Pishke & Rupp; Bannon & Rupp
[2010] FamCA 632
•26 July 2010
FAMILY COURT OF AUSTRALIA
| PISHKE & RUPP; BANNON & RUPP | [2010] FamCA 632 |
| FAMILY LAW – CHILDREN – WITH WHOM CHILDREN LIVE – With whom children spend time – The fathers removed their respective children from the mother without prior notice – The maternal grandfather has been convicted of sexual abuse of the subject children’s older half sibling – The children have been living with their respective fathers for some eighteen months – The children have spent little time with their mother since living with their respective fathers FAMILY LAW – CHILDREN – PARENTAL CAPACITY AND RISK – The mother suffered an acute mental health concern following the children’s removal – Where the mother has so far been compliant with medication and treatment advices – Expert opinion provides that the mother’s psychiatric diagnosis alone does not diminish parental capacity – Mother’s mental health alone does not deprive her of parental capacity, nor present an unacceptable risk – Fathers allege the mother poses a risk from drug use – Limited evidence of any such purported use – Fathers allege the mother places the children at risk with the maternal grandfather – Maternal grandfather is incarcerated and the mother asserts a firm desire to exclude him from the children’s lives FAMILY LAW – CHILDREN – MEANINGFUL RELATIONSHIP – Expert evidence provides that the children are significantly attached to both their parents – Children will benefit from a meaningful relationship with both parents – Duration of estrangement from the mother points to a conservative, incremental reintroduction – Consideration of willingness to facilitate a relationship with the other parent – Consideration of the fathers’ behaviours in removing children from the mother – Expert evidence reveals the children are progressing well in their father’s care – Best interests require stability and continuity in the care and living arrangements for the children |
| Family Law Act 1975 (Cth) ss 4, 60CA, 60CC, 61B, 61C, 61D, 65AA, 65D, 65DAA, 65DAC, 65DAE, 69ZT, 69ZQ, 69ZW Mental Health Act 2000 (Qld) |
| Chappell & Chappell (2008) FLC 93-382 CDJ & VAJ (1998) 197 CLR 172 Cotton & Cotton (1983) FLC 91-330 Cowley & Mendoza [2010] FamCA 597 Goode & Goode (2006) FLC 93-286 MRR & GR (2010) 263 ALR 368 Runcorn & Raine [2008] FamCA 1021 Secretary, Department of Health and Community Services v JWB & SMB (1992) 175 CLR 218 |
| APPLICANT BRC5106 of 2007: | Mr Pishke |
| APPLICANT BRC642 of 2009 | Mr Bannon |
| RESPONDENT: | Ms Rupp |
| INDEPENDENT CHILDREN’S LAWYER: | Doris Chan |
| FILE NUMBERS: | BRC | 5106 | of | 2007 |
| BRC | 642 | of | 2009 |
| DATE DELIVERED: | 26 July 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 16-18 March 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT BRC5106 OF 2007: | Mr Sara |
| SOLICITOR FOR THE APPLICANT BRC5106 OF 2007: | Delaney & Delaney |
| COUNSEL FOR THE APPLICANT BRC642 OF 2009: | Mr Middleton |
| SOLICITOR FOR THE APPLICANT BRC642 OF 2009: | Schultz Toomey O’Brien |
| COUNSEL FOR THE RESPONDENT: | Ms Howe |
| SOLICITOR FOR THE RESPONDENT: | Walker Pender |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: | Mr Bourke |
| SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER | Legal Aid Queensland |
Orders
Parental Responsibility
The father and the mother shall have equal shared parental responsibility for the child S PISHKE born … December 2005 in respect of all “major long-term issues” as defined in the Family Law Act 1975 (Cth) (as amended).
The father and the mother shall have equal shared parental responsibility for the child C BANNON born … October 2002 in respect of all “major long-term issues” as defined in the Family Law Act 1975 (Cth) (as amended).
The parties shall each have, during all such time that the children are in their respective care, parental responsibility in respect of issues that are not “major long-term issues”.
Co-Parenting Arrangements
The children S born … December 2005 and C born … October 2002 shall live with, spend time with and/or communicate with each of their parents for such periods of time, or in such manner, as might be agreed between the parents in writing and, failing further or other agreement, in accordance with the succeeding provisions of these orders.
The child S born … December 2005 live with his father.
The child C born … October 2002 live with her father.
The mother shall spend time with the child C from 10am to 4pm on each of the following Saturdays: 31 July 2010, 7 August 2010, 14 August 2010 and 21 August 2010.
The mother shall spend time with the child S from Saturday 6pm to Sunday 4pm on of the following weekends: 31 July – 1 August 2010, 14-15 August 2010.
Commencing Saturday 28 August 2010 the mother shall spend time with both children from Saturday 10am until Sunday 4pm each alternate weekend.
For the purpose of paragraphs 7 to 9 above, all handovers shall, unless otherwise agreed in writing between the parties, take place at the H Contact Centre, with the costs of such handover to be shared equally between the parties.
Each of the fathers of S and C shall facilitate C spending time and communicating with S for a period of not less than eight (8) hours once per month.
The children shall spend half of each gazetted school holiday with the mother, being the first half in 2010 and each even numbered year thereafter and the second half in 2011 and each odd numbered year thereafter.
The parents shall spend time with and communicate with the children on special occasions as follows:
(a)In each year that Mother’s Day falls on a weekend when the children are in their respective father’s care then the children shall spend time with the mother on the Mother’s Day weekend in lieu of the following weekend and in each year that Father’s Day falls on a day when the children are in the mother’s care, the children shall spend time with their respective fathers on the Father’s Day weekend in lieu of the following weekend;
(b)On each child’s birthday, the parent who does not currently have care of the child shall spend time with the child from 9am until 1pm, unless such day is a school day then the parent shall spend time with the child from 4pm until 6pm;
(c)In 2010 and each alternate year thereafter, the mother shall spend time with the children from 10am Christmas Eve until 1pm Christmas Day.
(d)In 2011 and each alternate year thereafter, the mother shall spend time with the children from 1pm Christmas Day until 5pm Boxing Day.
The mother shall be at liberty to telephone the children at all reasonable times as may be agreed between the parties but not less than once per week on Wednesday between 4pm and 6pm, with the fathers to facilitate such calls and provide privacy for the children to take such calls.
The fathers shall each facilitate the respective children telephoning the mother at all such times that are reasonably requested by the children.
During periods when the children are spending time with the mother in accordance with order 12, 13(c) or 13(d), the fathers shall be at liberty to telephone the children at all reasonable times as may be agreed between the parties but not less than once per week on Wednesday between 4pm and 6pm, with the mother to facilitate such calls and provide privacy for the children to take such calls.
The mother shall keep each father informed at all times of the name and address of her current treating psychiatrist or psychologist.
The mother shall obtain from her treating psychiatrist a written report as to her current psychiatric condition, her compliance with any prescribed medication and any other recommended treatment regime in so far as each and all affect or might affect her capacity to care for the children and shall provide copies of such report to each father at six-monthly intervals from the date of this order, with the first such report to be prepared and provided by 30 September 2010.
The evidence of Doctor V, Consultant Psychiatrist be transcribed and a copy of the transcript be provided to the Independent Children’s Lawyer.
The Independent Children’s Lawyer shall provide to the mother’s treating medical practitioners, including her general medical practitioner and also her treating psychiatrist Dr D, a copy of:
(a)The transcript of evidence of Doctor V and the Psychiatric Reports prepared by Doctor V annexed to the affidavit of Doctor V filed 4 December 2009 in these proceedings;
(b)The Family Reports by Mr L, Family Consultant dated 21 October 2009 and 12 February 2010 prepared in these proceedings.
Each party shall do all such things and sign all such documents as may be necessary or required to:
(a)Authorise each parent to communicate with, and receive communication from, any doctor or health professional of whatever type, whom the children consult;
(b)To speak to, and receive at that parent’s own expense, oral or written communication, from any school or other educational institution attended by the children;
(c)Keep the other parent appraised of their residential address and telephone contact number, providing notice within two (2) days of any change in same;
(d)Notify the other parent should either child suffer any medical emergency, serious illness, or other significant issue affecting either child’s health or welfare, whilst in their care.
Each party shall enrol in a Parenting Orders Programme (aka POP) with Relationships Australia or Foundations Child & Family Support Ltd within fourteen (14) days of these Orders and each party shall attend to completion such programme and each party shall thereafter provide to the other party, a copy of their respective certificate of completion.
The Independent Children’s Lawyer is discharged 30 days subsequent to compliance with paragraph 20 of these orders.
IT IS FURTHER ORDERED THAT
Dismissal of Other parenting Applications
All outstanding applications for parenting orders be otherwise dismissed and removed from the list of cases awaiting finalisation.
Other Orders
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
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 Pishke & Rupp; Bannon & Rupp is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC5106 of 2007 & BRC642 of 2009
| MR PISHKE |
Applicant Father BRC5106 of 2007
And
| MR BANNON |
Applicant Father BRC642 of 2009
And
| MS RUPP |
Respondent Mother
REASONS FOR JUDGMENT
The mother, Ms Rupp, has three children by three different fathers. One father is unknown. The other two, Mr Pishke and Mr Bannon, are the applicants for parenting orders which are the subject of the current proceedings.
