (b), there is no dispute that the children have a good relationship with their Father (while being primarily cared for by their respective Mothers). In my view, the orders proposed will facilitate that relationship, admittedly not as easily as the Father would like, but the Court has a significant protective responsibility towards the children. Such a responsibility must take precedence over any wishes or concerns of the Father.
In relation to s.60CC(3)(c) and (i), the evidence confirms that the relationship between the parents is taut and very difficult. Communication is problematic. I do not accept the Father’s view that the Mothers are intent on depriving him, and the children, of a meaningful relationship. To the degree that their concern for the children, and their mistrust of Mr Denny, are motivating factors, to a relevant degree I accept those concerns and mistrust as being reasonably well-founded.
In my view, the orders will not compromise the children’s relationship with their Father (s.60CC(3)(d). It is incumbent on him to follow through, comply with the orders and attend regularly and consistently for the times with his children. It is a matter for him if he does so.
The regime of time between children and their Father, supervised by an agency and supervised by the Grandparents, adequately addresses, in my view, issues of cost and practical difficulty. Again, in my view, the ball is in the Father’s court.
I do not understand there to be any issue raised about the Mothers’ capacities to care and provide for their daughters, particularly having regard to the maturity and other characteristics of the children in question. Relevant issues were clearly raised – in my view, properly so - about the Father’s capacity to do so (s.60CC(3)(f) & (g)).
I do not understand there to be any issues in relation to family violence.
In short, in my view, the orders as sought by the respective Mothers – as amended by the ICL and with the further amendments I have indicated earlier in these reasons are those that are in the best interests of the children, [Y] and [Z].
In the joint judgment of Gummow and Callinan JJ in the so-called relocation case of U v U, their Honours spoke, at [92], in the following terms:
The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
Their Honours’ accent on the sacrificial nature of parenthood, particularly in relation to ‘restrictions on personal choice’, I strongly suggest, are salutary in this case. I hope earnestly that Mr Denny heeds them. In my view, he has the genuine capacity to place the interests of his children before his own. If he does not, he, and they, will suffer. It is now up to him. All the Court can do, and has now done, is make orders that are in the children’s best interests. I have no doubt that he wants the best for his children. He now has to prove it by his actions.
I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate:
Date: 21 February 2013
As to the former, see T (22nd February 2012) p.5; as to the latter, see the same transcript at p.31.
Mr Denny confirmed that between 2002 and 2011 he continued to binge drink. See T (22nd February 2011) pp.23-24.
See the discussion at T (22nd February 2012) pp.51-52. I might note here that, in general terms,
Mr and Mrs Denny commenced cohabitation in 1993, married in 1994, and separated in 2002. [X] was born in 1994, and [Y] in 2001.
As I have indicated, these concerns in relation to the paternal Grandparents also summarise
Ms Serle’s evidence on the same matters, which is located at T (21st February 2012) pp.99 & 139.
See T 21 & 34. The drinking regime at this time was generally, after returning from the pub,
Mr Denny would drink a six-pack of beer each night after the children went to bed. He was also using five or six cones, (I assume) each week. See T 27. On the frequency of his use of drugs, see T (14th June 2012) p.90.
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