KAPPEL & CARLSSON

[2018] FCCA 2434

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAPPEL & CARLSSON [2018] FCCA 2434

Catchwords:
FAMILY LAW– History of family violence – no time spent by father with children since 2011 – unparticularised application – mother sole carer since December 2011 – father denied physical altercations – put in issue credibility of father and motivations for application sought – father had very little insight into obligations of diligent parenting – no realistic consideration of equal shared parental responsibility – one child diagnosed with mild Asperger’s syndrome – mother maintaining ongoing relationship with children is in the best interests of children.

Legislation:

Family Law Act 1975, ss.60CC, 117(2A)

Cases cited:

Colgate-Palmolive Company & Anor v Cussons Pty Ltd (1993) 46 FCR 225

Applicant: MR KAPPEL

Respondent: MS CARLSSON

File Number: MLC 11185 of 2013

Judgment of: His Honour Judge Wilson

Hearing date: 23 August 2018

Date of Last Submission: 23 August 2018

Delivered at: Melbourne

Delivered on: 23 August 2018

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant: None

Counsel for the Respondent: Ms M Agresta

Solicitors for the Respondent: Lampe Family Lawyers

Counsel for the Independent Children's Lawyer: Ms S Buchanan

Solicitors for the Independent Children's Lawyer: Trapski Family Law

ORDERS

1. The mother have sole parental responsibility for the children [X] born on 2009 and [Y] born on 2011 (“the children”).

2. The children live with their mother.

3. The children spend no time with their father.

4. By 30 August 2018 the parties file and serve written submissions as to indemnity costs.

5. The issue of indemnity costs is to be determined on the papers.

6. The application filed on 7 October 2018 is otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Kappel & Carlsson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 11185 of 2013

MR KAPPEL

Applicant

And

MS CARLSSON

Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. By application filed 7 October 2016 the applicant has sought final orders including an order that he be allowed time with his children [X] and [Y] “up to 50 custody (sic)” and he has also sought equal parental responsibility including issues concerning medical, education and such like.  

2. Mr Kappel filed an array of affidavits in this case, some relevant, others not, but the key issue in the case was whether, having regard to the circumstances that I will explain in a moment, he should be permitted the relief that he seeks having regard to the competing contention by the mother, represented by Ms Agresta, for orders that she have sole parental responsibility for [X] and [Y]. 

3. The mother has also asked for orders that the children live with the mother, that the children spend no time with the father and that the father pay the costs associated with this proceeding on an indemnity basis.  Ms Buchanan of counsel appeared on the instructions of the independent children's lawyer and advocated for orders essentially in terms of those urged by Ms Agresta. 

4. Before turning to the detail, it is sufficient to observe that the relationship between the parents has been punctuated by in the extreme and by palpable evidence of physical violence.  While it is true the events during which violence was perpetrated predated relatively recent times, nevertheless, the evidence is sufficiently powerful in my view to support the contentions urged by the mother and by the independent children’s lawyer.  The upshot of this, for the reasons that follow, is that I make orders urged by the mother. 

5. It is necessary to go to a little of the detail.  The two children of the marriage, which was short, are [X], born 2009 and [Y], born 2011.  The father left the company of his family in 2011 and has essentially had no time with the children thereafter.  That is a significant period of time. 

6. He has applied to me today with a rather unparticularised application in which he has sought time that he says he is willing to have as supervised time until such time as it can become unsupervised.  I reject his application.  I am persuaded that the father essentially abandoned his family on and from December 2011 showing no interest or any meaningful interest in the welfare of his children thereafter. It would be a remarkable proposition in the face of his absence in their lives for him to re-emerge after such a prolonged period on the basis that he suggests. 

7. I reject the father’s application for equal shared parental responsibility.  In my opinion the proposal urged by the mother for sole parental responsibility is appropriate in the circumstances.  After all, she has been the sole carer of the children since December 2011, there being no meaningful interaction with the father thereafter.  On behalf of the independent children’s lawyer, Ms Buchanan supported the mother’s contentions. 

8. One of the major issues in this case related to the history of family violence.  It emerged in May 2010 with documented and particularised illustrations of it in May 2010, July 2010, November 2010 and February 2011.  Many of those incidents were either the subject of an admission by the father or at least evidence in support of a corroborative nature by others who gave evidence in this case.  I was particularly impressed by the mother’s mother, Ms J, who gave direct evidence of family violence which the father denied that took the form of a physical altercation and spitting. 