The children subject of the current proceedings are S PISHKE born in December 2005, (currently 4½ years old) and C BANNON (aka RUPP) born in October 2002, (currently 7½ years old). The mother’s third child E RUPP (aka …), was born in December 1999 (currently 10 ½ years old).
The assertion just made is made tentatively; material filed by the parties indicates various versions of the children’s names and dates of birth, for example:
…
I propose to refer to the child S PISHKE as S born in December 2005; and to the child E RUPP as E born in December 2000.
In the case of C, a birth certificate has been filed which verifies her correct details as C BANNON born in October 2002.
The fathers of S and C have an amicable relationship and acted together to remove each of their two children from the mother’s care in December 2008 (without any prior notice to the mother). The two children have remained in their respective father’s care since that time.
The relationship between the fathers, the interrelationship of the siblings, and the similarity of the issues, all pointed to it being in the interests of expedition and, thus, in the best interests of the children, that the proceedings in both cases be heard together (see s 69ZQ and s 69ZT Family Law Act 1975 (Cth) (“the Act”)). This is what occurred.
The mother continues to care for E. No orders are sought by anyone in respect of her.
The time that the children have spent with their mother has been curtailed since both the fathers removed their respective child from her residence in December 2008. Initially, that can be explained by the mother’s admission for inpatient psychiatric care occurring immediately after the removal of the children.
Immediately following the removal of the children by the fathers the mother was taken to hospital where she sought medical and/or mental health assistance. The evidence seems to reveal that the mother was not ‘admitted’ at this time and spent less than one day at the hospital. Within a few days of returning home, however, the mother was placed under an Involuntary Treatment Order following an incident on 30 December 2008 and continued to receive psychiatric care accordingly. That issue will be addressed further below.
The treatment order ceased in about mid-2009, but the mother continues to receive treatment from a private psychiatrist in consultation with her GP. She has been diagnosed with bi-polar disorder and is prescribed, and has been taking, lithium. A single expert psychiatrist, Dr V, gave evidence to the court. It will be referred to in greater detail below.
The Department of Communities (Child Safety Services) (“the Department”) had been involved with the mother and children for some period leading up to the events of 28 December 2008. The mother’s father, with whom the children had regular contact, sexually interfered with E, abuse concerns coming to light in about September 2008. He was convicted of sexual offences and, at the time of hearing, is serving a jail term. There is evidence that he will be released in January 2011 although the mother said that (for reasons, which, I confess, I couldn’t understand) this may occur later.
It is helpful to commence with a series of findings – emanating from unchallenged evidence – giving a factual context to the issues and ultimate findings which need to be made.
Factual Context to Current Proceedings
Mr Pishke and the mother commenced residing together in about April 2003. At that time, the mother’s child E was not yet 2½. Their child, S, was only 5 months old when the parties separated.
In April 2007, about 12 months after the parties separated, Mr Pishke commenced proceedings in the Federal Magistrates Court seeking orders for S to live with the mother, shared parental responsibility and S spending time with him, including overnight time, each alternate weekend. The application was returnable on 1 June 2007 but, on 31 May 2007, the father filed an application seeking a Commonwealth Location Order.
When the matter came before Federal Magistrate Burnett, the Federal Magistrate made an order that a Family Consultant prepare a report and for the father to have supervised time with the child at the H Contact Centre each Saturday between 9.00 am and 1.00 pm.
A report from a Regulation 8 Counsellor, Ms Q, was released to the parties in August 2007. That report became an exhibit in these proceedings (Exhibit B1). During the course of that report, Ms Q noted that:
[the mother] said she wants [S] to spend supervised time with his father when he is ready. She was not able to describe what would assist him to become ready and was not able to consider anything beyond this. [The mother] said she wants supervised contact because of past domestic violence from the father. She is concerned if [S] spends time with his father, he would be exposed to the father and paternal grandmother’s discussions about adult issues and the possibility that they may use physical discipline on [S].
Ms Q also noted that the mother was “somewhat histrionic and labile in her presentation”. In a comment that, as will emerge, finds reflection in my assessment of the mother in the proceedings before me, Ms Q said:
… She was at times tangential, frequently spoke in generalisations and gave vague responses to specific questions. I gained the sense that this was the mother’s general style of communication as it was pervasive throughout the interview. At times, the information she provided especially in relation to childhood experiences was disjointed and confusing. She explained this was a difficult period for her and said she thought her memory of this was problematic as a result.
Ms Q concluded that the mother:
presents with some characteristics of a histrionic personality disorder … It is possible these aspects of her personality impact on her capacity of insight regarding [S’] needs, especially in regard to his relationship with his father …
It is of some significance to note, in light of the issues in the current dispute, that Ms Q said:
During the last assessment, it was identified that due to an extended period of not spending time with his father, [S] was no longer familiar with his father and did not adapt easily to spending time away from his mother … [Ms Q is referring to an earlier report prepared by her]
Equally, Ms Q was of the view that both parents had “contributed to the failure for visits to proceed in a consistent manner” and that:
the father’s behaviour has contributed more significantly and shows a lack of consideration for [S’s] needs … The father showed no insight and took no responsibility for how he had contributed to the inconsistency of [S’s] visits with him …
A possible subtext to this dispute is the mother’s general lack of regard for the role of the father. This is evident in the statement that she made about fathers in general, her attitude towards the father of her children, and toward her own father …
In April 2008, consent orders were made between Mr Pishke and the mother whereby S lived with the mother and spent gradually increasing time with Mr Pishke so that, within a year, he was to have overnight time.
The mother’s relationship with Mr Bannon commenced in about October 2001. Their relationship ceased about April 2003 according to the mother and, according to the father, in January 2004. C was, at those times, about six months and 14 months old respectively.
Subsequent to their separation, Mr Bannon’s employment took him to various places, including northern Queensland. During that time, which lasted for about six months from September 2004 to April 2005, the father says he flew to Brisbane one weekend a month to see C. In about April 2005, the father says he returned to live in Brisbane and arranged with the mother to see C each weekend, spending overnight time every second weekend. In September 2006, the father moved to the Sunshine Coast and effectively spent alternate weekends with C.
In February 2008, the father says, and I accept, that he began experiencing difficulty with the mother in arranging time to see C.
Each of the fathers deposed to difficulties in spending time with their respective children from about early 2008. In the case of Mr Pishke, he had, as earlier referred to, orders (made by consent) providing for that time.
Mr Bannon deposes, and I accept, that on 5 December 2008, he was notified by text message from the mother that the mother’s father had been sexually abusing her daughter, E. He deposes that the wording of the text was (quoted literally) as follows:
Hi [Mr Bannon] it’s [the mother] im really sorry tat being in touch properly. this is hard 4 me say but I need tell u ….. I just found out tat my so called father has been sexually abusing [E]. My life has been turned upside down he has been charged and I have wiped him out of my life so I don’t have a father any more and I am movin out of [H] 4 good …. So I hope this makes u understand …. I wonder why I have so many problems … sorry [Mr Bannon] …. have u paid next child support yet? sorry I need all the help I can scrap up cos it’s a big move.
Mr Bannon deposes, and again I accept, that on 8 December 2008, he offered to the mother that she live at his house at the Sunshine Coast to which the mother responded:
Ive been in hospital over night stay I had to prove I was ok cause I crumbled when I was told…and still cant get my head around it… And I am still finding out more… man its hard but I have to be strong… and tanks 4 the offer but I don’t think we could handle livin wit a male I hope u understand [Mr Bannon] talk soon [the mother]. [Again quoted verbatim.]
The father responded, also by text, as follows:-
Ok, so it sounds like the only way I can see my [C] again is for [Mr Pishke] and I to team up and prove your and unfit mother, which wont be hard at the rate your going, Or u can snap out of it and let me help u raise [C] as a team like adults do.
Mr Pishke deposes to having received from Mr Bannon the information just referred to.
The report prepared by the Department pursuant to s 69ZW of the Act (which became Exhibit ICL2) records a notification being received on 4 October 2008 that the maternal grandfather had sexually abused E. The notification went on to indicate that the mother “had continued to allow unsupervised contact between the children and the grandfather despite being aware of these disclosures”. The notification also referred to “neglect and emotional harm of [C] and neglect of [E] and [S]”. Those concerns emanate from the same disclosure.
Mr Bannon made telephone calls and attended a meeting at the Department of Child Safety. At the meeting on 10 December 2008, Mr Pishke was also present. In his affidavit, Mr Bannon maintains (and confirmed it in the witness box) that a representative of the Department had indicated to him that if he was concerned about C, he could “go in and take [C] away from [the mother] and no Government Department would take [C] back off me given that there were no court orders in place”.
The fathers depose to continuing to receive advice and monitor the situation with respect to the children about whom they each say they had significant concerns. The concerns emanated from the text message in October.
Mr Bannon deposes that on 18 December 2008, he was notified by a Departmental officer that the Department had progressed their investigations and “found that she was not willing or able to care for the children and that the children had been put under an interim protection order”. He deposes that the Department “were doing weekly check-ups on the children to ensure their safety”.
