Rappel and Rappel

FAMILY COURT OF AUSTRALIA

RAPPEL & RAPPEL

[2010] FamCA 280

FAMILY LAW – CHILDREN – With whom a child lives – Conflictual separation exacerbated by personal tragedy – Post-separation concerns compounded by the parties’ grief reactions – Considerations of violence, substance abuse and willingness to facilitate a relationship with the other parent – Mother to have parental responsibility in relation to counselling and therapeutic intervention for the child – Consideration of decision in MRR v GR – Child’s best interests requires equal amounts of time with each parent

Evidence Act 1995 (Cth) s 128
Family Law Act 1975 (Cth) ss 60CC, 65D, 65DAA, 65DAC
Family Law Rules 2004 (Cth)

Chappell & Chappell (2008) FLC 93-382
Cotton & Cotton (1983) FLC 91-330
Goode & Goode(2006) FLC 93-286
Lansa & Clovelly [2010] FamCA 80
MRR v GR [2010] HCA 4
Weiss & Arnold [2010] FamCA 270

APPLICANT:

Ms Rappel

RESPONDENT:

Mr Rappel

INDEPENDENT CHILDREN’S LAWYER:

Mr Lang

FILE NUMBER:

BRC

9788

2008

DATE DELIVERED:

16 April 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

28 – 29 January 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr McGregor

SOLICITOR FOR THE APPLICANT:

Gill & Lane

COUNSEL FOR THE RESPONDENT:

Mr Crisp

SOLICITOR FOR THE RESPONDENT:

Burchill & Horsey Lawyers

COUNSEL FOR THE

INDEPENDENT CHILDREN'S LAWYER:

Mr Linklater-Steele

SOLICITOR FOR THE
INDEPENDENT CHILDREN'S LAWYER:

Legal Aid Queensland

Orders

Parental Responsibility

The presumption of equal shared parental responsibility is rebutted by reason of the best interests of the child the subject of these proceedings, K born … May 2005.
The mother of K shall advise the father of, and seek his agreement to, all such psychiatric or psychological reports, consultations, treatment, counselling or therapy as the mother might consider appropriate for K from time to time.
In the event that no agreement is reached about any decision, or any aspect of any decision, referred to in paragraph (2) of these orders, the mother shall be solely responsible for making any and all such decisions as are considered by her necessary in respect of that aspect of parental responsibility.
In the event that the mother arrives solely at any decision contemplated by paragraph (3) of these Orders she shall:
(a)Notify the father in writing of the name and professional address of any practitioner consulted by K or to whom she might be referred;
(b)Notify the father of the date or dates of any such consultation or consultations as might take place not less than seven days prior to such consultation;
(c)Provide an unrestricted authority to each and every such practitioner to whom K is referred or may consult for that practitioner to discuss any and all aspects of the treatment or consultations engaged in by K with any such practitioner.
These orders shall operate as an unrestricted authority to each and every practitioner to whom K is referred or may consult pursuant to the mother’s decision, for that practitioner to discuss with the father any and all aspects of the treatment or consultations engaged in by K with any such practitioner.
Save as is otherwise agreed between the parties in writing, K shall attend the pre-school at which she is currently enrolled and the school attached to that pre-school or, if none, the school situated geographically closest to her current pre-school.
Save as prescribed in the preceding paragraphs of these Orders:
(a)the parents shall share equally “parental responsibility” in respect of “major long-term issues” (as each such expression is defined in the Family Law Act 1975 (Cth));
(b)The parents 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”.

Agreement as to Co-Parenting Time and Communication

The children 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 any such agreement, in accordance with the succeeding provisions of these orders

Co-Parenting Time

During pre-school or school-term time:
(a)K shall live with her mother from the commencement of pre-school or school as the case may be (or from 9.00am if not a pre-school or school day) on Monday 26^th April 2010 until the same time on Monday 3 May 2010 and between those times on those days in each alternate week thereafter with all public holidays or pupil-free days lying where they fall;
(b)K shall live with her father from the commencement of pre-school or school as the case may be (or from 9.00am if not a pre-school or school day) on Monday 3 May 2010 until the same time on Monday 10 May 2010 and between those times on those days in each alternate week thereafter with all public holidays or pupil-free days lying where they fall;
(c)As the relevant days may fall, K shall spend time on her birthday and the birthday of each of her parents from after school until 7.30pm with the parent not otherwise caring for her in accordance with paragraphs 9(a) and 9(b) of these Orders,.
During non-term time:
(a)The time otherwise provided for in paragraphs 9(a) and 9(b) shall be suspended and in lieu, K shall live with each of her parents for one-half of all gazetted school holiday periods with, thereafter, time resuming in accordance with paragraphs 9(a) and 9(b) in the sequence in which it would have occurred but for the intervention of each of those school holiday periods.
(b)The mother shall have the first half of all holidays in 2010 and each alternate year thereafter and the father shall have the second half of all holidays in 2010 and each alternate year thereafter.
(c)As the relevant days may fall, K shall spend time on her birthday and the birthday of each of her parents from 9.00am until 3.00pm with the parent not otherwise caring for her in accordance with the preceding sub-paragraph of these Orders.
K shall spend time with her mother on Mother’s Day between 9.00 and 3.00pm if she is not otherwise in the care of her mother in accordance with the preceding paragraphs of these Orders.
K shall spend time with her father on Father’s Day between 9.00 and 3.00pm if she is not otherwise in the care of her father in accordance with the preceding paragraphs of these Orders.
Notwithstanding the provisions of any preceding paragraph of these Orders, K shall spend:
(a)From 5.00pm 24.12.10 until 5.00pm on 25.12.10 with her father and between those times on those days in each alternative year thereafter;
(b)From 5.00pm 25.12.10 until 5.00pm 26.12.10 with her mother and between those times on those days each alternate year thereafter.
(c)From 5.00pm 24.12.11 until 5.00pm on 25.12.11 with her mother and between those times on those days in each alternative year thereafter;
(d)From 5.00pm 25.12.11 until 5.00pm 26.12.11 with her father and between those times on those days each alternate year thereafter

Changeovers for Periods of Time

Changeover in respect of all periods of time shall be effected:
(a)during term time, by delivery or collection of K from her pre-school or school as the case may be on Mondays;
(b)during holiday time, or on any occasion at all when school is closed, by the parent with whom K has been living immediately prior thereto delivering her to an agreed place situated approximately half way between the parties existing residences and the other parent returning the children to that same place at the conclusion of the period of time.

