Kramer and Drake

[2007] FamCA 1470

FAMILY COURT OF AUSTRALIA

KRAMER & DRAKE [2007] FamCA 1470

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – Orders

Family Law Act 1975 (Cth)

APPLICANT: Mr Kramer

RESPONDENT: Ms Drake

INDEPENDENT CHILDREN’S LAWYER: Emerson Family Law

FILE NUMBER: BRF 1370 of 2006

DATE DELIVERED: 14 December 2007

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Justice Bell

HEARING DATE: 9 & 10 October 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hodges

SOLICITOR FOR THE APPLICANT: Bronwyn Hay And Associates

COUNSEL FOR THE RESPONDENT: Mr Waterman

SOLICITOR FOR THE RESPONDENT: Sciaccas Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Kirkman-Scroope

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Emerson Family Law

Orders

1. The child … born … April 2004 live with the mother.

2. The parties share equally the long term parental responsibility for the child.

3. Each party be solely responsible for the short-term parental responsibility of the child whist in their respective care.

4. The child spend time with the father as follows:

   (a)From 9.00am Saturday 22 December 2007 to 12.00pm Christmas Day 25 December 2007;

   (b)From 9.00am Thursday 3 January 2008 to 9l00am Monday 7 January 2008 and each alternate weekend thereafter with such weekend time being suspended during school holiday periods;

   (c)During school terms, if the Monday is a pupil free day or a public holiday the father shall return the child at 9.00am on the Tuesday of that weekend.

5. The mother attend upon a treating psychiatrist and undertake treatment as follows:

   (a)The mother attend upon the psychiatrist once weekly for four weeks and undertake a course of psychotherapy, life style adjustments, and any prescribed medication as required by the psychiatrist;

   (b)The mother continue to attend upon such psychiatrist and undertake such combined therapy for twelve (12) months from the date hereof.

6. The mother provide to the Independent Children’s Lawyer at least once every three months a letter from her treating psychiatrist outlining the details of her therapy and her progress to date.

7. Commencing from the Queensland gazetted June/July school holidays in 2008 the father shall spend time with the child in the first half of all Queensland school holiday periods in even numbered years.

8. The father shall spend time with the child for the second half of all Queensland gazetted school holiday periods in odd numbered years.

9. The father shall collect the child at the commencement of the time he spends with the child from the mother’s residence and the mother shall collect the child from the father’s residence at the conclusion of the time the father spends with the child.

10. The father shall exercise telephone communication between 5.00pm and 5.30pm each Wednesday and Saturday with the father to initiate the call to the child on those days to the mother’s landline number.

11. Each party shall provide to the other with their landline telephone number for the purposes of the telephone communication and time spent with the father in the event of an emergency.

12. These orders authorise the child’s school, day care centre, treating physician and other professionals involved in the education and/or care of the child to release information including documents to the father with this order serving as such authority.

13. The mother provide the father with details of the child’s school, treating physician and child care centre and other professionals involved in the education and care of the child.

14. The parties keep each other informed of a contact address and contact telephone numbers, including landline and notify the other within seven (7) days of any change.

15. Each party notify the other of any medical or other emergency concerning the child whilst in their respective care as soon as reasonably practical to do so.

16. The Independent Children’s Lawyer shall remain in the matter for a further twelve months from the date of these orders to monitor progress in relation to the treatment of courses of each parent.

17. At the expiration of such twelve months referred to in Order 16 the Independent Children’s Lawyer shall be discharged.

18. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 1370  of 2006

MR KRAMER

Applicant

And

MS DRAKE

Respondent

REASONS FOR JUDGMENT

1. This is an application on the part of the father for parenting orders in relation to a child of his relationship with the mother.  Very briefly, the respondent mother was born in 1961, the father in 1972.  In or about June 2002 the parties commenced a relationship and from that time on lived together in various states of disarray until they separated initially at the end of 2004 and, after a reconciliation in early 2005, they finally separated in July 2005.

2. A child of the relationship was born in April 2004 and subsequent to separation the child continued living with the mother and subsequently spent considerable time with the father, not only consensually but also by order of the Court after an application was filed in the Federal Magistrates Court on 1 February 2006 which culminated in an order made by his Honour K Slack.  Federal Magistrate Slack ordered on 7 March 2006 that the child live with the mother and that the father spend time and communicate with the child on each alternate weekend from 7.30am Friday to 5.00pm Sunday.  On 31 March the child commenced weekend time with the father. 