Mr Bannon deposes that it was after this that he and Mr Pishke “decided to take our own action in relation to the wellbeing of the children”.
Mr Bannon deposes to having received advice from the police and his solicitor (not his current solicitor). At about 9.30am on 28 December 2008, he and Mr Pishke went to the mother’s house and removed the children without notice to the mother. In oral evidence, he indicated that he and Mr Pishke had been planning this action for some time – Mr Pishke said that it started with them “joking about it” and progressed to a plan because he considered the Department were either powerless or unwilling to take steps to care for the children and he considered that they were at serious risk of harm.
The s 69ZW report prepared by the Department indicates that, as from about late November 2008, the Department was unable to contact the mother via telephone and had left messages which were not returned. The records reveal that the Department was unable to ascertain the mother’s location and that the mother had not been at the family home and had not responded to requests to contact the Department. The records also reveal that information from other family members indicated they were also having difficulty contacting the mother.
Importantly, Departmental records indicated that C and E were no longer attending school and the school had no information as to the children’s whereabouts.
The Department eventually contacted the mother on 16 December 2008 and agreed to an “Intervention with Parental Agreement”. At that time, the children were seen and appeared to be “happy and healthy”.
On 29 December 2008, the day following the fathers taking each of their respective children, the Department, through its officers, attended the residence of the mother with police officers. The records reveal the mother “presenting with paranoid thoughts” and “being unable to converse with Departmental officers or answer questions”.
On 30 December 2008, as a result of police involvement and the issues just referred to, the mother was admitted to the Psychiatric Unit of H Hospital pursuant, it seems, to an Involuntary Treatment Order.
In the usual course, an Involuntary Treatment Order pursuant to the Mental Health Act (Qld) 2000 would come to an end after six months and would need to be renewed thereafter. It appears that at the conclusion of the Involuntary Treatment Order, in about June or July 2009, the order came to an end and was not renewed.
During the currency of the Involuntary Treatment Order, the mother received psychiatric care and, as earlier indicated, continued to consult her own psychiatrist subsequent to the cessation of that order and was continuing to consult that psychiatrist, Dr D, at the time of trial.
The court is assisted in this complex factual matter by single expert evidence from a family consultant, Mr L, whose helpful and thoughtful reports, and oral evidence, I was greatly assisted by. I was also greatly assisted by similarly thoughtful and helpful - and essentially unchallenged - evidence from Dr V, a reporting consultant psychiatrist. This evidence will be considered in detail below.
The Proposals of the Parties
It will be appreciated that the fathers have what might be described as a “common interest” in these proceedings. So much is made clear by the fact that each of them seek orders that their respective children live with them and the evidence reveals that they facilitate contact between the siblings by reason of the friendly relationship between the two of them. Their position in that respect was confirmed at the end of the hearing when each of them joined in seeking precisely the same orders as those sought by the Independent Children's Lawyer.
At the conclusion of the hearing, counsel for the Independent Children's Lawyer handed up orders sought by her pertaining to each of the children. The respective fathers adopted those orders as their own proposals save for a slight modification whereby the fathers each sought an order in similar terms for telephone communication between each of the children and the respective fathers during periods of holiday time with the mother.
The orders proposed in respect of C differ from those sought with respect to S in that the first four occasions of time mooted in the draft minutes occur during the day only (from 10.00 am to 4.00 pm Saturday) and not with S present at the same time. Thereafter it is proposed that the mother spend time with C for the same amount of time as S and contemporaneously with the time with S, between 10.00 am Saturday and 4.00 pm Sunday. Changeover in respect of each of the children for periods of time is proposed to take place at the H Contact Centre. Otherwise, the orders proposed by the fathers are a mirror copy of each other.
Given the common position of the fathers and the fact that their respective positions accord with the Independent Children's Lawyer (save for the minor matter referred to above) it is, I think, important to set out the precise terms of the orders sought by the Independent Children's Lawyer. I will include in these Reasons the mooted orders as they apply to C, noting that the only difference in respect of the orders mooted in respect of S is that to which I have just referred.
The orders sought, then, by the Independent Children's Lawyer are as follows [quoted verbatim]:-
ICL’s Proposed Draft Final Orders
1.That the mother continues to undertake specialist psychiatric care and treatment as required by her treating psychiatrist.
2.That the mother shall keep the father informed at all times of the name and address of her treating psychiatrist.
3.The mother shall obtain from her treating psychiatrist a written Report as to her current psychiatric condition and wellness to care for her children and she shall provide copies of this to the father, such Report to be obtained every six months, commencing from September 2010.
4.That evidence of [Dr V], Consultant Psychiatrist is transcribed and a copy of the transcript be provided to the ICL.
5.The ICL shall provide:
(a) A copy of the transcript of evidence of [Dr V] and the Psychiatric Reports prepared by [Dr V] annexed to the affidavit of [Dr V] filed 4th December, 2009 in these proceedings;
(b) Copies of the Family Reports by [Mr L], Family Consultant dated 21st October, 2009 and 12th February, 2010 prepared in these proceedings.
To the mother’s treating medical practitioners including her general medical practitioner and also her treating psychiatrist Dr [D].
6.The child [C] born […] October, 2002 shall live with the father.
7.The father shall have sole parental responsibility of [C] upon the condition that he reasonably consults with the mother prior to making any decision about [C’s] long term care, welfare and development particularly regarding matters of health and the child’s education, such that the father shall prior to making a decision:
(a)the father shall give written notice to the mother of what he is proposing for the child;
(b)the father shall allow reasonable time for the mother to respond in writing;
(c)the father considers any expressed wish of the mother; and
(d)the father shall if he believes it appropriate, enters into further written discussion with the mother.
8.The father shall keep the mother informed at all times in writing of the name and address of the any treating health professional for the child.
9.The mother is authorised by this Order to discuss at her expense and upon her request, with any of the child’s treating health professionals, the child’s treatment and to obtain any reports in relation thereto.
10.The father shall keep the mother informed at all times in writing, of the name of any school that the child attends from time to time and the mother is authorised by this Order to obtain from the child’s school at her request and expense, any information pertaining to the child’s progress at school including copies of the child’s report cards, school newsletters and school photographs.
11.The mother is permitted by this Order to attend at any school function, parent/teacher interviews, school concerts and sports days that parents are from time to time invited by the school to attend.(????)
12.Each party shall keep the other party informed at all times in writing of their current residential address, their landline telephone number and also of their mobile telephone number and shall notify the other party in writing within 2 days of any changes to any of these.
13.The child shall be permitted to telephone the mother at any reasonable time and at a minimum at least once per week on _________________ at ____________ and the father shall take all necessary steps to facilitate the telephone contact.
14.The mother shall be at liberty to telephone the child at all reasonable times as may be agreed between the parties but not less than once per week on ______________ at ___________ AND the child shall receive the calls from the mother in private with the father to take all necessary steps to facilitate this occurring.
15.The mother shall spend time with and communicate with the child on each alternate Saturday from 10am to 4pm for four (4) occasions, commencing on _________________. Thereafter the mother shall spend time with and communicate with the child on each alternate weekend from Saturday 10am to Sunday 4pm, commencing on __________________.
16.After the initial four occasions of time referred to in paragraph 14 above, the mother’s time with [C] shall be contemporaneously with the time she spends with the child [S].
17.For the purpose of paragraph 14 above, all handovers shall unless otherwise agreed in writing between the parties, take place at the [H] Contact Centre, with the costs of such handover to be shared equally between the parties.
18.The father shall facilitate the child spending time with and communicating with the child’s sibling [S] for a period of no less than eight (8) hours once per month.
19.From the Queensland gazetted in June/July 2010 school holidays, the child shall spend half of all the school holidays with the mother being the first half with in 2010 and each even numbered years thereafter and the second half in 2011 and each odd numbered years thereafter.
20.The mother shall spend time with and communicate with the child on special days as follows:
(a)On Mother’s Day in each year provided that if Mother’s Day falls on a weekend when the child is in the father’s care, then the child shall spend time with the mother on the Mother’s Day weekend in lieu of the following weekend and further provided that the child shall spend time with the father on Father’s Day in each year and where Father’s Day falls on a weekend when the child is in the mother’s care, the child shall spend time with the father on the Father’s Day weekend in lieu of the following weekend.
(b)On the child’s birthday and also on Christmas Day in each year, the parent who does not have the child in their care on that date, is permitted to telephone the child between the hours of ____________ and ____________ and the parent who has care of the child that day shall take all necessary steps to ensure the child is available to receive the telephone call.
21.Each party shall enrol in a Parenting Orders Programme (aka POP) with Relationships Australia or Foundations Child & Family Support Ltd within fourteen (14) days of these Orders and each party shall attend to completion such programme and each party shall thereafter provide to the other party, a copy of their respective certificate of completion.
22.The ICL is discharged.
As can be seen, an order is sought by the Independent Children's Lawyer and each of the fathers, in respect of Parental Responsibility which would see each of the fathers having “sole parental responsibility” upon specified “conditions”.
The case information filed by the mother on 19 February 2010 contains a number of orders in respect of C pertaining to two alternatives, the first being “If the father relocates to [H] and if the Court determines that a shared care arrangement be made”. The alternative is “In the event that the Court determines that the child live with the respondent father”. Central proposals focus upon an order that C live with the mother.