9. Mr Kappel was pressed by counsel for the mother about that incident.  He was intractable in his denial of it.  That was hardly surprising, but the direct evidence most compelling to my way of thinking emerged from Ms J whose direct evidence was to the contrary.  She swore that Mr Kappel assaulted her and spat on her. 

10. Aside from the disgusting nature of such behaviour, it put in issue the credibility of the father and his motivations for the application that he sought.  I was not persuaded that he had the best interest of the children at heart – far from it.  It seemed to me that his motivations for bringing his application ranged from his desire to cause some sort of harmonisation between other children of other partners and the two children in this case, or his desire for a purely selfish reason, to have time with the children. 

11. That latter point sat uncomfortably with me because of the fact that on his own behaviour since December 2011, he has taken no steps of any description to interact with the children.  Ms Agresta brought to the fore the absence of any interaction by the father in the form of telephone communication or even postal communication, none of which was availed by the father.  By way of answer to questions about why he had made no efforts to communicate with the children since December 2011, the father gave the unsatisfactory answer that he was unable to find where the children lived. 

12. He was perfectly unable to make inquiries about where they lived. 

13. He spoke of a mediation representing his forlorn attempts to make some sort of contact.  I am satisfied that he has made no attempt whatsoever to insinuate himself in the lives of the children.  That of itself ought to be sufficient to dispose of this case.  But there remained the evidence of violence.  I recognise that the applicant disputed it.  However, I was not persuaded that his denials were particularly valid.

14. In February 2014, the father was charged with assaulting a police officer.  Without conviction, he was put on a good behaviour bond. 

15. The father admitted he avoids people because of his post-traumatic stress disorder and the attendant risk of violence that may thereafter follow.  The father was challenged about an event in 2009 where the mother was taken to hospital as a result of a fight.  The father denied that on 13 April 2010, he sought counselling service as a result of issues relating to his inability to control his emotional outbursts, but by the same token admitted that people aggravated him. 

16. In questioning from counsel either for the mother or the independent children’s lawyer, the proposition was put to the father that among the seven children that he has fathered, he has not addressed in his affidavit any, let alone, in any sufficient detail, the nature, extent and circumstances of his interaction.  That gave me no comfort that he would be diligent in his obligations if I were to accede to his application today.  To the contrary, it seemed to me that he was bereft of insight into basic parenting obligations.  When he was asked about what he might do in his first interaction with the children, he gave a seemingly childish response about how he might spend the first short period of time.  It illustrated to me that he had very little insight into the obligations of diligent parenting. 

17. Surrounding much of the factual matrix of this case was the all-pervading influence of family violence as well as mental ill health.  Both parents admitted that they either suffered from, to a greater or lesser degree, some aspect of mental illness.  The father sought to buoy his position by saying that he was managing it with the assistance of veterans counselling.  It did not appear to me, based on the evidence adduced in this case, that there was any compelling information by which I could be satisfied of the extent to which he had in fact got on top of and controlled his issues of mental ill health.  

18. Unsurprisingly the father denied a collection of allegations of family violence.  He denied smashing a car window, a point that Ms Carlsson senior said she had witnessed and had witnessed flying glass.  That tended to prove what I regarded as a false denial by the father.  I have already addressed the events of September 2010 when the father denied that he slapped Ms J and spat on her. 

19. I am persuaded that that event actually took place in the way Ms Carlsson said.  I do not regard as satisfactory the father’s denial.  He was asked whether he had experienced incidents of having been handcuffed which, surprisingly, the father said that he had been, on more than one occasion. 

20. He denied smashing and kicking, but I regarded with a quizzical want of persuasion, his evidence on the point.  It seemed to me that his denials were to be expected having regard to the orders that he sought in this case and having regard to the fact that family violence was one of the uppermost considerations in this case.  It came as no surprise that he maintained a denial of the existence of family violence other than to the limited extent to which he was forced to agree. 

21. The father agreed that equal shared parental responsibility required cooperation and he said that if he and the mother could work together, there was no reason why such an order should not be made, and in those circumstances there was no reason that he could not have joint care (as he called it).  Conversely, the mother said there was no prospect of any cooperation between the father and the mother because cooperation was non-existent. 

