Maffitt and Weldon - [2011] FMCAfam 374

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MAFFITT & WELDON

[2011] FMCAfam 374

FAMILY LAW – Parenting – parental responsibility.

Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61B, 61C, 61DA, 65DAC

Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286

Applicant:

MS MAFFITT

Respondent:

MR WELDON

File Number:

BRC 7769 of 2010

Judgment of:

Lapthorn FM

Hearing date:

14 April 2011

Date of Last Submission:

14 April 2011

Delivered at:

Brisbane

Delivered on:

24 May 2011

REPRESENTATION

Counsel for the Applicant:

Mr Jordan

Solicitors for the Applicant:

Rice Naughton Buckley

Counsel for the Respondent:

N/A

Solicitors for the Respondent:

In person

Counsel for the Independent Children’s Lawyer:

Mr Andrew

Solicitors for the Independent Children’s Lawyer:

Legal Aid Queensland

ORDERS

That the mother have sole parental responsibility for the child, [X], born [in] 2003, in relation to all major long term issues affecting the child, subject to the condition that the mother consult with the father at least one month prior to the making of any such decision and specifically in relation to:
(a)The child’s education;
(b)The child’s religious and cultural upbringing;
(c)The child’s health;
(d)The child’s name; and
(e)Any proposed changes to the child’s residence that would make it more difficult for the child to spend time with the father.
That unless the father gives the mother 48 hours notice of any intention to attend an event of any nature in which the child will also be in attendance, he is restrained from so attending.
That in the event the father wishes to review orders (1) and (2) herein he is to comply with the provisions of Orders (16) and (17) of the orders made by consent on 25 February 2011 and in the event of such compliance the parties are to comply with Orders (18), (19), (20), (21) and (22) of the orders made by consent on 25 February 2011.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRC 7769 of 2010

MS MAFFITT

Applicant

And

MR WELDON

Respondent

REASONS FOR JUDGMENT

Introduction

On 25 February 2011 the parents of 8 year old [X] came to an agreement as to a number of parenting arrangements for him. Orders were made by consent on that day which provided for the child to live with his mother, Ms Maffitt and to spend time with his father,

Mr Weldon, supervised by his paternal aunt.
The parents however were not able to reach agreement as to the exercise of parental responsibility for [X] and the extent of the father’s involvement in the child’s activities. I have been asked to decide these issues for the parties.
The mother sought an order that provided for her to have sole parental responsibility in relation to all major long terms issues affecting the child although the form of order sought by her required her to consult with the father prior to making any such decisions. The father sought an order for the parties to have equal shared parental responsibility.[1]
[1] The orders sought by the parties were set out in the Proposed Orders dated 25 February 2011 at proposed order 1.
At the commencement of the hearing the mother sought an order restraining the father from attending any school or extra-curricular activity attended by the child without the prior written agreement of the mother.[2] This was opposed by the father. During the course of the hearing Counsel for the mother informed the court that she no longer sought an order providing for her to give her consent for the father to attend an event but would be content with an order that provided for the father to provide her with prior notice of his attendance at any activity so she could prepare herself and the child.
[2] Proposed order 10 of the Proposed Orders.

Background

The mother and father lived in a de-facto relationship from January 1995 until March 2003. They separated when [X] was only three months of age having been born [in] 2003.
The mother is married to Mr M and they have two children aged 8 and 18 months. They live in an inner city suburb of Brisbane.
The father lives close by to the mother. He is not currently in a relationship nor does he have any other children.
There is no dispute that the mother has been [X]’s primary carer all of his life. The father’s relationship with the child has been limited historically because for the most of [X]’s life the father has worked as [occupations omitted]. This occupation has seen him work in various war zones including East Timor, Lebanon, Georgia/South Ossetia, Iraq, Afghanistan and Mexico. He has also lived in New York for extended periods of time. Whilst living overseas the father would visit Australia twice a year in order to spend time with the child. He returned to Australia at the end of 2009, initially for a limited period of time but now intends remaining in Brisbane for the foreseeable future.
The mother is concerned that she and the father will not be able to work together in making decisions for [X] if the father remains reliant on illicit drugs and alcohol and/or his mental health is compromised. For this reason she is seeking a sole parental responsibility order. The father does not want to be excluded from the important decisions relating to their son and does not believe the difficulties he is currently facing will compromise the ability of the parents to co-operatively make decisions for [X]’s long term welfare.