Communication

The parties shall do all things as might reasonably be necessary to facilitate K communicating with the parent with whom she is not residing at all such reasonable times, and via such means, as K might reasonably request from time to time.
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 K consults;
(b)To speak to, and receive oral or written communication from, any school or other educational institution attended by K;
(c)Make the other parent aware of the times, dates and places of any sporting or extra-curricular activities engaged in by K to permit attendance at, and reasonable participation in, any such activities;
(d)Keep the other parent appraised of their residential address and a telephone contact number;
(e)Notify the other parent should K suffer any medical emergency, serious illness, or other significant issue affecting the child’s health or welfare, whilst in their care.

IT IS FURTHER ORDERED THAT

Dismissal of Other parenting Applications

All extant 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 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 pseudonym Rappel & Rappel is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC9788/2008

MS RAPPEL

Applicant Mother

And

MR RAPPEL

Respondent Father

REASONS FOR JUDGMENT

The issues relevant to the determination of orders that best meet the best interests of K (born in May 2005), the young child the subject of these parenting proceedings, are mired by an appalling tragedy that beset her parents in October 2008. On that date the parties’ younger child L, born in July 2006, died by accident. She died whilst in the care of her father.
The already difficult emotional circumstances surrounding the breakdown of the parties’ approximately four-year relationship, which occurred about 15 months previously in mid-2007, were, unsurprisingly, exacerbated by that tragedy.
The mother blames the father for L’s death. That attitude is amplified by her belief that the father was not awake in order to prevent the death by reason of having consumed marijuana the night before. An investigation by the Department of Families and the police, found no culpability on the part of the father. The mother’s belief persists despite this.
The children had been in the predominant care of the father since the parties separated. Controversy surrounds the circumstances by which that occurred. Conflict between the parents has attended the time that the mother has spent with K which, until orders were made by this Court on 4 November 2008, had occurred, in broad terms, on alternate weekends.
The order provided that K live with her father and spend time with her mother from Friday to Wednesday in each alternate week with changeovers occurring at an approximate halfway point between the party’s respective residences. The parties both live in Brisbane, but are separated by an hour or so of driving time.
Each of the parties contends for an order for equal shared parental responsibility. The parties also each contend for an order that would see K living with them, with the other parent having weekend, holiday and special day time with her.
Mr F, a single expert formerly employed as a Family Consultant by the Brisbane Registry of the Family Court of Australia, prepared a Children’s and Parents Issues Assessment Report for the purposes of the “first day of trial” (as that expression is used in the Family Law Rules 2004) which became Exhibit 1 in these proceedings. Mr F prepared a subsequent report pursuant to an order made by this Court, the report issuing on 2 March 2009 in respect of interviews which took place in February of that year. A single expert consultant psychiatrist, Dr M, was engaged by the Independent Children's Lawyer and Dr M’s report is dated 2 February 2009 and is annexed to an Affidavit by Dr M filed 18 February 2009.
Whilst Dr M thought, 12-months pre-trial, that the “clinical picture is likely to change”, it seems plain to me that the parties remain in a very pronounced state of bereavement. I consider it likely they will remain so for some considerable period of time.
I consider that their attitudes towards each other, and their assessment of the other party’s actions, motives and feelings are each filtered through a cloak of anger and hostility. It is more than likely that their respective, all-encompassing grief fuels much of that.
In the midst of that difficult emotional and psychological landscape, K has also lost a sister. She is yet very young – she is not yet five – and has commenced prep in 2010. Dr M opines:
Little attention appears to have been paid to [K’s] bereavement. I also recommend that she see a child psychiatrist for an initial assessment and possible therapy.
K has not received any such intervention. I accept unreservedly Dr M’s opinion that K too, is in a state of bereavement. I consider it highly likely that she has been damaged emotionally by the separation of her parents when she was but two, and shortly thereafter, the sudden and unexpected loss of her sibling.
While each of the parents attempt, in their own way, to understand and deal with K’s bereavement and ongoing emotional issues resulting from the two major life events just described, I consider that neither of the parents is, currently, able to disentangle their own sadness and emotional fragility from that of their daughter and, as a result, each have considerable difficulty in placing K’s immediate emotional and psychological needs ahead of their own.

Principles Issues and Considerations

Principles

The determination of orders that best meet K’s best interest occurs within a statutory framework which mandates an analysis of enumerated Considerations within specified Objects and Principles.
The statutory framework has now been referred in a number of decisions of the Full Court. I have attempted to crystallise those principles in earlier decisions and I make it plain that I rely here upon the principles, and my understanding of the statutory framework set out by me in Lansa & Clovelly [2010] FamCA 80 and Weiss & Arnold [2010] FamCA 270.
So, too, a statutory presumption guides the issue of parental responsibility which must be rebutted by reference to one or both of the exceptions provided for in the Family Law Act 1975 (Cth) (“the Act”) (s 61DA).
I have also attempted to outline my understanding of the law in respect of this important aspect of Part VII by attempting to distil the statutory mandates and the Full Court (and other) authorities into a set of principles applicable to a parenting decision such as the present. Again, I make clear that I am here relying upon those principles as there set out (see Lansa & Clovelly at 136-152 and Weiss & Arnold at 180-199).
The statutory requirements are not addressed by reference to a seriatim list but, rather, by reference to the issues for K in which those Considerations, Objects and Principles find reflection in assessing her best interests.
The Court was assisted significantly in this case by the two single experts, earlier referred to. I found each of their reports compelling, thoughtful and extremely helpful in arriving at findings about K’s best interests. Many of the matters referred to in those reports will be discussed in detail later in these Reasons.
In his second report, at paragraph 19, Mr F lists the issues underlying his assessment as follows:
a)Whether or not the father can adequately protect and supervise [K], with particular reference to the circumstances surrounding [L’s] death, his history of marijuana misuse, and his mental health.
b)Whether or not the mother can adequately care for [K] with particular reference to her level of maturity, assertiveness and her mental health.
c)The impact of high parental conflict and poor communication on [K] and structures that may offer her some protection from this.
d)The father’s capacity to promote a meaningful relationship between [K] and her mother.
e)The mother’s capacity to promote a meaningful relationship between [K] and her father.
f)The allegations of violence, depravation of liberty and threats by the father to the mother and the potential impact of this on shared parental responsibility.
g)[K’s] attachments; the impact of significant structural change upon her and the risks associated with further change.
It will be appreciated immediately that those issues find ready reflection in the statutory Considerations mandated by the Act (and its Objects and Principles).
Plainly, the Primary Consideration of the benefit of a meaningful relationship for K with each of her parents is of fundamental significance. So too is an assessment of the need to protect K from any physical or psychological harm, or the risk of being subjected to or exposed to abuse, neglect or family violence. I make it clear that I consider that issue of any family violence involving K or a member of her family, is an important matter which I propose to deal with when dealing with the issue of prospective harm.