The orders sought by the mother in respect of S also centre on a proposal that he live with the mother. Those orders contain an alternative “if the Court determines that a shared care arrangement be made”. The “shared care” alternative in respect of each of the children is that they live in alternate weeks with the mother and their respective fathers. In the event that the Court orders that each of the children live with the mother or their father, what might be described as alternate weekend and half holiday time with the other parent is proposed in each case.
Noting those alternatives, I set out below the terms of the orders sought centrally by the mother, as I have said, centred upon the children living with her.
1.That the child [S] born on […] December 2005 live with the Respondent mother.
2.That the Mother and Father have equal shared parental responsibility for the decisions relating to the child.
3.That the child spend time and communicate with the father at all times as agreed between the parties but at least the following:
(a)Each alternate weekend from after school Friday until 6.00pm Sunday.
(b)For the first half of each Queensland gazetted school holidays in 2010 and in each even numbered year thereafter and for the second half of each Queensland gazetted school holidays in 2011 and in each odd numbered year thereafter.
(c)If Father’s Day falls on a day when the child would otherwise be spending time with the Mother then the Father shall spend time with the child on such day from 9.00am until 6.00pm.
(d)For Christmas 2010 and in all even numbered years thereafter from 9.00am Christmas Eve until 1.00pm Christmas Day.
(e)For Christmas 2011 and in all odd numbered years thereafter from 1.00pm Christmas Day until 6.00pm Boxing Day.
(f)On the child’s birthday each year and if the child is otherwise spending time with the mother for a period of 4 hours to be agreed between the parties and if no agreement can be reached from 9.00am until 1.00pm.
(g)By telephone at all reasonable times.
4.That the child spend time and communicate with the mother at all times as agreed between the parties but at least the following:
(a)For the second half of each Queensland gazetted holidays in 2010 and each even numbered year thereafter and for the first half of each Queensland gazetted school holidays in 2011 and in each odd numbered year thereafter.
(b)If Mother’s Day falls on a day when the child would otherwise be spending time with the father, then the mother shall spend time with the child on such day from 9.00am until 6.00pm.
(c)For Christmas 2010 and in all even numbered years thereafter from 1.00pm Christmas Day until 6.00pm Boxing Day.
(d)For Christmas 2011 and in all odd numbered years thereafter from 9.00am Christmas Eve until 1.00pm Christmas Day.
(e)On the child’s birthday each year and if the child is otherwise spending time with the father for a period of 4 hours to be agreed between the parties and if no agreement can be reached from 9.00am until 1.00pm.
(f)By telephone at all reasonable times.
5.The child be at liberty to telephone his parents at all reasonable times.
6.That until the child commences attending school the father is to collect the child from the maternal grandmother’s home at the commencement of his time to spend with the child and that the mother collect the child from the father’s house at the conclusion of the time the father is to spend with the child.
7.That when the child commences attending school and during the school term the father shall collect the child from school at the commencement of him spending time with the child and the mother shall collect the child from the father’s home at the conclusion of the father’s time spent time with the child. During school holidays the father shall collect the child from the maternal grandmother’s house at the commencement of his time spent with the child and the mother shall collect the child from the father’s residence at the conclusion of the father’s time spent with the child.
8.That the Mother and Father shall keep each other informed of their contact telephone number and addresses and will advise each other within 48 hours when there is a change to such details.
9.That both parties shall advise each other as soon as practical of any emergency, serious illness, accident or hospitalisation involving the child following such an event, including the name and contact details of the treating doctor and/or hospital.
10.That the Mother and Father shall not denigrate, abuse or be violent towards each other or the child in the presence of and/or hearing of the child at any time and shall remove the child from the presence of a third party who is denigrating the other parent and/or child in the presence of and/or hearing of the child.
11.This Order shall be sufficient authority for all schools, medical practitioners, general and special dentists and other professional persons dealing with the children to provide to the parents any and all information, including but not limited to school reports, newsletters, school photographs, order forms sought by them and after their request and at their individual expense (if any).
12.That the process to be used for resolving future dispute about the child or the terms or operation of these Orders shall be as follows:
(a)Relationships Australia shall be appointed as Family Dispute Resolution Practitioner.
(b)The parents shall consult with the Family Dispute Resolution Practitioner to assist with resolving any dispute in relation to the children or reaching agreement about changes to be made to the parenting arrangements for the child.
(c)They shall pay the costs of the Family Dispute Resolution Practitioner equally.
(d)In the event that they are unable to, for any reason, to have an appointment with the Family Dispute Resolution Practitioner and cannot agree to an alternate Family Dispute Resolution Practitioner, the mother shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability.
(e)The father shall choose one of the listed practitioners within seven (7) days of receipt of the list.
13.That unless there are some emergent circumstances, before an Application is made to a Court for a variation of these Orders to take into account the changing needs of the child, each party is to take the steps referred to in the preceding paragraph of these Orders.
It can be seen that there is considerable divergence in the orders sought in relation to parental responsibility. The fathers and Independent Children’s lawyer contend for a “sole” parental responsibility order with certain conditions as to a constrained consultation process and the mother seeks an order for equal shared parental responsibility with each father for each respective child.
What Principles are Applicable?
In a recent decision, known as Cowley & Mendoza [2010] FamCA 597 I attempted to set out my understanding of the principles contained in MRR & GR (2010) 263 ALR 368. That case and Cowley can conveniently be referred to as “relocation cases” with the considerations in the recent High Court case being explicitly applicable. But, the impact of MRR is not restricted to “relocation cases”. Clearly enough, MRR, taken in context with existing case authority impacts on all parenting matters.
As I attempted to set out in Cowley, the decision in MRR, in combination with the legislative requirements (and bearing in mind the Full Court’s decision in Goode v Goode (2006) FLC 93-286), appear to me to require a court contemplating the making of parenting orders to:
·First apply a presumption that it is in the best interests of the subject children for their parents to have equal shared parental responsibility in respect of them;
·Next, make findings as to whether any “family violence” or “abuse”, as each is defined, exists;
·Further or alternatively, then make findings, by reference to s 60CC(3) about such matters pertaining to best interests relevant to the issue of whether parental responsibility should be shared equally;
·Determine, accordingly, whether the presumption of equal shared parental responsibility is, as a result of findings about each (or, perhaps, both) of the above matters, respectively, inapplicable or rebutted or, presumption or not, whether such an order should be made;
·If the presumption is rebutted and such an order should not otherwise be made, make findings about best interests relevant to a determination of what ultimate orders are in the best interests of these particular children in their particular circumstances (s 65D; s 60CA; s 65AA). (As the Full Court put it in Goode, the enquiry about best interests is “at large”);
·If the presumption is not inapplicable or rebutted, or if it be determined that an order for equal shared parental responsibility should in any event be made, the court must (s 65DAA) then proceed to:
oMake findings as to whether the subject children’s best interests are best met by an order for equal time; and
oMake findings as to the matters prescribed in s 65DAA(5); and, as a result
oMake findings about whether an equal time order is reasonably practicable (that is, in the words of the High Court, make “a practical assessment of whether equal time parenting is feasible”); and
oIf it is not, conduct the same process, but this time with findings directed to a consideration of whether a “substantial and significant time” order (as defined – see s 65DAA(3)) should be made;
·If neither an equal time order, nor a substantial and significant time order, should be made, proceed to determine the orders which the earlier findings point to being in the subject children’s best interests (s 65D; s 60CA; s 65AA).
Principles relating to parental responsibility
The parents of children each have, by the fact of parenthood alone, parental responsibility for each of those children (s 61C). That means that each parent has, in respect of each child, “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” (s 61B). That situation is not affected by any change in the nature of the parent’s relationship, for example by them separating or re-marrying (s 61C(2)).
Parental responsibility can, though, be altered by the making of a parenting order by the court but only to the extent that the order confers duties, rights, responsibilities or authority in relation to the particular child or children the subject of the order. However, a parenting order does not per se remove or diminish any aspect of parental responsibility; the order must expressly do so or doing so must be necessary to give effect to the order (s 61D(1) and (2)).
But, when a court is to make a parenting order, it must apply a presumption that it is in the best interests of the subject children for their parents to have “equal shared parental responsibility” for those children. The latter expression is not defined, but reference to s 61B would seem to render a meaning that all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children are to be shared, and shared equally.
The statutory presumption just referred to is rebuttable in circumstances where the court has reasonable grounds to believe that there exists abuse or family violence as defined (s 61DA(2)) or where the court considers that it is in the bests interests of the children for the presumption to be rebutted (s 61DA(4)).
No statutory provision other than s 60CC governs how best interests is to be determined in that context. Section 60CC, it has been noted, is headed “how a court determines what is in a child’s best interests”. It is, then, again called into use in this context.
The ambit of the legislative provisions referred to thus far is narrowed by reference to s 65DAE and the Note to s 65DAC. The latter section makes it clear that sharing parental responsibility (whether equally or not) is not a passive activity; it requires those having shared parental responsibility, or aspects of it, to make joint decisions and to consult and attempt to reach agreement in order to do so. However, the section goes on to provide that consultation is not required unless the decision is about a “major long-term issue” – an expression that is defined.