22. It seemed to me that it was unduly optimistic and utterly unrealistic for the father to say that his proposal for equal shared responsibility was satisfactorily underpinned by any realistic consideration of equal shared parental responsibility.  The fact of the matter is that the parents are unable to engage in the cooperative approach to parenting that equal shared parental responsibility has at its core.  It must not be forgotten that since December 2011 the mother has been the principal carer of the children and has done so with the success that she has enjoyed. 

23. Let me now turn to the children.  According to the section 11F report prepared by family consultant A in March 2017 (the most recent available) the children suffer from a variety of developmental issues.  [X] has been assessed and diagnosed as having mild Asperger’s syndrome.  She reported difficulties in her socialisation skills and she struggles to maintain friendships.  It seemed to me that if she were taken from what appeared to be a satisfactory, loving environment and placed in the uncertain environment urged by the father, that her prognosis was poor.  I am not willing to expose her to the risks of that, having regard to what I regard as the flimsy evidence advocated by the father. 

24. Then there was [Y].  The father urged me to accept that [Y] had communicated a desire for him to either spend time with or be exposed to the father.  In fact, that was more optimistic than was the reality.  The mother said that any mention of the father enlivened anxiety in [Y] and she denied that [Y] said he wants to see his father at all.  Having regard to the fact that the mother has had day-to-day care of [Y] since December 2011, it seemed to me more probable than not that her version of events was correct. 

25. When searching for objective evidence to support the position of the children, it is important to observe that the family consultant A has recorded that [Y] has no knowledge of his father given his young age when the parents separated.  That appeared to me to correspond with the most likely state of reality of this case.  In those circumstances I put to one side, to the point of discarding it, almost to 100 per cent, what the father urged me to say represented the wishes of his son [Y]. 

26. The mother, that is to say the respondent to this application, Ms Carlsson, gave evidence of her suffering a perforated eardrum as a result of her exposure to family violence.  That does not bode well for the father’s application for equal shared parental responsibility.  In fact, it would be foolhardy of me to countenance equal shared parental responsibility in view of a history where the relationship between the two was so poor.  It was uncooperative.  It was punctuated by family violence and the prognosis was very poor. 

27. There was evidence of intervention orders as indeed there was evidence of a wholly uncooperative approach between the two.  In those circumstances, I was required to consider the best interests of the children.  The scales of justice tipped in one way only and that was in favour of the mother maintaining the ongoing relationship that she has in the circumstances that she provides.  

28. It seemed to me that the prospects of the children having stability, having a future beneficial relationship with at least one person who remains a constant in their lives and who can offer a stable environment. That is the mother.  It would be wrong to deny her the ongoing care of her children for whom she has expressed her undying love.  The same cannot be said of the father. 

29. I was not persuaded that the father made out his case. I dismiss it and I make orders in terms of the orders sought by the mother. In saying that, I, without enumerating the very many subsections of section 60CC of the Family Law Act (“Act”), indicate that I have taken into account each of them as well as Mr Kappel’s contentions that it is for the benefit of the children that they have a meaningful relationship with both of the parents’ children.  That is true, so long as the children are not exposed to physical or psychological harm. 

30. The evidence in this case tipped compellingly against the father and as a result it seemed to me that having regard to the history of violence exhibited at the hands of the father and his absence from their lives for a sustained period, it could not be said that it is in their best interests for the father to have equal shared parental responsibility, still less, any time with the children. 

31. Lamentable though that may be, by his own choosing the father has absented himself from the lives of the children.  That was his choice, but he is now bound by the consequences of it, and I will not undo under his request for time what appears to be the extremely valuable work that has been done with the children by the mother represented by Ms Agresta. 

32. It is now necessary to deal with the application for costs of the proceeding on an indemnity basis.  I will allow the parties to provide written submissions in seven days that address that point. Otherwise, I adjourn the application of indemnity costs.  I should point out that the state of learning on this subject has been considered by me and the locus classicus, of course, is Sheppard J’s decision in Colgate-Palmolive Company & Anor v Cussons Pty Ltd[1] as applied by any number of single judges of the Federal Court of Australia and of this court.  

    [1] (1993) 46 FCR 225

33. Ultimately it is a discretionary consideration, but in compelling circumstances, an order should be made, and I am disposed to make one if the circumstances for it are shown, having regard to the provisions of s 117(2A) of the Family Law Act.

34. I dismiss the father’s application. 

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson

Date: 31 August 2018