The Expert Evidence

The foundation of the opinions expressed by Dr M and Mr F in their respective reports (each of which, it should be emphasized, were authored not only some 12 months ago, but also, very significantly, some three or four months after L’s death) can be seen rooted in the need for stability for K. As seen, in Dr M’s case, the opinion is also expressed on the basis that “the present clinical picture is likely to change”.
In terms of the statutory Objects, Principles and Considerations, the opinions can be seen founded in the effect of change; the nature of the relationship between K and each of her parents and the need for a meaningful relationship with each; the degree of attachment to each parent and the relevant parenting capacities of each of the parents (effected as they each were by the profound bereavement each was suffering). So, too, K’s bereavement is also, importantly, recognised in each report.
As to the latter, Mr F says, for example:
64.The most significant change for [K] is the loss of her younger sister. This also has a significant affect on her parents. They appear to remain in considerable grief and it is reasonable to expect that their emotional availability and containment will be generally diminished for some time.… For [K] the loss will be very confusing as, developmentally, the concept of death is very difficult to comprehend.
Dr M says of the mother:
She stated that after [L’s] death at first both parents blamed each other. She said that she did blame him a bit and part of her still feels anger towards him. She stated that accidents happen but she is still grieving and that means some angry feelings. She acknowledges that anger will not bring [L] back.
Dr M goes on to say, in respect of the father, “He has been tortured with self blame and said “I miss her so much it kills me”. Dr M goes on to opine:
I think that the present clinical picture is likely to change. [The parents] are in a very early stage of bereavement and there is a probability that the anger will resolve over time.…
The opinion of each of Dr M and Mr F were given in reports some 12 moths before the trial hearing. Each gave oral evidence at the hearing.

Mr F’s initial, ultimate opinion suggested no change to the then existing situation (nine nights per fortnight with the father, and five nights per fortnight with the mother) and went so far as to say that “the only reason” for the Court to consider a substantial alteration to that arrangement was:
… if there is a prevailing concern that there is an unacceptable risk to [K] in the care of her father as a result of issues pertaining to substance use (and the unacceptable risk of neglect), family violence or the failure to promote a relationship between [K] and her mother. …
It should be said that Mr F was not suggesting that the current interim arrangement should provide a “starting point” or “presumption” from which the current enquiry into K’s best interests ought proceed. Rather, he sought to emphasise that stability was important for K; she, too, is grieving.
I agree wholeheartedly with the opinions expressed by Mr F in his report about the profound importance of stability for K in light of the very acute emotional difficulties with which she has had to contend in her short life. She has had to endure the separation of her two, primary loved objects, acrimony emanating from that separation and, some 15 months later, the death of her sibling. It is difficult to imagine a more tumultuous set of circumstances with which a very young child would have to contend.
The preservation of stability and predictability in K’s attachments, routines and daily touchstones is, in my view, of central importance to her best interests. So much was in my view identified by each of Dr M and Mr F and I completely agree with the opinions expressed in their respective reports, and the bases therefore.
Dr M’s current position, although similar, emanated from a slightly different perspective. In her oral evidence, Dr M was of the opinion that the evidence now available indicated that her cautious optimism about the clinical picture evident to her in January/February 2009 had not changed as she might have anticipated. This gave rise to pessimism by her about the prospect of that change occurring – at least in the medium term. A particular concern was the attitude exhibited by the father towards the mother.
The question, then, becomes: how do those centrally important Considerations (or set of Considerations) fit within the broader picture of K’s best interests, established by the evidence. K has been in the predominant care of her father for the last 2½ years, the last 14 months of which for nine days a fortnight, with the mother having K in her care for the remaining five days.
In that respect, I am profoundly concerned, as I said during the course of the hearing on more than one occasion, about the attitude exhibited by each of the parties toward the other and, in particular, the attitude of the father exhibited towards the mother. In my view, the latter can be described as “barely concealed contempt”.
That factor and its ramifications are, in my view, not appropriately pigeon-holed into any one of “the Additional Considerations” in particular. Rather, it can be seen to infect a number of the s 60CC Considerations. For example, whilst the Act instructs the Court to consider – as a Primary Consideration – “the benefit of a meaningful relationship”, it is abundantly plain to me that the father accords no such benefit for K in any such relationship with her mother. So, too, such an attitude must, in my view, point to profound pessimism about the willingness and the capacity of the father to facilitate appropriate time between K and her mother – whether as ordered or, more preferably, as might be agreed between the parties as K matures and her interests change.
So, too, as Dr M, an expert child psychiatrist, made clear in the witness box, such behaviour has a high probability of causing emotional harm to K in the long term.
Issues of family violence are also important in this case, but in a broader context, which I propose to examine in more detail below. Further, the issue of substance abuse – which, again, can be seen to be readily referable to a number of the statutory Considerations (the potential for harm; the responsibilities of parenthood; the capacity to parent as but three examples) also needs to be considered given the place that it occupied during the hearing of this case. Again, I propose to do so in more detail below.
It is first necessary to say something of each of the parents in this case and to place findings that will ultimately be made about them into what I consider to be an appropriate context for the purposes of these proceedings.

The Position Of The Parents And Their Evidence

The emotional ramifications of L’s death for each of the parents are described in each of Dr M’s and Mr F’s reports. They are, in any event, I would have thought, self evident. The difficulty is that this dreadful event compounded an already volatile, conflictual and, as I find, immature set of emotional reactions to the breakdown of the relationship and the post-separation co-parenting relationship.
Neither party has been, in the approximate two-and-a-half years since separation, at their best. Each has been significantly compromised emotionally and at least some of their respective behaviours can be seen to be reflective of that. A good example is that each party tends to, in one form or another, blame the other for L’s death (although quite how the mother might be to blame for that incident escapes me).
Also, each party has, as I find, sought to express their grief in anger, blame and criticism of the other. Again, the behaviour resulting from such emotional catalysts is hardly likely to allow people to be seen at their best, and I take that factor into account.
K has been in the predominant care of the father for the two-and-a-half years since separation. Where, as here, attitudinal issues and the capacity and willingness to promote the relationship with the other parent are crucially important issues, the spotlight of inquiry tends to shine much brighter upon the parent who has had the predominant care of the child. In my view, such is the case here.
Parental capacity is often an issue (as it is here) when one of the two parents (here, the mother) remains effectively untested as a post-separation, predominant carer. These factors, too, need to be taken into account when drawing comparisons between the two parents and assessing the behaviours of, in particular, the father. I have taken account of those factors.
Further, the separation and death following shortly thereafter, occur to relatively new parents who, like all parents, would have been struggling with the demands of very young children. Here they did so within the context of a conflictual, post-separation relationship. The mother was relatively young when each of the children were born. I assess each of the parents as being immature. These factors, too, need to be borne in my mind, in my view, when making assessments of the respective parties and comparisons between them. Again, I have taken those factors into account.
I consider that the evidence of each of the parties is so clouded by their antipathy towards each other, and their desire to manifest their grief in blame and anger, that their evidence is bathed in exaggeration. Both parties, and particularly, in my view, the mother, have turned assumption into asserted fact.