Section 65DAE and its Note underline the last point by providing that there is no necessity to consult a person who has or shares parental responsibility about decisions that are made in relation to the child during the time that the child is spending with that person, that are not decisions about “major long-term issues”. It is to be noted that the section is made subject to any provision to the contrary in a parenting order (s 65DAE(2)).
“Major long-term issues” is defined in s 4:
major long-term issues, in relation to a child, means issues 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:
i)the child’s education (both current and future);
ii)the child’s religious and cultural upbringing; and
iii)the child’s health
iv)the child’s name;
v)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
Thus, if the presumption of equal shared parental responsibility is not rebutted, then, absent specific provision in the parenting orders, the consultation and genuine effort to reach a decision required by s 65DAC applies, but (subject to specific provision in the Orders) only in respect of “major long-term issues”.
Equally, the application of the presumption will mean that decisions during time spent between parent and child that are not about “major long-term issues”, can be made by the parent exercising the time without the necessity for the consultation and joint effort otherwise required in respect of “major long-term issues”. (s 65DAE(1) and (2)).
The expression “sole parental responsibility” is frequently used without otherwise distinguishing between “major long-term issues” and decisions made during periods of time with the children. Or, it is used in conjunction with expressions used in now-repealed legislation such as, for example, “long-term care, welfare and development”.
An order that simply provides, without more, for one party to have “sole parental responsibility” is, at least arguably, an order making provision contrary to s 65DAE(2) and, arguably, an order expressly providing for the diminution or “taking away” of parental responsibility within the meaning of s 61D(2).
Those matters too, have relevance, as it seems to me, in assessing whether the best interests of children require the rebuttal of the statutory presumption and, if so, the form of the orders that might be made in respect of parental responsibility. In Chappell and Chappell (2008) FLC 93-382, the Full Court said:
75.In order to rebut the presumption it is necessary for the Court to make a finding that it would not be in the best interests of the child for the presumption to be applied. We accept that in determining what is in the child’s best interests the Court must take into account the prescribed matters in ss 60CC(2) and (3), one of which requires the Court to consider whether it would be preferable to make the order least likely to lead to the institution of further proceedings. In our view, it would be an appropriate exercise of discretion in some cases to find that application of the presumption would not be in the child’s best interests because the track record of the parents would suggest a high probability of deadlock, which would inevitably lead to further proceedings. In such cases, however, the process of reasoning required to rebut the presumption would involve findings related to the welfare of the child, rather than findings concerning, for example, the likelihood that schools and hospitals would find it easier to deal with one parent rather than two. [emphasis in original]
76.We can also envisage circumstances in which the Court, in the proper exercise of discretion, might make very specific orders in relation to issues which could be loosely described as relating to the “management” of particular aspects of a child’s welfare. Thus, for example, in the present matter his Honour might appropriately have made an order that the wife have responsibility for making of appointments with the speech therapist, as this has been a point of contention. However, where the Court proposes (as his Honour did in this case), to give one of the parents a form of responsibility for issues as broad as “health” and “education”, we consider this should ordinarily be done by use of the concepts prescribed by the legislation itself.
It is submitted on behalf of each of the fathers that an order for “sole parental responsibility” in the terms proposed, ought be made by reason of the presumption of equal shared parental responsibility, is rendered inapplicable in this case by reason of a parent of each of the children (namely the mother) or “a person who lives with the parent of the child” having engaged in “abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family)” within the meaning of s 61DA(2).
When reference is had to the definition of “abuse” in s 4 of the Act, it is not entirely clear on the evidence before me that s 61DA(2) would necessarily be met. The abuser of E does not live with a parent of the child at the time of this determination. There is no evidence before me that the mother has engaged in “abuse” as defined. In my view, the evidence does not disclose that the mother has “involved the child” in sexual activity within sub-paragraph (b) of the definition of “abuse”.
Counsel for Mr Bannon relied upon the emotional and other abuse by the mother in permitting the abused child (not the subject of these proceedings), and the children, to come into contact with the abuser after a clear disclosure of sexual abuse ultimately leading to the conviction of the grandfather had been made.
I don’t seek to either dispute the general proposition that such behaviour by a parent is “abusive” in the broad sense in which that word might be used as an assessment of children’s best interests, nor do I for one moment suggest, that if established, such behaviour meets even modest standards of parental responsibility and behaviour. That, though, does not mean that it satisfies the definition of “abuse” within the legislation and, in turn, satisfies sub-paragraph (a) of s 61DA(2). In my view, it does not.
Although not specifically addressed in these terms, such behaviour can, though, plainly be directly relevant to the rebuttal of the presumption by reason of best interests (s 61DA(4)).
As earlier outlined, there is but one statutory criterion for the determination of best interests. It seems to me that the matters just referred to can plainly be seen as referrable to, for example, parental capacity, the responsibilities of parenthood in the nature of the relationship of all of the children (including, obviously, E) and the child’s parents and other persons connected with each of them.
I will return to this issue of parental responsibility consequent upon a determination of best interests.
ISSUES AND CONSIDERATIONS
At a mention of this matter, I determined that, given its complexity and the fact that two proceedings were to be heard together, the parties were to file, in dot point form, the findings of fact which they would each respectively contend ought underpin the ultimate findings and orders sought by each of them.
The findings of each of the parties can be seen to centre upon a number of issues which have a direct bearing on the statutory Considerations (s 60CC) informed by the Act’s Objects and Principles (s 60B).
In the “findings of fact” documents just described, the parties make a number of contentions centred upon alleged drug use by the mother and its potential to impact upon her capacity to parent; the alleged exposure by the mother of the children to risk emanating from her reaction to, and attitude towards, her father in the light of disclosure of sexual abuse made in respect of him by E; the difficulties created for the mother and, specifically, her capacity to parent caused by E’s behavioural problems; the responsibilities of parenthood exhibited by each of the parents and, specifically, in and about their attitude towards each other as a co-parent of the respective children; the importance of sibships; the willingness and capacity of each of the parents to promote relationships between the children and their respective co-parents and other significant adults in their lives; the responsibilities of parenthood exhibited generally by each of the parties and, in particular, by reference to the events of December 2008; the children’s attendance at school (in the case of the mother); and the insight of the parents to the benefit of each of the children in having a meaningful relationship with their other parent and siblings.
Those “findings of fact” documents were marked as Exhibit A – not as evidence in the proceedings but rather, as an aide memoir giving light and shadow to the submissions ultimately made on behalf of each of the parties and the Independent Children's Lawyer.
Mr L sets out - in my view accurately and helpfully – the issues underpinning his reports and ultimate assessment. Those issues find clear reflection in the statutory Considerations by reference to which this Court is instructed to determine best interests.
Mr L says in respect of S that the significant issues for the Court to consider in this matter include:
· [the mother’s] mental health and capacity to care for the children
· The need for [S] and his siblings to maintain a significant relationship with one another
· The capacity of each parent to promote [S’s] relationship with the other parent
In respect of C, issues of the mother’s mental health and capacity to care for the children and the need for the siblings to maintain significant relationships is also identified but in addition, Mr L identifies as significant issues:-
· The length of time that C has already been separated from her mother; and
· What efforts have been made by each parent to facilitate the commencement of the visiting schedule outlined in the current orders.
Best Interests Generally
The Act reminds the Court more than once (eg ss 60CA; 65DAA), that findings as to best interests are at the heart of the decision and the court’s task is to arrive at orders which best promote the best interests of these particular young children in their particular circumstances.
That findings as to best interests lie at the heart of every parenting decision is reinforced by the Act providing that those findings are the servant of many masters within the Act, including matters that can be seen as central to Part VII.
Indeed, a central component of the Part – the statutory presumption of equal shared parental responsibility – is, ultimately, governed (in part) by an exception based on findings as to best interests.
So, too, the mandatory consideration of specified periods of time can be seen to be subject to an ultimate consideration of best interests (see the coda to each of the sub-sections of s 65DAA).
Ultimate findings about best interests specific to the case before the court rest on a fact-finding or value-finding exercise performed within a mandatory statutory framework. In particular, the Act prescribes the means by which best interests are to be determined; the heading to s 60CC is “How a court determines what is in a child’s best interests”.
Clearly enough, that section, together with complementary provisions of the Act, including the Part’s Objects and Principles, are each central to the court’s role and the orders made by it.
It is, in my view, important to bear in mind that the Act’s mandatory considerations (s 60CC) are, like their predecessor (s 68F(2)), not objective standards (see, eg Secretary, Department of Health and Community Services v JWB & SMB (1992) 175 CLR 218 at 270-2).
The s 60CC considerations are signposts or touchstones within which the broad enquiry as to best interests must be conducted. That the enquiry remains a broad one is evident from the section itself (s 60CC(3)(m)).
Furthermore, ascertaining best interests by reference to those mandatory signposts, and that broad enquiry, must embrace the fact that: “[i]t is a mistake to think that there is always only one right answer to the question of what the best interests of a child require … [b]est interests are values, not facts” (CDJ & VAJ (1998) 197 CLR 172 at 219).