The Evidence

In support of her Amended-Application filed on 8 February 2011 the mother relied on:
a)Her affidavit filed 30 March 2011 which consolidated her previous affidavits;
b)The affidavit of Dr H filed 15 December 2010; and
c)The documents set out in the list of documents filed 30 March 2011.
The father relied on:
a)His response filed 24 February 2011;
b)His affidavits filed:
i)16 February 2011; and
ii)31 March 2011
c)The affidavit of his sister, Ms H filed 31 March 2011.
The Independent Children’s lawyer relied on the affidavits of:
a)Dr L filed 16 March 2011; and
b)Dr A filed 24 March 2011.
Neither the father nor the Independent Children’s Lawyer required the mother for cross-examination. I do not propose to repeat her evidence in this judgment however a reading of her affidavit suggests that she has been supportive of [X] having a relationship with his father notwithstanding the father’s occupation has taken him away from Australia for most of [X]’s life. Whenever the father visited Brisbane [X] would spend time with his father sometimes for block periods of time of up to three or four days. The mother has observed that [X] and his father have a strong and positive relationship. Consistent with supporting that relationship, when she became aware that the father would be remaining in Brisbane the mother informally agreed with him for [X] to live in a shared care arrangement of five nights one week and two the other week.
This support however was challenged in March 2010 when the mother became concerned about the father’s ability to safely care for [X]. These concerns arose after the father told her he was suffering Post Traumatic Stress Disorder and his admission to her that he was using illicit drugs particularly speed. The mother also observed that the father kept the child home from school on occasions and had heard from the school principal that the father presented at the school one day looking dishevelled and smelling of alcohol. The father explained that he had spilt alcohol on his shirt. I do not propose to make any finding in relation to this incident other than to accept that regardless of the circumstances this information would have added to the mother’s concerns. The mother also gave evidence of experiencing difficulties with the father at a Christmas concert and at sporting games. From the father’s evidence it is clear the parties perceive these incidents differently. It is not necessary for me to determine the factual disputes in relation to these issues.
The child had not raised any concerns about his father to his mother although he has told her that at times it was hard to wake his father up. On at least one occasion the mother needed the assistance of the building manager at the father’s apartment complex to wake the father when she went to collect the child. This added to her concerns.
The mother is concerned that the father has not been complying with requests for drug testing; that he has not been consistent in spending time with the child; and that he has not followed through with drug and alcohol referrals.
I accept the mother’s evidence that notwithstanding her desire to have sole parental responsibility for the child at this stage she has no intention of changing [X]’s name, religion or cultural upbringing. She is not aware of any significant health issues that may affect the child nor does she have any intention of changing the child’s residence.
The father was cross-examined. He impressed as an honest man passionate about his relationship with his son. There were times under cross-examination and during the presentation of his case where he was prone to be verbose and overly expressive although upon direction he limited his inclination to do so. His fear of being excluded from his son’s life was, in my view sincere.
The father readily conceded that he uses illicit substances and accepted the need for him to work through that issue along with addressing his mental health status.
There can be no doubt that role of a [occupation omitted] is one fraught with danger and exposure to the realities of the front line of war. The father gave evidence of having been kidnapped on three occasions and being slightly injured from a roadside bomb on one occasion but having experienced a number of bombing attacks. He said he has been diagnosed by a number of medical practitioners with combat-related Post-Traumatic Stress Disorder (PTSD). He also has a history of substance abuse including alcohol and illicit drugs. The evidence suggests the father has experienced a number of difficulties and in particular recurring nightmares every night, hyper-vigilance and being reactive to noise based stimuli.
Not long after his return from the United States the father told the mother of his condition and invited her to contact his New York doctor. Although the father maintains she did not avail herself of that opportunity the mother’s evidence was that she attempted to contact him. She did however attend upon his Brisbane psychiatrist Dr L on three occasions. The father perceived the mother’s involvement in the sessions with Dr L as being less than engaging. Although I accept that is the father’s perception after hearing evidence from Dr L I am satisfied that the mother actively engaged in the process to help her understand any risks [X] may face in the father’s care and would have been shocked to hear of the severity of the father’s condition. Dr L observed that although the parties had a good rapport the sessions did not go well as a consequence of the father’s compromised health. He was of the view that it would take some time for trust and confidence to be restored between the parties which on the mother’s part would involve her observing over a significant period of time the father’s health stabilising and being drug free.
The father’s sister, Ms H gave evidence but was not required for cross-examination. She has been a friend of the mother since their school days and introduced the mother to her brother. Her unchallenged affidavit set out her significant involvement with and support for her brother. Ms H will be supervising [X]’s time with the father pursuant to the orders made 25 February 2011. She has observed improvement in her brother’s demeanour and stability this year compared to when he returned to Australia. I am satisfied she will continue to be a support for her brother, as well as a critic when necessary; be protective of [X] and keep the mother informed of any potential difficulties for [X]’s relationship with his father.