Parental Attitudes And Their Ramifications

Mr F prepared a Children and Parents Issues Assessment Report for the Court’s first day of trial. It is necessary to observe that such an assessment is prepared by a Family Consultant consequent upon introduction of the parents into the Child Responsive Program run by this Court. Neither parent can be in any doubt that what is said by them to the Family Consultant is part of a report for the Court.
That report refers to the father as:
… appear[ing] receptive to comments about the need for parents to promote relationships and protect children from conflict. He appeared somewhat receptive to comments about frequent quality time being needed to allow meaningful relationships to develop. He expressed the desire to be able to express his concerns and talk about [K] without conflict.
Whilst that might represent the assessment by Mr F at that time, it is an assessment which is at odds with the father’s expressed commitment to the relationship between K and her mother:-
[The father] presents as somewhat ambivalent about whether or not [K] should have a relationship with [the mother]. On the one hand, he says she should, but on the other he said that he couldn’t care either way. Asked how he wanted [K] to remember her mother, he replied, ‘I wish she didn’t remember her, but it’s her Mum I suppose. Thanks for giving birth. That’s about it’.
It is difficult to imagine an expression about a co-parent more dismissive and contemptuous than that: “Thanks for giving birth. That’s about it.”
It needs to be borne in mind that the interviews for that assessment took place only a matter of six or seven weeks after L’s death. Significant latitude should, it seems to me, be extended to the father in those circumstances, notwithstanding the degree of contempt for the mother contained in the statement. If it existed alone, I may be persuaded by reason of those extraordinary external factors to not regard it as being indicative of the father’s attitude toward the mother.
However, sadly, it seems but an example of a pattern emerging from the evidence which, taken in its entirety, is indicative of it representing an underlying attitude exhibited by the father.
An example occurred during the trial, some 14 or 15 months after the statement just referred to was made. The father, in answer to a question in cross-examination about telephone communication between K and her mother asked rhetorically (with considerable frustration and some anger) whether he should have the mother in mind all the time and ought be thinking of her in respect of matters such as that. The short answer to the apparently rhetorical question posed by the father in the witness box – given K’s age and all she has been through – is that he should, indeed, be thinking of the mother. Not for him, but for K. That does not seem to have occurred to him.
Time and again, the father’s attitude in the witness box appeared to be “tit for tat”: I could do such and such, but why doesn’t she? – a significant pointer to my assessment of him as immature.
Further, the following matters, all of which in the context under discussion, I regard as significant, suggest to me that the comments made to Mr F and in the witness box some 14 months apart are indicative of a general and deeply held disdain for the mother and for the importance of her position in K’s life. Examples are:
·Despite enrolling K in a school local to him, the mother was not included on the enrolment form either as the child’s mother or as a contact person;
·The father took no steps to include the mother in K’s first day of prep – surely a significant milestone for any child. Instead, a person (apparently the father’s partner (Ms H)) attended with the father. The attendance by Ms H, viewed within the chronology of their relationship, will be referred to below.
·At two consecutive Christmas events at K’s Child Care, the mother was not included in Christmas activities. Again, the importance of those activities and the attendance of each of a child’s parents, given the age of the child is, in my view, significant.
·No arrangement has been made by the father to permit K spending any time with her mother on Mother’s Day.
·No arrangement has been made by the father to permit K spending time with her mother on K’s birthday.
During the course of submissions, I asked Counsel for the father to point to all such evidence before me upon which I could base a finding that the father would promote a relationship between K and her mother if in the predominant care of his client, and/or evidence from which I could find that the father had that capacity. Counsel pointed to the fact that the father had: facilitated, without order, time between the mother and K post-separation; facilitated Christmas contact in 2008 outside the terms of the order and similarly in 2009.
The evidence discloses, however, that time between K and her mother immediately post-separation was somewhat irregular and attended by conflict. Certainly, the evidence reveals that the Christmas arrangements in 2009 were attended by significant conflict (whoever might have been “at fault” or “in the right”).
After Counsel had closed his submissions, I indicated to Counsel that I considered the willingness and capacity to promote a relationship with the other parent to be an extremely significant issue in this case and again invited Counsel to make further submissions as to findings which the evidence would sustain in favour of his client in that respect. No further submissions were received.
I find that the father’s attitude towards the mother of K – his co-parent – is one of disdain and barely concealed contempt. In my view, he has little, if any, insight into the importance for K of a regular, active and meaningful involvement of her mother in her life – all the more so particularly at this early stage of her life.
I consider that the words used by the father to Mr F in December 2008, although then undoubtedly coloured by understandable grief and by anger, are indicative, nevertheless, of his current attitude toward the mother. The anger, disrespect and disdain have not at all abated in that time.
I find that the father has an extremely limited (emotional) capacity to not only facilitate regular, meaningful time between K and her mother if K was to be in his substantial care, but I am also profoundly concerned about the possibility of overt manifestations of that attitude existing within his household in K’s presence or hearing.
The statements made by Mr F, the statements made by the father in the witness box and, evidence of the father’s attitude generally are, in my view, indicative of an immature person who neither finds the need for, nor has a significant capacity for, appropriate restraint in the manifestation of his feelings and actions.
In my view, he expresses grief and loss most commonly as anger and, in doing so, is prone to making the sorts of statements about the mother indicated by his statements to Mr F and in the witness box. As K gets older and commences voicing ideas of her own, I consider it highly likely that overt manifestations of the father’s attitude will increase.
It should not be thought that a corollary of the findings just made is that the mother will actively, wholeheartedly and sincerely promote a relationship between K and the father. Indeed, I have significant concerns about her capacity to do so. As earlier indicated, I also have significant concerns about her maturity.
I consider that the mother’s feelings of grief and loss are also frequently expressed in anger and blame and this clouds her capacity to see beyond those things – in my view, a necessary component of predominating K’s best interests ahead of her own feelings and interests. She has availed herself of counselling and my strong impression of her is that she had made some progress in that respect – progress not evident in the father.
It is, in my view, significant to note that whilst, as I find, the mother was depressed at or about the time of separation, and was likely to have been primarily causative of the children being in the full-time care of the father at that time, that depressive illness has now resolved.
It seems plain that the father does not accept this. But, that view is not only contrary to my assessment, but also contrary to the expert opinion of Dr M:
Her history was clear and sequential. There did not appear to be any disorder of thought, mood or perception. Her history was somewhat bland and I was unable to ascertain the reason for counselling in adolescence. There is a significant period of alcohol abuse which may have coincided with a depressive episode. …
… both parents are in the throes of a grief reaction as a result of the very recent death of their younger child.… It is possible that she has experienced a depressive disorder; although as noted her somewhat bland and uninformative history does not offer a clear diagnosis.
Dr M did not consider that any diagnosable, depressive condition impacted upon the mother’s capacity to parent, or to promote K’s relationship with the father.
In his report, Mr F says:
70.Another factor that may be an issue for [the father’s] parental capacity relates to the allegations of the mother that he has acted unilaterally and exclusively with [K] to the extent that he has withheld the relationship between daughter and mother. For [K] to have found herself in a structure of significantly reduced time with her mother, would have caused her a great deal of anxiety and confusion. There is no way possible that such a structural shift is in the child’s interests, if it is the case that the only reason for it is because the father has punitive or proprietorial intentions.
I suspect that, if pushed, the father might intellectualise that it is beneficial for K to have a relationship with her mother. However, his actions, as I find, for the most part motivated by his inability to contain his anger towards, and disdain for, the mother, speak of no such perceived benefit. Whilst the father may not see his actions as punitive or proprietorial, in my view they have that effect – at least as far as K’s developmental needs are concerned.
Mr F’s report posits the father’s compliance with the interim orders made by this Court in November 2008 as providing some comfort as to his capacity and willingness to promote the relationship between K and her mother. Mr F goes on to say:
If he were not compliant, I would hold significant concerns about [K] being able to have a meaningful relationship with each of her parents, if she remains in the primary care of her father.
In giving oral evidence, however, Mr F made it clear that, in his opinion, the Court “should consider” a change in those arrangements by reason of the exemplifications of the father’s attitude earlier described.
In the witness box, Mr F postulated that a significant “downside” of a change for K into the primary significant care of her mother, was that the mother was “untested”. Mr F’s earlier report encapsulates some of the issues that arise as a result:
73.There are concerns raised about the mother’s capacity. These relate chiefly to whether or not she adequately cares for [K]. The history provided by [the mother] in respect of her marriage and the circumstances following separation point to her having some difficulty with assertiveness. It is also consistent with a relationship characterised by power and control issues. The mother’s suggestion that she lured the father to her (in late 2007) by suggesting she was not coping with the children is somewhat concerning. It suggests some difficulty, at least at the time shortly after separation, of being able to distinguish between her emotional needs and those of her children. These are common problems for parents following separation. They are also common problems for parents who suffer from grief.
74.It is also evident that the mother reports “going off the rails” as she puts it in December 2007. This is clearly a significantly unstable period of her life in which she reports amphetamine use and increased alcohol use. She does not however, provide a history where conclusions might be drawn about dependence on these substances. She has also had an abortion during this time and she made allegations about [the father] which if accepted, would be likely to have caused her a high level of stress and probably trauma.
Despite my reservations about the mother’s capacity and willingness to promote a relationship between K and the father if K is in her substantive care, I am somewhat comforted by the fact that she has, as seems clear on the evidence, sought help for herself and suggested similar help for K. It appears clear that Mr F also derives some comfort from the earlier fact: “It appears that [the mother] has been help-seeking in establishing suitable supports for herself, especially since [L’s] death.”