PARENTAL CAPACITY - PSYCHIATRIC HEALTH; DRUG USE AND OTHER FACTORS
There is little doubt that the events of December 2008 leading to the mother’s hospitalisation constitute a very significant psychiatric episode. The mother has received treatment – principally from a general practitioner – for “depression” or a “mood disorder”.
Doctor V gave helpful (and largely unchallenged) evidence with respect to the mother’s psychiatric health and the ramifications for her, and the children, of what he considered to be a clear diagnosis of bipolar disorder. Dr V said that he had considered the prospect of other diagnoses, in particular schizo-affective disorder, and rejected them and was now completely comfortable with a diagnosis of bipolar disorder.
Bipolar disorder is, by definition, a relapsing condition. It responds well to medication, specifically Lithium, but it is necessary for someone suffering from the condition, to take Lithium as prescribed, effectively for the rest of their lives.
Doctor V was at pains to point out that, with careful monitoring, preferably by a psychiatrist, the condition can be regulated and kept in check. However, the opposite also applies. Doctor V said that there was a “one hundred percent likelihood” that the mother would suffer a recurrence of the hypo-mania associated with the disease, and possibly the depression associated with the disease, in her lifetime if she did not continue to take medication as prescribed. In the latter respect, Dr V emphasised that, because of the toxicity associated with Lithium and the changes which can occur with respect to its use, it is extremely important for the patient not only to be compliant with its use but for that use to be monitored by a psychiatrist.
Doctor V also pointed out that the fact that the mother had established a good therapeutic relationship with her psychiatrist, Dr D and, it appeared, had been compliant with her Lithium treatment was positive prognostically. Moreover, Dr V commented that the progress made by the mother in the last 12 months was, to use his words, “excellent”.
But, Dr V placed a caveat on that: by reason of the nature of the disease, there is always the potential for non-compliance. Putting his evidence in my words, people with bipolar disorder get addicted to the buzz – that is, they like the “high” that the hypomania produces and they miss it when it is controlled by Lithium.
It is submitted by Ms Howe, counsel for the mother, that there had been only one manic episode and that the risk of relapse of the condition ought be seen accordingly. I am not, however, convinced that that is consistent with the thrust of Dr V’s evidence. He said that the incident of December 2008 was plainly a hypomanic episode entirely consistent with the disease. His diagnostic suspicion, was that other historical incidents spoken about in the material viewed by him, were in fact “breakouts” of the mania but were not as florid as the December 2008 incident.
In that respect, Mr L, the Family Consultant, spoke of an incident in the waiting room during the interviews for his most recent report. The mother, he said, was singing. He said it was clearly audible and he remarked upon it as highly unusual behaviour. Doctor V thought it highly likely that the singing incident was a manifestation of the mania component of the disease breaking through the surface, as it were. He suggested that the Lithium kept the condition under control and, in fact, it was the Lithium that prevented the singing incident just described from descending into something more florid.
In my view, Dr V’s evidence can be summarised in this way. The mother is taking medication as prescribed and, it appears, has been compliant. This is the single biggest factor in keeping her illness – which is a serious illness – under control. In a similar vein, she has established a therapeutic relationship with a psychiatrist. She has made “excellent” progress in the last 12 months. The combination of those factors is a good diagnostic indicator for her future progress. However, one should be cautious about the nature of the illness and therefore, guardedly optimistic about the future.
Significantly, however, Dr V was of the view that, if the mother continued to be compliant with her medication, and continued to have that medication monitored regularly by an expert psychiatrist, then her mental illness should not, of itself, deleteriously affect her capacity to parent (although, as Dr V pointed out, that is not to say that personality and other factors would not impact upon that).
Specifically Dr V stated in the report annexed to his affidavit filed 4 December 2009:
…if [the mother’s] illness responds to Lithium and importantly if she were to adhere to the treatment requirements and there is adequate psychiatric monitoring of the situation, her Bipolar Disorder of itself is entirely compatible with normal functioning including being an effective parent.
It seems to me that the mother can be seen to have been under extraordinary stress, initially occasioned by the removal of the children from her and, subsequently, by attempting to deal with that fact and at the same time dealing with a serious and debilitating mental illness which had manifested itself. Thereafter, the mother has dealt with that mental illness in the context of being embroiled in parenting litigation which is, for all persons, extremely stressful. Her adherence to the required treatment and her continuing efforts at maintaining her mental health deserve praise.
I find that her mental illness is not, of itself, such as to deprive her of such capacities as a parent that would disqualify her from having the children live with her or spend significant periods of time with her. Put another way, the mother’s mental illness does not, of itself, present an unacceptable risk to the children if in her care.
Drug Use And Risk
Each of the fathers in this case asserts that the mother may have used methamphetamines. It is of considerable significance to note that neither father has witnessed the use of such drugs by the mother either during the course of their respective relationships or since. Neither do they rely upon any admissions made by the mother, or the evidence of others who have allegedly seen the mother using drugs of that type.
It seems that the sole basis for making that assertion, (which they make in concert), is a reference to methamphetamines in subpoenaed material seen by them. This can be seen reflected in cross examination of the mother which had, as its basis, documents produced by Queensland Ambulance Service at the time that the mother was transported to hospital in December 2008. It should be borne in mind that Doctor V is of the view that, at that time, the mother was manifesting florid signs of hypomania associated with bipolar disorder.
The assertions put to the mother are, in any event, based upon an, at best, ambivalent documentary record. The document reveals as part of a stated “Final Assessment” the following: “anxiety; ?PT on speed; hypoventilation”. The document otherwise refers to “anxiety” (in one case with three arrows indicating that it was of a very significant level). Under a heading “past history”, and a sub-heading “pre-exist”, the words “anxiety; drug abuse amphetamine” are recorded. The basis for the recording of “amphetamine” or indeed, “drug abuse” is not given. No other part of the document records information being received from the mother to that effect.
I find it unsurprising that an Ambulance Officer might query the use of amphetamine given the other signs recorded by him or her in the document. Given the context, it is an extremely flimsy basis on which to base a finding that the mother has been (or was then) a user of amphetamines. She emphatically denies the use of that type of drug whilst admitting the use of cannabis. I believe her.
The s 69ZW report indicates that “apart from her highly agitated state [on 28 December 2008] there were no other signs of drug use”. The document records that “the mother told Queensland Ambulance Service that she was on ‘meth’.” The basis for that assertion in the s 69ZW report is by no means clear. Indeed, inferentially at least, it appears to be based on a conversation by a Departmental officer with a police officer who provided information that “no disclosures were made to police about drug use. However, the mother told Queensland Ambulance Service that she was on meth”. I strongly suspect that this hearsay upon hearsay statement was itself based upon a police officer’s rendering of the Queensland Ambulance Service document to which I have just referred. In any event, no other basis exists on the evidence for that statement.
Mr L records the mother telling him in interviews for his first report that “she has used marijuana and alcohol in the past, and had done so to excess when [E] made her disclosure; however, she strongly asserted that she does not ‘touch drink or drugs now’.” In that same conversation, the mother both denied the use of methamphetamines and denied telling the Ambulance Officer that she used to. Dr V records in his report:
Regarding substance abuse, she states that after she learned about her sexual abuse, she began to use cannabis ‘quite a lot’. She denies any use of amphetamines.
Ultimately, Mr Middleton, counsel for Mr Bannon conceded that the evidence was insufficient upon which to base a finding of the use of that drug.
When cross examined by counsel for Mr Bannon, the mother said, “I’ve come a long way” in reference to her current mental state and capacity to cope generally. I consider that this statement is likely to be accurate. As Doctor V said, it is highly likely the mother has suffered from her illness for a considerable period of time and that it has manifested itself in a number of ways but which was not, at the time, seen as referrable to the particular disorder.
Furthermore, the mother has herself had a compromised upbringing. If all parents parent empathically, i.e. that they parent as they themselves were parented, the mother has significant difficulties to overcome and, it might be added, difficulties that neither father (at least on the evidence before me) has had to overcome.
The evidence points, in my view, to the mother having an impaired capacity to parent historically that is likely to have resulted from a combination of factors, not the least of which is a long-undiagnosed significant mental illness (bipolar disorder) together with herself being the product of significantly compromised parenting.
Mr L records in his report dated 21 October 2009 in the Bannon matter:
97. [The mother] advised that [E’s] disclosure had caused her to bring into consciousness repressed memories of her own abuse when she was a child and this had added to her feeling of being overwhelmed. Various subpoenaed documents refer to [the mother] not coping at this stage and having been “living in a mess” and drinking to excess. [The mother] apparently recorded her inability to cope and made arrangements at that time for the children to be cared for by maternal family members, principally her sister, …
Material otherwise in evidence before me (principally, the documents tendered from the Department of Communities (Child Safety Services)) indicate that the mother was struggling to cope as a parent during 2008, including the period prior to E’s disclosure. C had missed a substantial amount of school in her first year and Mr L notes in his report a Departmental case note of 14 October 2008 which refers to a telephone discussion with the Principal of C’s school who advised that, “[C] seems like a different girl [since being placed with her aunt], she now has consistently got lunches, she is happy and she is more outgoing”.