3. It is important to consider that evidence, but before doing so, it is also necessary to make clear that my determination about orders that best accommodate the child’s best interests is conducted cognizant of, and bound by, the mandatory pathway and principles now enshrined in the Act.  In the unreported judgment of Burnett & Green [2007] FamCA 1343 delivered 16 November 2007 the Honourable Justice Murphy says as follows:

“Relevant Principles

1.   The decision in respect of a child’s best interests is to be guided by the paramountcy of those best interests.

2.   However, that issue is not left at large by the Act, but rather signposted by a number of mandatory considerations. Some considerations are marked as having primacy, whilst others are additional.

3.   I consider that the “primary considerations” have particular importance but, as the word “additional” implies, they are to be considered in conjunction with the “additional considerations”.

4.   Each such consideration represents not an end point, but a pathway (albeit a mandatory pathway) to determining the best interests of a child, consistent with the overall objectives of the Act. The statutory Objects are given light and shadow by the statutory Principles underlying them.

5.   Together, they represent a number of obligations cast upon those responsible for the nurturing and care of children and rights enjoyed by those children accordingly.

6.   Those Objects and Principles are given further statutory specificity by:

a)directing a court to presume that equal shared parental responsibility is in a child’s best interests; and

b)requiring, consequentially, a court to consider whether an equal time order is in the best interests of the child; and

c)if not, requiring the court to consider whether a child spending “substantial and significant time” (as defined) with each parent is in the child’s best interests; and

d)requiring a court to consider the extent to which parents have fulfilled their parenting obligations, particularly in the post separation period.

7.   The issue of “equal” or “substantial and significant” time is governed, in turn, by a consideration of whether either is in the children’s best interests and whether each is “reasonably practicable”.

8.   The determination of reasonable practicability is, also, not left at large but circumscribed by a number of statutory factors, including geographic distance, capacity to implement the relevant arrangements and capacity for the parents to communicate with each other in the future; the impact on the children and any other matters which the court considers relevant.

9.   In introducing the 2006 Amendments to the Act, the legislature is both presumed to have known the provisions of the previous legislation and to have intended the words used in the new provisions to have real clarity and meaning.

10. It is, in my view, significant, then, that the court is, for example, required, as part of its mandatory considerations, to consider the benefit to a child of a “meaningful relationship” with both parents and the willingness and ability of parents to encourage a “close and meaningful” relationship and to consider the difficulties created by distance and the like effecting a child’s right to maintain “personal relations” and “direct contact” on a “regular basis”.

11. Parenting, let alone “appropriate”, or “adequate”, or “good-enough” parenting – is a multi-faceted concept. It is the combination of a plethora of rights, duties and responsibilities “many of which”, as has been observed, “last a life-time”.

12. Importantly, it is also a product of parental past experiences, psychological health, attitudes, philosophical beliefs, and commitment.

13. Where parental conflict (to one degree or another) or the characteristics or idiosyncrasies of one or both parents mark the parenting relationship, the pursuit of those aims – statutory or otherwise – must, almost by definition, become problematical. Differences in approach, belief systems, attitude and the like are thrown into sharp focus.

14. It is in that context that courts must bring a consideration of the statutory matters to a practical and enforceable conclusion in the individual circumstances of the conflicted parents who, by definition, cannot agree, and the individual needs, desires, health and aspirations of the child the subject of those orders.

15.  Into that context fall the specific issues that mark out the conflict between the parents in this case.”

1. I adopt his Honour’s view.

2. The catalyst of this application took place on or about 23 September 2006.  The mother at this stage, after some bizarre conduct, and particularly insofar as emails are concerned, and I refer to these emails which were forwarded to the father, was admitted to the L Hospital overnight, such admission being engendered, as I understand, by an alleged overdose of drugs by the respondent mother. As I have said there is evidence before me that the mother was exhibiting bizarre symptoms and that subsequently determined by a medical practitioner, she was probably suffering from, at that stage, depression.

3. On 24 September, the child who had been with the father, returned to the mother’s home. And this, as I said, is possibly the catalyst of the whole application.  It is alleged by the mother that the child made a certain disclosure to her in the presence of herself and of her mother.  The form of the disclosure disclosed in the mother’s affidavit and in the maternal grandmother’s affidavit of 15 June 2007.  Subsequently the child also made a disclosure in similar terms to Ms B whose evidence is contained in an affidavit filed by her on 13 June 2007.  She refers to such disclosure taking place at a later date on or about 20 October 2006. I have referred to the disclosures particularised in the affidavits of the mother, the maternal grandmother and Ms B and do not wish to mention them any further.