In respect of the latter, I have earlier quoted Dr M’s opinion that K needs therapeutic intervention. The father has taken no steps to avail K of any such assistance. The mother has suggested to the father, through her solicitors, that such steps be taken. Whilst I accept that decisions such as the involvement of a child psychiatrist for an, as yet, very young child, are motivated by a plethora of considerations including educational and attitudinal issues specific to individual parents, given what K has had to cope with, I am heartened by the mother’s openness to Dr M’s expert suggestion and troubled by the father’s apparent unwillingness to either take that opinion on board or to have facilitated any such intervention for K.

Violence And Its Context

As will have been seen from the excerpt from Mr F’s report just referred to, the mother contends that separation and its aftermath was attended by overbearing and/or aggressive and controlling behaviour on the part of the father.
I consider the underlying emotional imperatives in the father’s life have produced, and are likely to produce, anger and, at the least, verbal aggression as manifestations of it, as asserted by the mother (which assertions I accept).
However inappropriate any such behaviour of the father – and I do, unequivocally, consider it inappropriate even in the light of the profoundly difficult circumstances pertaining to him (and the mother) – the behaviour of each of the parties in the situations in which they found themselves are redolent of verbal, and some physical, aggression forming part of their usual mutual behavioural characteristics.
For the father’s part, a post-separation incident resulted in a number of criminal charges. The father ultimately pleaded guilty in August 2008 to two of those charges and was placed on probation in respect of them.
In an initial affidavit filed in October 2008, the mother deposes to having commenced living with her “partner” in June of that year. In an affidavit filed by the mother on 8 May 2009, the mother deposes to having commenced her relationship in about March 2008 and having become engaged on 24 December 2008. She deposed to having signed a Contract to buy a house with her fiancée.
Plainly, her case was predicated on she and her fiancée (Mr Y) having a committed relationship and K being reared within it if she was successful in her application to this Court. On 22 January 2010, the mother swore an affidavit (filed 25 January 2010) in which she deposes:
53. I currently live at home with my parents.
54.My former fiancée [Mr Y] and I separated in July 2009 and I have been living with my parents since that time.
55.[Mr Y] and I were on talking terms for a period of time however we had an incident on the […] October 2009 on the first anniversary of [L’s] death. There is now a domestic violence order against me. The matter is currently before the courts.
Some six days later, the mother swore a further affidavit in which “the incident on […] October 2009” was deposed to in more detail. That affidavit deposes to the mother having been charged with Wilful Damage of her former fiancée’s motor vehicle. She also includes (and implicitly admits) details contained in the Court brief in respect of that criminal charge. It is described as follows:
Whilst at [Mr Y’s] vehicle, [the mother] was alleged to bend down towards the rear and front of [Mr Y’s] vehicle and deflate 2 tyres by releasing air from the valves of the tyres. [The mother] then scratched panels on the driver’s side of the vehicle. [The mother] then scratched the bonnet of the vehicle. [The mother] then jumped over the front gates of [Mr Y’s] dwelling and decamp[ed]…
…During the questioning [the mother] stated that [she attended an address] after receiving a derogatory message on her mobile phone about her recently deceased daughter. [The mother] at this stage was slightly intoxicated and upset. The [mother] admitted to jumping the front gates of the address to talk with [Mr Y]. … [At Mr Y’s vehicle, the mother] admitted to deflating a rear tyre … [and] … then produced a Stanley knife from her pocket and scratched along several panels on the driver’s side of the vehicle including the door and front panel.
[The mother] then stated that she jumped the front gates and decamped with an unknown friend …
The mother was issued by me with a Certificate pursuant to s 128 of the Evidence Act 1995 (Cth) and, thereafter, admitted that the facts just outlined from the Court brief were accurate.
Plainly enough, family violence, in all its forms, is a very significant matter taken very seriously by this Court. In this particular instance, it has, in respect of K’s best interests, a wider and, in my assessment, equally important, ramification.
It seems to me that the incidents just described are redolent of what I consider to be the extreme immaturity of each of the parents. It seems to me each of them express their emotions in an uncontained way that manifests itself in inappropriate (and criminal) behaviour. What that says about parental capacity and the responsibilities of parenthood should be obvious.
Further to the two incidents just referred to, production of documents pursuant to subpoena revealed incidents, undisclosed by the father, with the potential to provide pointers to the broader environment in which K would be nurtured if she is to spend significant primary time with the father.
In that respect, it is interesting to observe that, in an affidavit sworn by the father on 22 October 2009, he deposes (in reference to the matters involving the matter to which he pleaded guilty):
13.… I acted on the emotion in confronting [the mother] and following her in my vehicle at that time for which I am regretful but clearly in the circumstances that followed our separation this was a most difficult time.
14.Considering that I have now experience [sic] the death of a child and have dealt with the immense emotion related to that in a more appropriate fashion I believe I have in some manners learned to deal with my emotions [in] a more appropriate fashion bearing in mind that the Applicant mother was my first wife and the mother of my children …