A particularly troubling aspect of the mother’s capacity to parent during 2008 is the assertion that she exposed the children to the risk of potential sexual harm by leaving them unsupervised with her father who, it is established, perpetrated sexual abuse on E.
Doctor V refers in his report filed 1 December 2009 to a rape suffered by the mother at the age of 12. He reports the mother saying that she had “always had memories of the event” but it was “at the back of her mind”. She told Dr V that she only revealed what had happened in 2005 “when she told [Mr Bannon]. He then told my mother without asking me”. She went on to tell Dr V that “They’re only bits and pieces that I remember”. She says she later found out that the men who raped her were “adults” and “known paedophiles”.
Mr Bannon deposed in his affidavit material that the mother had, during their relationship, disclosed to him that the sexual assault of her at age 12 was at the hands of one man. Mr Bannon made an assumption that the offender may have been the maternal grandfather. The mother is recorded by Dr V as vehemently denying that it was her father who had engaged in any form of sexual impropriety with her when she was a child – a position that was maintained by the mother throughout cross-examination. The mother says that the persons who raped her were known to her father only casually and had no connection with him. She denies any form of sexual impropriety at the hands of her father.
Counsel for the Independent Children’s Lawyer put to the mother that, shortly after the disclosure by E, the children were nevertheless placed in the care of the grandfather. The mother agreed that the grandfather did end up having the care of the children for a short period but maintained that, due to her state of shock at the time, she could not recall how the children were provided to the grandfather. It is ultimately accepted by all parties that the children were very shortly thereafter taken into the care of the mother’s sister who looked after them for some weeks.
While the mother’s evidence of events after E’s disclosure is in many respects unclear, what is clear from the evidence is that, in 2008, the mother was struggling with the effects of an as yet undiagnosed mental health issue and, following the disclosures by E late in that year, the mother’s mental stability declined dramatically. The evidence also reveals that the mother severed all ties with the maternal grandfather in late 2008 and deposes in oral evidence to having had no contact with her father since that time. The mother was firm in stating her intention to ensure that she has no contact with her father in to the future.
I assess the mother’s presentation in the witness box as being focussed upon protecting her children and I accept that she understands the risk posed by her father and has a firm intention to keep the grandfather out of the children’s lives. I am not satisfied that the mother presents a risk of inadequately protecting the children from the potential for harm from the grandfather.
Primary Considerations
I turn then to the primary s 60CC considerations:
a)The benefit to the children of having a meaningful relationship with both parents; and
b)The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Protection from Harm
Clearly enough the matters already set out find reflection in this Primary Consideration. As with many matters that come before this Court, there is an assertion that the two primary considerations are in direct conflict. The fathers contend that the promotion of a meaningful relationship between the children and mother squarely places the children in need of protection from harm – emotional, psychological and possibly physical. As I have already set out, I do not consider that the mother presents an unacceptable risk to the children as asserted by the fathers; either by way of her mental health issues, the asserted drug use, or risk of placing the children in harm’s way with the grandfather.
The conclusion as to the mother’s mental health issues is, clearly enough, subject to the mother persisting in complying with her medication regime and continuing to attend her psychiatrist as required. Taking into account the evidence of Dr V and my own assessment of the mother throughout the proceedings, I am tolerably satisfied that the mother is conscious of the importance of maintaining her psychiatric care, has complied with the regimes advised so far and is likely to continue to do so into the future.
Benefit from a Meaningful Relationship
The evidence of the family consultant supports the finding that the children are attached to both their parents – understandably, the older C was observed to have displayed a firmer attachment than the younger, and reportedly more emotionally sensitive child, S. This attachment has to be considered in light of the lengthy duration of separation between the mother and the children (particularly C).
In relation to C, Mr L unequivocally states in his report filed 29 February 2010:
…I have no hesitation in saying that [C] has a strong, positive relationship with her father and a significant bond with her paternal grandparents…
It was also evident that she has a strong bond with her mother and I was in no doubt that she was missing being able to spend time with her mother.
Noting that, due to S’s young age, he was not interviewed for the most recent Pishke/Rupp family report (filed 23 February 2010), Mr L says:
From the previous observations of [S] with his parents resulting from family report interviews and subsequent “re-introduction” of [S] to his mother [a process ordered to occur given the lapse in time following the events of December 2008], I am of the opinion that [S] has a strong and significant attachment to each of his parents.
I find that both C and S will benefit from a meaningful relationship with both of their parents. These as yet very young children want, and will benefit from, having the input of both their parents, experiencing and learning from the strengths and weaknesses of both.
This is not a situation like that contemplated by Nygh J in Cotton & Cotton (1983) FLC 91-330 at 78,252, where the value and benefit arising from a potential relationship is uncertain. The evidence is unequivocal that the children are bonded to both parents and would benefit from significant involvement of both parents in their lives. To borrow the words of Nygh J “there is a chance of a meaningful relationship which is beneficial to the child[ren]’ and both of their parents have ‘something to offer’ these children”.
I am satisfied that the concerns arising in relation to parental deficiencies – which will be more fully explained below – can be ameliorated by structured orders which ensure these children know, and can be cared for, by both their father and their mother.
Additional Considerations
Willingness to facilitate and encourage an ongoing relationship with the other parent
The current situation sees the children living with their respective fathers. This occurred as a direct result of the father’s actions in unilaterally removing the children from the mother’s residence.
C has not spent any time with the mother since December 2008. She has had some sporadic telephone communication with the mother and it is accepted that there have been issues with this form of communication.
Mr L notes the duration of time since C has seen the mother and records in his report filed 23 February 2010:
[The mother] acknowledged that she had been tardy in arranging Contact Centre intake procedures as per the current Orders. She stated that the reasons for this were “car not reliable” and “money problems”.
and in his earlier report addressing Mr Bannon and the mother dated 20 October 2009, Mr L records Mr Bannon as saying:
…that he “could have made it easier…I admit that (for [the mother] to have spent some time with [C] since December)” however he believes that [the mother] should “make some effort”.
S has been spending time with the mother since August 2009 on each Wednesday and alternate weekends. Clearly enough Mr Pishke has been meeting the requirements to allow this time to occur, but there remains some concern as to his commitment to the mother-child relationship. An example is his failure to arrange time, or even acknowledge that time ought occur, between the mother and S when he turned three years old.
Mr L records in his report filed 23 February 2010 that Mr Pishke “expresses that he considers it important for [S] to have a significant relationship with [the mother] however he is concerned that it is not at the cost of [S’s] safety and stability”.
The report writer goes on to record under the heading “Evaluation”:
It is clear from talking with the parents in this matter that whilst [S] has been spending time with his mother…there has been no improvement in the relationship or communication between the parents and as a result [S] still has to negotiate a bridge between his parents that is characterized by mistrust and hostility.
…
…I am of the opinion that just below the surface, neither parent is particularly supportive of [S’s] relationship with the other parent and are unlikely to place much value on this unless required to by outside imperative…
Clearly enough, concern centres on the past behaviours of both fathers and the resultant situation that sees these two young children having had minimal interaction with their mother since December 2008.
While aspects of the fathers’ presentation and material suggest that they minimise the impact on the children of the removal of their mother, I assess that both fathers understand that they must encourage and facilitate the mother-child relationship into the future. I am satisfied that, whatever parental conflict or issues may be present, the parents in this matter will, if ordered, do what is required of them to ensure these children can benefit from their right to know and be cared for by both their mother and father.
The capacity of the parents to provide for the needs – as they are broadly defined in the Act – of the children
Submissions in respect of this issue were largely made by the fathers and directed to the mother’s mental health and alleged drug issues. As earlier discussed, I am not satisfied that a finding can, or ought, be made that the mother lacks any capacity to provide for the needs of the children.
However, in light of the evidence already set out, particularly that of Dr V, I find that, due to the mother’s mental health concerns, and her personality vulnerabilities, it is not in the best interests of C and S for the mother to have the responsibility, and associated stress, of caring for all three siblings for lengthy periods of time.
Mr L raised concerns that the mother “would have difficulty with the responsibility of parenting all three of her children” in the Pishke/Rupp report filed 23 February 2010. I accept this opinion. It complies with my own evaluation of the mother from the material and her presentation in the proceedings.
The evidence does not, however, support a finding that the mother ought be precluded from playing a significant role in the lives of C and S.
No concern was raised as to Mr Bannon’s capacity to provide for the needs of C; indeed Mr L notes that C is “thriving” in the father’s environment. The father has taken time off work to commit to a full-time carer’s role and to be fully involved in C’s schooling. The mother agreed in oral evidence that C is, and has been, receiving a good level of care living with her father and she could not disagree that C is very well settled with her father. The mother did not raise concerns as to Mr Bannon’s parental capacity; her concerns centred on Mr Bannon’s failure to properly foster a mother-child relationship.
The mother said in oral evidence that she has concerns about the level of care being provided by Mr Pishke to S. These concerns as to capacity were not reflected in the expert opinion. Again, the major issue raised by the mother in relation to Mr Pishke was, in effect, not ‘capacity’ but the willingness and ability to foster a mother-child relationship.
I am satisfied that the fathers are capable of providing for the children’s needs. I am satisfied that indications are that the day to day care of the children has improved under the fathers’ respective care.