Doctor H, psychiatrist prepared a report in December 2010 at the request of the parties. He was cross-examined.
Dr H observed the father to present as overactive and excitable during the interview and was at times a little intrusive but that he was able to moderate and control this upon direction. His speech was said to be rapid but fluent and his mood irritable. He did not notice any perceptual disturbance and no evidence of any clinical disorder. He concluded however that the father was “most likely acutely intoxicated with illegal amphetamines at the time of the interview”. In arriving at that conclusion he also opined that such intoxication was not a good sign with regard to his substance misuse.
My own observations of the father in court were somewhat consistent with that of Dr H’s observations at the interview but I do not draw any conclusion that he may have been intoxicated or in anyway influenced by illicit substances whilst before the court. I am satisfied that his presentation would have been influenced by his compromised mental health; his passionate commitment to now being involved in his son’s life and the fact that he was representing himself even though he has a legal background. Dr H reported that the father had insight that he had an intense interpersonal manner which might be scary to other people at times. The father maintained that he was not like that around his son. My observation of the father in court would not necessarily lead one to believe he would be scary but that his communication might be deemed by some people to be “over the top”.
The doctor noted that the father appeared to have insight into how he might need to co-operate with the mother in parenting.
The father told Dr H that he had nightmares every night involving traumatic incidents he has experienced. He reported that he was hyper-vigilant and responsive to noise.
Dr H opined that the father suffers from PTSD, amphetamine abuse, marijuana abuse and probable alcohol abuse under the DSM IV criteria. He was also of the view that the father was very likely to have narcissistic personality traits or even a narcissistic personality disorder but qualified this opinion by saying that it was difficult to be certain about this given the overlying PTSD and substance abuse issues. Notwithstanding his presentation appeared at times to be hypomanic, he discounted a Bipolar disorder. He did not have confidence the father would remain abstinent from illicit substances at this point in time and that his risk of ongoing substance use was high.
He recommended ongoing psychiatric treatment for the father and that he consider an intensive inpatient programme for additional psychological support. Although the report was prepared on the basis of a consideration of the father spending time with [X] I am satisfied the conclusions are also of assistance in determining the issues remaining for consideration.
Dr L is the father’s treating psychiatrist. He first saw the father in May 2010 and had 24 consultations with him until the hearing. There was a gap however between October 2010 and March 2011.
Dr L prepared a report for the court dated 29 September 2010 and was cross-examined. In his report he concluded that the father presented with a complex constellation of anxiety and depressive symptoms complicated by illicit drug use. He was of the view that he required intensive psychiatric treatment, management and ongoing assessment. He felt, at the time of his report, that compliance with his treatment was satisfactory but that his treatment would need to be regularly reviewed. When he gave evidence in April 2011 he was of the view that there had been improvements in the six months since the report had been written but that there was still a need for ongoing management by either himself or another experienced psychiatrist. He was of the view that the very serious set of psychiatric difficulties faced by the father would be ongoing for years. In his view there would be no “quick fix” and part of the challenge would be the need to maintain oversight and management of the father in a way that was affordable for him.
He believed that whilst the father was using illicit drugs there would be a risk that he could act out in an antisocial way and if so there would be risk of harm issues in relation to the child. He said that unless the father is able to stop using illicit drugs permanently he would have “grave and serious ongoing concerns.”
Dr L is reluctant to use diagnostic labelling preferring to focus on treatment for presenting symptoms. He therefore was reticent to diagnose the father with PTSD. In his view the father’s use of illicit drugs would have a significant influence on the presenting symptoms such that they could mask their cause. Until the drug use was removed from consideration in his view he could not go on to consider whether the presenting symptoms would lead to a diagnosis of PTSD. Dr L was of the view that the father running his business was a positive in his functionality and recovery.
The father had also sought a second opinion from Dr P a consultant psychiatrist. His report dated 17 September 2010 was before the court as an annexure to the mother’s affidavit without objection and he was not required for cross-examination. Dr P considered the father to be one of the most complexly ill people he had seen in the year prior to his report.
Although Dr L did not want to classify the father has having PTSD I am satisfied from the evidence of the medical experts that the father has the symptoms consistent with PTSD. I am further satisfied that it will take some time for the father to address his mental health and drug issues. I find that he is well aware of these issues and is committed to addressing them as best he can in the context of his compromised mental health.
Until such time as he is able to positively address them however the mother will remain concerned for [X] and also her ability to work with the father in making decisions for the child. On the evidence I find her concerns to be well founded as I am satisfied that his health issues and drug use would compromise his ability to objectively and effectively make joint decisions with the mother.