An affidavit in the father’s case is sworn the same day by a Ms H. She describes herself in that affidavit as “the partner” of the respondent father. She has a three-and-a-half year old child from a previous relationship. She deposes in that affidavit to spending “three to four nights in each week” at the father’s home.
The importance of Ms H to the father’s case, and to the potential future co-nurturing of K, can be seen exemplified in what the father deposes in an affidavit filed 28 May 2009:-
[Ms H] is an important member of the family and a great support. She assists me with [K] in any way she can and we act as a family unit together. It is not uncommon for [Ms H] to drop [K] off at day care or pick her up. Since [Ms H] has been doing this I have received text messages from the mother stating that she does not want [Ms H] to take [K] to day care and I am only allowed to do this. I do not know why the mother has not accepted [Ms H] as a part of my life and that [Ms H] will assist with [K] in any way she can. Without [Ms H] assisting me with transporting [K] to and from day care it is very difficult for me to ensure I can also work enough hours to financially support [K].
In a sworn statement that, in light of events revealed by subpoenaed documents, might be seen (at best) to be somewhat disingenuous, Ms H deposes:
9.There was a short period of time when we did live together, However it was highly complicated due to the ongoing Court proceedings … and so we decided it was not yet time to take that step. We are looking at moving in together again after the Court proceedings have been finalised.
Documents produced pursuant to subpoena from the Queensland Police Service indicate an incident occurring between the father and Ms H. The evidence reveals that Ms H had attended at the father’s home in order to collect her belongings (plainly in pursuit of the cessation of their relationship). An incident transpired that involved Ms H throwing packets of pasta and clothing on to the lawn. The police were called. A Domestic Violence Order was applied for by the police, with the father as the aggrieved.
Confronted with this evidence, Ms H indicated that, after the incident, she still saw the father most days. She implied that their relationship continued. The exact nature of the relationship, its prospect for the future (and thus its role in the future nurturing of K should she live substantially with the father) remains entirely unclear.
Significantly, it is those circumstances, which precede Ms H (as distinct from the mother) accompanying the father on K’s first day of school.
The circumstances in which Ms H (and her young son, J) might form part of a family unit within which K would be nurtured if she was ordered to remain in the predominant care of the father, are further blurred by additional information, also obtained pursuant to subpoena.
Ms H gave evidence that a former partner (J’s father) had committed offences against her which, as she described them, struck me as being both very serious and very frightening.
Her evidence was that he had been imprisoned and committed serious offences against her whilst on parole. She said that, as a result, he was returned to jail for the offences to which she was subject and for breaching his parole. She says that he will be imprisoned until 2012.
I confess that the circumstances said by her to give rise to the imprisonment (either initially or subsequent to the incident with her) struck me as very odd. For example, Ms H said that this man was imprisoned initially for breach of a Domestic Violence Order despite having no previous convictions and despite the breach not involving conduct/injuries of a serious kind. She said that his initial period of imprisonment was three months and that the subsequent offence against her was committed on parole – something which struck me as odd when regard is had to the Corrective Services Act 2006 (Qld). Upon questioning from the Court, Ms H later indicated that it may be that he had received imprisonment of three months and was on probation at the time the subsequent offence occurred. Even if that is so, it is by no means clear to me how it is that he is in jail until 2012.
Be those things as they may, I suggested to Ms H that the incident as described by her involving her former partner (involving as it did a breach of an existing Domestic Violence Order) must have been experienced as serious and terrifying. She agreed. I then asked Ms H whether she was frightened about what this man might do upon his release from prison, apparently in 2012. I indicated to Ms H that, in light of the incident as described by her to me, it struck me that she would be very frightened of him (I indicated to her, for example, that I personally would be frightened of him in those circumstances.)
Ms H told me that she wasn’t frightened by him or by what he might do in the future. When I enquired why, in light of the circumstances just described, she said it was because “she was no longer in love with him”. I suggested to her that his attitude might be more important (or, perhaps, as important) as hers. She said that he was no longer in love with her either because he had found a new partner.
I found this evidence perplexing and troubling to say the least. It seems to me to introduce a further element of uncertainty – and a troubling element of uncertainty – to the already uncertain state of the relationship between the father and Ms H as a potential co-nurturing environment for K.
Quite apart from the matters just mentioned, any such co-nurturing environment (if it is to occur) will involve K having a relationship with a step-sibling relatively close in age to her, in circumstances where she has previously lost a sibling. The ramifications of this for a young child would surely be considered significant. Certainly, it is by me. The issue was never mentioned in any material let alone as something which the father would have uppermost in his mind. I consider it potentially a very significant change for K and, potentially, a significant challenge to her stability.
No material from either the father or Ms H deposes to the changes in the relationship that had occurred subsequent to the matters just described and how, or if, those events have effected the status of the relationship and its future.