The likely effect of change on the children
For C and S, achieving a meaningful relationship with both parents means a change to the situation that has persisted since December 2008 so as to enable the mother-child relationships to have the opportunity to fully develop and flourish.
The mother acknowledged in oral evidence that her proposal that both children return to live with her presents a significant change for them. Since December 2008 the children have not lived with the mother, and C has spent no time with the mother. The evidence of Mr L records that the children have settled in to living with their respective fathers and, in the case of C, has been recorded as displaying particular improvement.
The effect of change was an issue highlighted by the Independent Children’s Lawyer and fathers, especially for C. The proposal to, in essence, allow a re-introduction of the mother to C without S also being present acknowledges that the children face a considerable change to the parenting and living arrangements that have persisted for over 18 months.
A gradual process of re-introducing the children to the mother – and indeed allowing the mother to adjust to having all children in her care, is a sensible approach in this case. These young children have already been through drastic, sudden upheaval once in their lives. It is in their best interests that the changes proposed in the current situation are approached incrementally and conservatively.
The extent to which the parents have been involved and facilitated – or failed to facilitate – time and communication with the children
This issue is largely taken up in consideration of the Considerations already discussed. But, I will stress here, and underline for each of the fathers, that isolating the children from the mother since the children’s removal in December 2008 casts a long shadow over the father’s on-going commitment to a maternal relationship. The relationship needs to be fostered and developed.
The fact that, for this mother, her obstacles and challenges manifested in a dramatic way, and are now subject to “a label”, ought not be seen by the fathers as a form of justification for the removal of the mother from the children’s lives. The children want and need a loving relationship with both their parents.
As earlier referred to, I have some concern that the fathers fail to grasp the magnitude of their actions in removing the children as they did. However, having considered all of the material, and observed all of the the parties over a three-day trial, I am satisfied that these fathers understand that C and S deserve, and will benefit from, an on-going meaningful relationship with their mother.
I concur with the observations of Mr L (recorded in relation to Mr Pishke but, in my view, applicable to both fathers) that an “outside imperative” by way of structured court orders is important in ensuring the fathers promote the maternal relationship.
Other relevant facts or circumstances
C and S are currently living separately from their sister E. Not only is it important that C and S recommence a relationship with their mother but, equally, that they reconnect to the three-child sibship.
Mr L records in each of his reports filed 23 February 2010 that there are some concerns about re-introducing the children to their sister E, who has exhibited some difficult behaviours following the abuse she has suffered, and who the children have also spent very minimal time with in the past 18 months. He says, for example:
[E]…is likely to have her own needs to re-bond with [C].
and
[C] had previously expressed concern about [E’s] dominating behaviour towards her and this will need to be considered…particularly given the relatively recent emotional turmoil [E] has endured.
Mr Pishke raised concerns that E may have been acting in a sexualised manner towards S about which Mr L records:
…I cannot conclude that [E] is acting in a sexualized manner towards [S]….However what I have observed is that [E] has the capacity to act in a clingy/egocentric manner…that could at times make it difficult for [S] to separate from her.
…
…I do caution however that whilst it is important for [S] to be interacting with his older sister [E], it is possible that if [E] is still experiencing distress and resultant behavioural challenges …then her behaviour may impact negatively on [S].
Re-introducing two young children to their older sibling who, in large part, they have not seen for 18 months carries with it the need to be mindful of each child’s individual needs. That is all the more so because E has been through the emotional turmoil associated with the disgusting conduct perpetrated on her.
I consider it likely that there will be some behavioural and emotional concerns displayed by the children in the re-introduction process. E has essentially been an only child for the past 18 months and will now be called upon to ‘share’ her mother. C and S will be re-acquainting themselves with their mother but also re-defining their sibling bonds. All of these issues point to the need for a sensitive incremental approach to any such re-introduction.
Conclusions as to Parental Responsibility
The fathers contend that the presumption of equal shared parental responsibility is rebutted in this matter due to “abuse” or “family violence” that the mother has engaged in or, allowed to occur. As earlier found, I am not satisfied that the grandfather’s abuse of E and the flow-on repercussions and effects to C and S fall within s 61DA(2) so as to render the presumption inapplicable.
Pursuant to s 61DA(4) I must consider whether the presumption ought be rebutted in the children’s best interests. For all the reasons stated I find that it is in these children’s best interests to have significant and meaningful input into their lives by each of their parents. This input ought involve and include input by way of consultation as to decision making for long term issues.
I note that the parental responsibility orders proposed by the Independent Children’s Lawyer, and taken up by the fathers, are very similar to orders made by me in a matter known as Runcorn & Raine [2008] FamCA 1021. As earlier referred to, those orders provide for sole parental responsibility with some ‘conditions’ as to consultation.
I am not satisfied that such an order is required in this matter. The parents here have, clearly enough, been involved in significant dispute and disagreement. However I am satisfied that they each love and want the best for their children, and are capable of doing what is needed to achieve that, including consulting about “major long-term issues” for C and S.
I will accordingly order that the parents have equal shared parental responsibility for the children’s “major long–term issues”.
Conclusions as to Co-Parenting Arrangements
Having determined that the presumption for equal shared parental responsibility is not rebutted I must turn to consider whether an equal time or substantial and significant time order is in these children’s best interests.
Weighing all of the considerations earlier referred to, I consider that the children’s respective best interests are met by an order that sees their current care arrangements predominantly continuing, with the conservative and incremental introduction of time with their mother and sibling.
These children require the stability and predictability of living predominantly with their respective fathers. Their best interests call for a controlled re-introduction to their mother and older sister and, thereafter, spending regular, but not lengthy periods of time with them.
It will be clear, then, that I do not consider an equal-time order to be in the children’s respective best interests.
I consider that allowing C to spend initial time with the mother – and E – without S also being present, is a sensible approach to managing the reintroduction.
I will order that such an introduction occur for a few hours each Saturday for four consecutive weeks. This will have the consequence of shortening S’s time with the mother for these few weeks but I am satisfied that this small intrusion upon S’s time with the mother is necessary to best facilitate the mother-child relationships.
I will order that, following the four-week ‘introduction’ period, the children C and S shall both spend time with the mother each alternate weekend.
The mother ought also have the ability to communicate with the children via phone and be kept appraised of all issues in relation to the children’s schooling, extra curricular activities and the like.
The orders as proposed will include time on weekends and holidays but not on “days that do not fall on weekends and holidays” (s 65DAA(3)). The orders do not, then, provide for “substantial and significant time”. I have considered whether, in the children’s best interests, they should. I have decided they should not. The need for stability, continuity of care and the re-introduction of relationships point, in the particular circumstances of this case, to such order not being in the children’s respective bests interests.
Reasonable Practicability
As earlier referred to, the High Court has made it clear in MRR that s 65DAA is the source of power to make parenting orders where parents are to share equally parental responsibility.
As that section requires, I have considered whether, respectively, orders for equal time or substantial and significant time are in these children’s best interests. I have concluded in each case that they are not.
It is necessary for me to consider, additionally (and sequentially), whether each such type of order is “reasonably practicable” having regard to the mandatory considerations enumerated in s 65DAA(5).
It will be clear from the matters earlier discussed and the findings there made, that I consider the parties’ respective capacities to implement arrangements of the type contemplated is impaired and, so too, their capacity to communicate. Notwithstanding these reservations (and my guarded optimism) about each, I do not consider those capacities are so impaired as to render “as a matter of practical reality” orders of the contemplated types not reasonably practicable.
However, as I have, in each case, reached the firm conclusion that neither such type of order is in the children’s best interests, I will not make either such order.
Additional Orders
It is clear that the fathers have, and will continue to, co-operate to maintain the relationship between S and C. I will order in accordance with their proposed orders. This will mean that C and S shall spend time together each alternate weekend with their mother and E and for the additional time as facilitated between the fathers. Such time will allow the children to maintain and develop the important sibling relationship.
I will also order along the lines of the fathers’ proposals that during such times that the children are spending block holiday periods with the mother the fathers be at liberty to speak with the children on the phone at least once per week.
I will order in accordance with the Independent Children’s Lawyer’s proposed orders in relation to the provision of transcript and family report evidence from these proceedings to the mother’s treating psychiatrist.
I will not make the order proposed by the fathers and Independent Children’s Lawyer that the mother continue to undertake specialised psychiatric care as required. This is a matter that – whilst clearly very important to the children’s best interests – is ultimately an issue for the mother. It ought be clear from these Reasons that ongoing compliance with any suggested treatment regime and attendance upon a treating psychiatrist are each extremely important for the mother and her ongoing ability to best care for the children.
But, attendance and compliance as required, is up to the mother. It is she who must herself realise the importance of, and embrace, treatment and advice.
I will, however, order that the mother provide the fathers with advice from her treating professional as to the state of her mental health and ability to care for the children, not more frequently than on a twice yearly basis. I am satisfied that this requirement balances the need to protect the children with the mother’s right to live her life without undue intrusion.
I make the orders as set out at the commencement of these reasons.
I certify that the preceding one hundred and eighty-six (186) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.
Associate:
Date: 26 July 2010
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