4. What the grave concern is that the father alleges that the mother has made false allegations concerning his sexual abuse of the child. I do feel that, as frequently happens in cases such as this, it is not the question of the falsity of the contents or the allegation that should be looked at, it is whether or no the allegation itself is false.  It is quite clear before me and I am more than satisfied that the child made some form of disclosure relative to alleged sexual abuse or inappropriate conduct on her person by the father.  It is not, and I emphasise this and I have on other occasions done so, the falsity of the allegation – it is the question of whether the allegation itself was: (1) made; and (2), if made, was there any truth in the allegation.  It is clear in this case that the allegation was made and so the complaints directed against the mother that she falsely made the allegations is totally without foundation.  Consequently, it is my duty to consider the evidence which is before me to ascertain whether there is either:  (a) truth in the allegation (disclosure); or, if there is no truth, whether I am of the opinion that on the evidence before me there would be an unacceptable risk of the father perpetrating upon the body of his child sexually abusive and/or inappropriate conduct. 

5. There are further statements made by the mother that the child made a further disclosure on 5 October. The mother attends the T Hospital with the child and sees a resident social worker and as a result of such appointment it appears that the child was examined by a Dr N of the Child Protection Unit, T Hospital. Dr N is of the opinion that “there is a significant risk that she had been abused”.  See the Family Report dated 20 April 2007 of Mr W, wherein at paragraph 53 he sets out the “statement” of Dr N. I refer to and incorporate in these, my reasons for judgment, that paragraph.

6. Dr N’s views as to why he considers that there was a significant risk that she had been abused appears to be based upon her presentation and the reports of the mother only.  Subsequent thereto the Department of Children’s Safety have been involved and the Queensland Police have been involved.  The father has denied that he has done anything of any nature of an abusive matter towards his child and insofar as the Police and DOCS are concerned they consider that any allegations against the father are unsubstantiated and the allegations have not been pursued any further.

7. Subsequent to these dates to which I have hereinbefore referred, difficulties had arisen in relation to the child spending time with her father but subsequent orders made, particularly by the Honourable Justice Jordan on 19 January 2007 and such order was a supervision order for the father’s spending time with the child to be supervised by his present partner, Ms R, more of whom later. 

8. Thereafter the child has spent time not only with the father but has consensually on the part of the mother spent time with the paternal grandparents for a period of approximately one week in June/July of this year because initially the mother was intending to absent herself from Brisbane, eventually did not do so but had made arrangements with the paternal grandmother and allowed such arrangements to continue.  I consider this is of some substance.

9. Also, since June 2007, the child has spent extra time with her father, consensually once again, supervised by the father’s partner.

10. I have considered this matter as an initial point because I consider, as I have said, that this is the catalyst of the whole matter, whether or no the father has abused his child or, as have said before, whether there is a risk of the father acting towards the child in a sexually abusive and/or inappropriate way.

11. I do not intend to dismiss the gravity of such allegations lightly but indicate that this matter has concerned me to a great extent.  I have considered all the material and have made, in effect, dot points in relation to it, I being under pressure, brought about by my own promise to the parties to get this matter out of the road by Friday, 14 December 2007.  I am more than satisfied the evidence before me, having seen the father, having seen the mother, having read the material and in particular having seen Ms R, the father’s present partner, who impressed me greatly, I am more than satisfied that there was no sexual abuse perpetrated upon this child nor am I in any way concerned that there is a risk that sexual abuse and/or sexually inappropriate conduct would be perpetrated by the father upon the child.

12. Now that that matter is out of the road I have to consider other matters to which I am directed by the legislators in relation to the amendments of 2005. 

13. The father also has alleged that these allegations being false, that that in itself does not advance the welfare of the child and it is a disentitling conduct on the part of the mother.  Mr W is also of a similar opinion.  In his report of 23 April 2007 he indicates at paragraph 65: 

    17.“I am also concerned about the allegations of sexual abuse of [the child] by her father. Queensland Police and DOCS have chosen not to pursue the allegations and the paediatrician’s reports were coloured by [the mother]’s reports of [the child]’s disclosures and associated behaviours.  My fear is that the allegations of [the mother] are false.  If this could be determined to be the case then it would be apparent that [the mother]’s judgment has been very wanting.  She has disturbed the relationship between [the child] and her father and has subjected [the child] to substantial and unnecessary psychological and physical intervention.  If the allegations were concocted it indicates clearly that [the mother] has not had [the child]’s best interests in mind and that she is potentially not capable of providing for [the child]’s psychological needs.  If she has believed that she has been acting in the best interests of [the child], [the mother]’s judgment and understanding of [the child]’s needs is far less than adequate.  Further I would also conclude that [the child]’s relationship with her father is at risk in the future if [the mother] remains in a position to exercise such authority over the relationship.  A change of [the child]’s living arrangements, more limited contact with her mother would then be appropriate.” 