The Potential for Harm

Each of the parents indicated, initially, that, in their respective views, K was not at risk of violence or physical harm from the other.
The mother told Mr F in the interviews for his March 2009 report, “I don’t want to take [K] away from her father. I just really feel she’d be better off. I am not criticising him [the father]”.
When Mr F pressed her to nominate “the main reason” why K should “undergo such a change of structure at this stage” (that is, into her care), the mother proposed the father’s drug use; concerns about the father’s brother; and her concerns about the father promoting K’s relationship with her. She also pointed to the father’s emotional state, telling Mr F that he can be “decently nice” in one week but then quite withdrawn in another. She said she was concerned about his mood and its effect on K.
At no time did the mother mention to Mr F any concerns she had about K suffering physical harm at the hands of the father. The mother was slightly more specific to Dr M. The doctor comments:
“… [the mother] commented that she knew the father was a good parent to the best of his ability but that she was concerned that he was unstable. She said that he would not purposely hurt the child. However, she said he can lose control. She said she had lost one daughter and didn’t want to lose another”.
Whilst the father expressed some concerns to Mr F about K’s hygiene in the care of her mother, he, too, raised no concerns about K being at the risk of violence or physical harm at the hands of her mother. So, too, the father raised no such concerns with Dr M when he spoke to her.
In the lead up to the final hearing of this matter, each of the parties had made complaints to Departmental authorities and the police about concerns they each had about K suffering physical harm. Despite this, each of the parties was at pains to say in oral evidence at the trial, that they “weren’t making allegations” that the other had perpetrated physical harm upon the child.
I found these respective assertions to be hollow. I consider that each of the parties thought they might gain some form of forensic advantage by, in effect, making an allegation in the hope that the court might find it substantiated, while, at the same time, seeking to resile from the making of allegations lest the court might find them unsubstantiated and attach criticism to the making of the allegations.
In the absence of such an explanation, it is not at all clear how one party could, for example, raise a concern with the Department that the other had burnt K with cigarettes whilst swearing to a court that they had no concerns about her coming to physical harm in that party’s care.
That is all the more so because neither party contends, (nor does the Independent Children's Lawyer contend) that there is any reliable evidence to suggest that K is at any risk of physical harm in the care of either party.

Substance Abuse

Each of the parties make admissions as to the use of illicit substances at various stages of their relationship.
Reference has already been made to Dr M’s summary of what the mother had to say to her about her earlier drug use. It is not suggested by the father in these proceedings that the use of illicit drugs is an issue as far as the mother’s parenting is concerned. However, the father does point to what he asserts to be the mother’s abuse of alcohol at about the time of separation.
The mother has acknowledged to each of Dr M and Mr F that she “went off the rails” at about that time. I think it highly likely that, at this point in her life, there was significant abuse of alcohol on her part. It is troubling to note, that, at another emotionally stressful time (the anniversary of L’s death and dealing with her former partner at the time) the report of the incident founding criminal charges against her, notes her as being “intoxicated”.
That said, the reference just made is the only evidence before me pointing to any such concern in recent times. Other evidence would suggest that the issue is not acute in terms of K’s care. For example, the mother admits that, during the period when she “lost the plot”, she was “drinking most days, more than ten drinks at a sitting”. She said this went on for about a month and she then realised that she had to get back on track. As earlier mentioned, the mother accessed counselling assistance.
Furthermore, although plainly depressed at that time, she was treated with Zoloft (an antidepressant) “for 12 months”. She told Dr M that, initially, she was on 50mg of Zoloft and then went to 100mg, but it was then tapered off because her doctor thought “she was okay after about 12 months”. She said that, during this same period she sometimes didn’t sleep well and that she occasionally “was overexcited” and “went out clubbing”. Reference to the mother’s account given to Dr M shows it as consistent with her evidence given in the witness box.
The picture which emerges is of a person using alcohol to cope at a time when she was depressed, but otherwise appropriately accessing medical and counselling assistance and being prescribed medically appropriate medication to deal with a depression which, on all accounts, appears to have successfully resolved. I reitierate Mr F’s comments in respect to the mother continuing to access counselling.
The mother’s access to medical and counselling services contrasts with the position of the father. He told Mr F at the initial interviews for the Children’s and Parents Issues Assessment Report that he consumed marijuana daily during his relationship with the mother but, Mr F says, he “reports only sporadic use at this stage” (i.e. as at December 2008).
It is plain that the father’s abuse of marijuana remains a major issue for the mother. She asserts that the father was either intoxicated with marijuana or was sleeping under its effects, at the time that L died. A police and departmental investigation failed to establish any misconduct and a police search of his premises failed to reveal any drugs or drug implements. (In respect of the latter, the father concedes that a “bong” was in his home at the time and effects surprise that the police didn’t find it, although he says he can’t recall where it was situated within the home.)
In an affidavit filed 28 May 2009, the father deposes that he has “used speed in the past” but deposes to having stopped taking it when he was 19. The mother does not appear to challenge this. The father goes on to depose, “I smoked marijuana for some years and did smoke it during my relationship with the mother. I say I would spend approximately $50 per week on marijuana.” The father goes on to depose, however:
124.When my relationship with the mother broke down I stopped taking marijuana completely. I stopped because I knew it was my responsibility to care for the children and ensure that they had stability after the break up. I have used it only once in all of that time and that was around the time that [L] died and I was most upset and it was not at a time when [K] was in my care.
125.I have not taken marijuana or any other illicit drug since this time. I have no intention of taking any drugs in the future.
It will be appreciated that sworn evidence of the use of marijuana on one single occasion “around the time that [L] died” (i.e. about October 2008) is somewhat at odds with “sporadic use” as reported by Mr F in December 2008. It further contrasts somewhat with the father’s evidence in the witness box.