Legal Principles

All parenting proceedings are governed by the provisions of Pt VII of the Family Law Act 1975. In determining their outcome the Court is required to have regard to the objects and principles that underlie that part[3] and must consider the best interests of the child as the paramount consideration.[4]
[3] s.60B
[4] s.60CA
The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[5] Section 60B(2) sets out the principles underlying those objects. Unless it would be contrary to a child’s best interests the principles are:
a)Children have a right to know and be cared for by both their parents;
b)Children have a right to regularly spend time and communicate with both their parents and other persons significant to their care, welfare and development;
c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
d)Parents should agree about the future parenting of their children; and
e)Children have a right to enjoy their culture.
[5] s.60B lists the objects and principles for Pt VII.

The legislative framework which must be followed in all parenting cases,[6] mandates that when making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[7] This presumption may be rebutted in cases of child abuse and/or family violence or when the evidence establishes that it is not in the child’s best interests for it to apply.[8]
[6] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
[7] s.61DA
[8] s.61DA(2) & (4)
For the purposes of Pt VII, parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[9] Unless there is a court order to the contrary each of a child’s parents has parental responsibility for that child until they reach the age of 18 years.[10] When a court has made an order for two (or more) people to share parental responsibility for a child any decision involving a major long-term issue must be made jointly by those people after consulting each other.[11] A major long-term issue in relation to a child means an issue:
about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.[12]
[9] s.61B
[10] s.61C
[11] s.65DAC
[12] s.4

Presumption of Equal Shared Parental Responsibility

There is no evidence of family violence or child abuse that would cause the court to displace the presumption of equal shared parental responsibility. The evidence as to the father’s mental health and drug use however raises a number of concerns as to whether it would be in the child’s best interests for the parents to share this responsibility at this stage. In determining this issue I will have regard to the factors set out in s.60CC.