14. Mr W then states:  “However I cannot conclude that the allegations of sexual abuse were false”.  I have already touched upon the fact that the allegations were made and if necessary, if this matter goes to another place, I emphasise the fact that there is no allegation that there has been a conspiracy between the mother, the maternal grandmother and in particular Ms B who came upon the scene in relation to these disclosures almost one month after the allegations were made.  I would have thought that any mother would have been damned if she did nothing about it and in this case it appears as though the mother is damned because she did.  She can be criticised for perhaps taking the matter too far, for her judgment being clouded in relation to a young child in that she does not look upon the father favourably.  There may be many other things which have occurred during the relationship between the parties which would exaggerate the cloudiness of the mother’s judgment in relation to the father.  Those matters perhaps could relate to domestic violence, of which there have been complaints, and of course I must acknowledge the fact because I am directed to do so by the politicians, that domestic violence is a factor in this case.

15. What then is, in effect, the other disentitling conduct alleged by the father in relation to the mother.  These matters are, I consider, proved to the requisite standard.  The mother is an alcoholic.  The mother has a gambling addiction and she has suffered from a mood disorder (see Dr L’s report in relation to depression and in relation to the gambling and alcohol addiction).

1. There is evidence before me that she gambled an enormous amount of money away in the period from 2000 to 2003.  She was not, as has been set out by the father, banned on the evidence before me by … Casino. She herself banned herself, which she is able to do and has excluded herself from the casino.  She does not believe that she has a gambling problem.  I do not accept that. A person who can gamble the enormous amount of money which she did in a position where she really could not afford it, does not, in my opinion, auger well for the future of herself unless she receives some assistance.  I do say in passing that in all probability she only lost $70,000 but there is some suggestion that she bet on the tables something in the excess of $1 million over a two to three year period.  She gave some, as far as I am concerned, pathetic excuses for this gambling.

2. The mother is a pathological consumer of alcohol.  I am of the opinion that her drinking was for a considerable period totally out of control.  She says now that she does not recognise that she has a problem and that in itself is a concern not only to myself, but particularly to Mr W and Dr L. She must recognise that she has a problem there, notwithstanding the fact she has given evidence that she has had only one or two drinks since Christmas 2006.  I am still of the opinion that she must recognise that the addiction is in her body and she must be able to recognise that fact and seek assistance.  I am able to say, as has been noted by the Independent Children’s Lawyer, that in fact she perhaps may be starting to recognise this because she is seeking some form of assistance by way of support from a counsellor. 

3. The allegations of her addiction and gambling do concern me to a great extent.  A prime concern for myself is whether or no this gambling and addiction has in any way impaired her ability to look after and parent the child. The father complains of, in particular, two things other than the “false” allegation of sexual abuse.  That is, one, her inability to look after the child and he refers to an incident when the mother left the house on an evening and left the child in the house alone when she was a very young age.  Secondly, that the mother moves around to a considerable degree.  And there are minor matters to which he has referred in relation to nutrition and things of that nature which did not appear to loom large on the trial itself. 

4. I must say that insofar as the leaving of the child alone in a house or a unit is concerned, that really the father’s conduct itself does not come out in a very good light.  It appears that he was at a friend’s residence either some 10 minutes away or a little further, when he received a telephone call from his partner to the effect that she was leaving, that she was going and she was leaving the child behind and he was to come home and look after her.  There is some conflict in the time it took him to walk this ten minutes but it appears that he did not get back to the house until some six hours after he received notification of the mother’s leaving.  I would think in all the circumstances the person who should look more at their conduct should be the father who notwithstanding the fact knew that the mother was leaving the accommodation did not see fit to leave his friend’s place where he was watching some sort of sporting event on television to get back to look after his very young child.

5. The mother has moved around.  She has given reasons for such moving but it appears that once again she has established herself. 

6. What else is there wrong with the mother’s parenting?  The school and the kindergarten are of the opinion that the child has reached all milestones and there is no complaint or concerns about that.  DOCS has not interviewed the mother or had any reports of the mother’s alleged failure to parent the child adequately for at least 12 months.  The mother has since about June of this year offered, and it has been accepted by the father, more time for the child to spend with the father. 