Discussion

In determining what is in a child’s best interests the court must consider the factors set out in s.60CC. Given the limited nature of this dispute however I do not propose to address them under specific headings. I have however had regard to all of the provisions.
There is no doubt the child has a good relationship with the father that has been fostered by the mother ever since he was born. The mother’s request for some notice before the father attends any of the child’s activities will not of itself detrimentally affect that relationship especially now that she does not seek to veto the father’s attendance. I am satisfied there is no evidence of a lack of willingness on the mother’s part to promote a relationship between father and son. Even in her request for sole parental responsibility she sought orders requiring her to consult the father before making a decision and I am therefore satisfied that she does not want to exclude the father from the child’s life or decisions that will affect his life.
The father has played rugby union for [team omitted] and has coached both school boy and senior teams. Throughout 2010 he assisted with the coaching of [X]’s [omitted] team and he continues to be involved with the team.
The mother’s original proposal to restrain the father from attending the child’s events without her consent had the potential to impact on the father’s continuing involvement with [X]’s sport and education. Her concern about the father attending these sorts of functions or activities when the child is likely to be in attendance flows from her concerns about exposing the child to conflict or inappropriate behaviour on the part of the father. The mother’s alternate proposal as to the father giving her prior notice would more easily accommodate the benefit of [X] having his father involved with his sport and schooling and at the same time afford the mother an opportunity to prepare herself for the father’s presence and if she felt it was necessary talk to the father’s sister about any safeguards that could be employed.
I do not consider this too great a burden on the father even though it may take away a sense of spontaneity in his involvement with his son’s activities. Given the father’s health it is important the child has a sense of stability and security when both his parents are at the same venue. Should the father’s health improve and he becomes abstinent of illicit drugs the parents may be able to revisit this issue.
Given the child’s young age it is not necessary for me to consider his views however there is no suggestion that the child would not want his father at any of his sporting or school events.
The father has had an occupation that has taken him out of the country for the majority of this child’s life. His recent decision to be more available for [X] is a positive sign of his commitment to his son. His capacity to fully parent however has likely been affected by his reliance on illicit substances and his compromised health.
I accept the mother’s position that it is unclear as to how the father will manage his mental health issues and how long it will take for him to address his illicit drug use. Until a clear picture is achieved there will be doubt as to the father’s ability to properly engage with the mother when called upon to make important decisions for the long term benefit of [X].
The fact that the father has not complied with the requirements to provide clear drug screens to the mother, regardless of the reasons and the reports from Doctors H and L would not give the mother confidence that the father has been able to sufficiently address his issues to date. I share her concerns. I accept the father has insight into his need to overcome his drug dependence and to stabilise his mental health but the seriousness of his condition will require a long term approach and commitment from the father and has the potential to have periods of positive progress as well as set backs. Until the mother sees significant improvement in his mental health and consistent abstinence she is unlikely to have the trust necessary to work closely with the father in making decisions affecting the child. I would also be concerned as to the father being able to be sufficiently objective to attend to his responsibilities in this regard if he is unable to address these issues.
The issue of parental responsibility is important and to make an order for sole parental responsibility should only be considered when there is no alternative. To exclude a parent from the decision making process in relation to a child’s long term care welfare and development is to deprive a child of input from that parent. There are occasions however when that is necessary. To effectively make co-parenting decisions the parents must be able to communicate in a respectful and effective manner and be able to work through their differences to reach a child focused decision. To do this parents usually need to share a level of trust and respect or at the vey least have the ability to be objective about the other parent and the child’s needs.
The mother currently lacks that trust in the father. I am satisfied that that lack of trust is objectively warranted. There is also the potential for the father to be less than objective whilst he is reliant on illicit drugs and there remains doubt as to his compliance with treatment for his mental health.
Whilst understanding the father would want to equally share the responsibility, at this stage in his life his health and drug dependency mitigates against him being able to do so. Although the evidence suggests that the parents have been to communicate respectfully at times there has also been conflict and I am not satisfied that they will always be able to communicate effectively to resolve differences that may arise. Consequently it would not be in the child’s best interests for the parents to share the decision making at this stage. Should the father’s health improve and the mother’s trust restored the child would benefit by having both his parents make decisions for him. Therefore it would be prudent to have a mechanism where this issue could be reviewed.
In the consent orders of 25 February 2011 the parties made provision to review the periods of time the father would spend with the child in the future by including in those orders a mechanism by which the father would provide to the mother reports from his treating psychiatrist and drug testing and obtain an independent psychiatrist evaluation.[13] A similar approach is in my view warranted for both the notice to the mother of intention to attend activities and the issue of parental responsibility. This approach would reduce the potential for further litigation. The mother was supportive of this approach.
[13] Order 16 of the Orders made by consent on 25 February 2011.
Although the mother asked for an order that would allow her to give the father seven days notice of any decisions in relation to the child, given such matters involve long term issues I am of the view that she should give the father at least one month notice.
For these reasons I make the orders set out at the commencement of this judgment.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Lapthorn FM

Date: 24 May 2011