7. The report of the family reporter indicates that there is nothing that he can see on the face of the child not being adequately parented.  The child appears to be well, healthy, happy and has a relationship between the mother and herself and the father and herself and it is a proper relationship.  There does not appear in Mr W’s report to be any concern as to the emotional and/or physical well-being of the child should she remain in the possession of the mother.

8. At the cessation of this trial I requested counsel to put before me written submissions in a very short time frame and I compliment counsel on complying with that short time frame.  It is important that this matter be resolved as quickly as possible and I do not have the luxury of a considerable period within which I am able to cut, paste and refine my judgment to ensure that I have complied with everything that is required the Act.

9. It is incumbent upon me to consider the provisions of the amendments in the Act and in particular I indicate that the presumption of equal parenting is a matter which has concerned me considerably.  I am of the view, of course, that the responsibilities should be shared between the parties but whether there should be equal time is another matter.  I take into consideration the primary concern, enunciated in the amendments, is the welfare of the child in this case.  I am of the opinion that a form of shared parenting and/or equal shared time would not be in the interest of the child for the primary reason that I do not believe that the relationship between the parties is such as I would expect they would not be able to rationally and easily discuss the relative merits and demerits of their proposals for the future parenting of the child.  I say this advisedly because I do believe that since June of this year there has been improvement in the parties’ relationship to each other and this has been commented upon by the experts and I say commented upon quite favourably and it is something I think which is particularly important. 

10. I therefore have to consider what time should be spent with the child, with whom the child should primarily live and what period of time is in the best interests of the child to spend with the other party.  I refer here to the short opinion of the Honourable Justice Murphy in which he sets out his views of the Act in relation to parenting problems and I am of the opinion that in fact this is an excellent expose and I incorporate that excerpt, if I may put it that way, in these, my reasons.

11. As a result thereof I have to take into consideration with whom the child shall live.  I am more than satisfied in this case because of the following reasons the child should remain with the mother. 

    i)the child’s primary attachment is with the mother;

    ii)the child has lived with the mother for the greater part of her life;

    iii)notwithstanding the difficulties the mother has in relation to drugs, gambling and depression;

    I am satisfied on the evidence before me that she is doing a more than adequate job in the parenting of the child.  I refer to Mr W’s report and in particular to his investigations to educational facilities and, as well, DOCS.  I am of the opinion that it would be traumatic and too traumatic for the child to be removed from the mother notwithstanding Mr W’s report that there has been opportunity for her to develop a relationship, and she has a relationship, between herself and her father and the father’s present partner. 

12. I can see no adequate reason to suggest that the child’s welfare would be better advanced by being with the father.  After all, this is a positive inquiry, see Jurss 1976 FLC, and it is not an inquiry in which negativity should be maximised in contradiction to positivity. I am of the opinion that the mother’s record since about June of this year indicates that she will advance the welfare of the child by communicating with the father and being able to, on occasions, increase the time spent by the child with the father.

13. I am further of the opinion that she will encourage the child to have a meaningful relationship with the father and I would hope that the father would encourage the child to have a meaningful relationship with the mother.

14. I have touched upon the question of physical and/or psychological harm in relation to Section 60CC(2)(b).  I do not believe notwithstanding the mother’s problems that the child will be exposed to physical or psychological harm whilst being in her care.  There is no evidence now to support any allegation that the child is subject to abuse, neglect or family violence whilst in either of the parties’ residence. 

15. The child is too young to express a view and has not been investigated in that.

16. I have touched upon the relationship with the child with each of the parents and I am more than satisfied that the parties are able (see Dr W’s report once again) to encourage a close and continuing relationship between the respective parents.

17. Insofar as Section 60CC(3): (d), I have already touched upon; (c) is not pertinent in these circumstances; (f) I am of the opinion that both parties would equally have the capacity to provide for the needs of the child’s emotional and intellectual needs.  Family violence I have touched upon.  I indicate that as far as I was concerned there was family violence. The parties being separated now, the father re-partnering and the mother endeavouring with the assistance of professionals to improve her outlook in life and particularly her addictions which I have hereinbefore referred militates against any future family violence. 

18. Therefore I am of the opinion in this case that the child should remain with the mother.  Insofar as the question of spending time with the father is concerned, I have taken into consideration the respective submissions and I am of the view, supported by Mr W’s report, that those proposals submitted by the Independent Children’s Lawyer should be the ones generally which are brought into force and effect and I order in accordance with those as amended.

19. In passing may I say seeing Ms R and taking into consideration my unimpressed view of the evidence of the paternal grandmother I do not believe it is necessary for the father to undergo the courses suggested.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell.

Associate

Date: 14 December 2007