In his March 2009 report, Mr F records:
… [The father] said, ‘I used to smoke [cannabis] a lot with [the mother] like every day. After the split life got too busy and I forgot about it’. He said that since separation he has smoked cannabis “a day here or there”. He said he last smoked it after [L] died, when [the mother] had [K] in her care and he did not know if she was going to return her to him. … He said he ‘felt crazy’ and the cannabis “calmed me down a bit”.
It needs to be appreciated, again, that an ongoing central concern of the mother (expressed in her material and in what she had to say to Mr F in December 2008) is her belief (whether correct or not) that the father’s regular use of marijuana continues and was integrally involved in the death of L. With that in mind, the Independent Children's Lawyer sought to have the father participate, with his consent, in random drug testing.
The evidence reveals that, between February 2009 and January 2010, the Independent Children's Lawyer made eight such requests. Each sought that testing occur within 24 hours. On 17 December 2009, a test was requested and performed the same day. No drugs were detected.
Irrespective, on five other occasions the father did not undertake such tests. On two other occasions there was a significant delay between the request to undertake a test within 24 hours and its performance. On 20 April 2009 the requested test was performed almost three weeks later on 11 March 2009. When a test requested on 13 August 2009 was performed the following day, benzodiazepines were detected. The father explains this by saying it is a by-product of a medication he was taking for gout. No evidence challenges this assertion.
The father purports to provide explanations for at least some of the failures to undertake the drug testing. I was not satisfied with his explanations. There were inconsistencies in his evidence and contradictions in his sworn evidence. Generally, I was not impressed with him as a witness. Those factors, combined with his failure to undertake tests as requested, lead me to draw a conclusion that his use of marijuana is certainly greater than the one occasion to which he has sworn. I consider it likely that his use of marijuana has continued. I consider that he uses the drug on a regular basis, even if not to the extent of the daily use which marked the pre-separation period.
I am not concerned in these proceedings to attribute moral approbation to illicit conduct. My concern is the impact that use of marijuana of the extent found might have in respect of findings about K’s best interests and, in particular, whether the use of that drug (or, indeed, any other drug) might impact upon a parent’s capacity to parent, or to have the potential to lead to a diminution in parental responsibility.
The relevance of marijuana use (or the use of any other drug, legal or illegal) in that proper context can be seen in evidence from both Mr F and Dr M, which I accept. The unchallenged evidence of Mr F, at paragraph 66 of his March 2009 report is:
66.Cannabis depresses brain function causing analgesia and euphoria. It affects memory, reaction time, cognition, movement and pain relief. Psychoactive effects include distortions of sense of time, sound, colour, taste, concentration and the production of a dream-like state. It does not affect the basal body functions such as respiration and it is not considered to be lethal (in intoxication). Adverse outcomes include paranoia and acute depressive reactions. Hallucination is rare.
...
68.If it is the case that [the father] remains as a frequent and regular smoker of cannabis, especially while [K] is in his immediate care, I am of the view on the basis of the effects of intoxication and withdrawal, that his capacity as a parent would be significantly diminished. It is very difficult to see how he could appropriately meet [K’s] developmental needs if he remains in a persistent state of intoxication. It can result in significant physical and emotional neglect and inadequate levels of supervision.
Interestingly, Ms H says that, to her knowledge, the father does not use drugs and she would have no tolerance of him doing so and has never seen him doing so. I was not impressed with Ms H as a witness. Aspects of her evidence have earlier been referred to. I find this specific evidence difficult to accept and I consider it likely to be untrue.
The opinions expressed by Mr F (being the only evidence before me on the issue) relate, though, to “frequent and regular” use and to regular, and relatively persistent, intoxication and withdrawal. The effects on parenting capacity (and inferentially, parental responsibility, and the potential for harm) described by Mr F emanate, as it seems to me, from a finding of usage of that type.
Whilst I consider it more likely than not that the father’s use of cannabis is more significant than he has erstwhile admitted and that the father has deliberately understated his use of the drug, I am not satisfied that his use of marijuana is of the nature and frequency of use (and consequent effects) described by Mr F in his report.

Considerations: An Overall Picture?

It seems to me that the picture presented by the evidence as a whole in this case is of two parents overwhelmed by an appalling tragedy, the effects of which, emotionally and psychologically, are highly likely to last the rest of their lives.
This tragedy followed relatively closely upon a conflictual separation with the emotional and psychological ramifications for the participants in a relationship that this implies. Worse, that separation involved significant conflict and the mother, one of two young children’s primary loved objects going “off the rails”.
That same parent is in my view, in any event, immature and emotionally vulnerable.
Equally, the reaction of two young children’s other parent, the father, is also marked by significant immaturity. Hurt and anger were, and remain, the primary driving forces of his reactions.
The appalling tragedy of the death of one of those two young children exacerbated each and all of those things. Two immature people, each of whom were (and are) emotionally vulnerable needed to deal with two acute tragedies in their lives and to somehow manage the co-parenting of their remaining young child in the midst of it.
The tasks, emotional strength and emotional maturity needed to do that would likely confound most people. Certainly, it confounded the two parents in this case. They each brought to the parenting tasks, and to the post-separation co-parenting tasks, significant impairment and incapacities.
By reason of being human, all parents parent imperfectly. Two people parenting a child does not produce the result that each will have synchronised views, attitudes and capacities with respect to those parenting tasks. Each parent must bring to the task their inherent inadequacies – inadequacies that all parents, without exception, have. The task of all parents – whether in intact families or separated families – is to seek to control and adapt their respective inadequacies so as to predominate the needs of their children at all of the different stages of their development. The degree to which all parents fail at their task marks the parenting legacy; the frailties and idiosyncrasies of all parents necessarily impacts on all children.
The legislation from which this Court derives power and under which it operates makes it plain that a preferred outcome in all separated families is that parents put aside, to the extent they are able, their individual incapacities, idiosyncrasies, hurts and complaints and seek to co-operate to provide a relationship with each other that maximises the co-nurturing of their child or children and, in turn, maximises their children’s opportunity to maximise their full potential.
This Court’s processes underline, at every stage, the importance of that over-riding, crucial consideration. They have always done so. Principles, maxims and values which now find a place in the Act have always guided the Court. (As but one example, see the comments of Nygh J, over 20 years before the concept of “meaningful relationship” found legislative voice, in Cotton & Cotton (1983) FLC 91-330).
Fortunately for children, very many cases do not reach the Court. Children in those cases receive the benefit of an imperfect situation (inherent in parental separation) being managed in their best interests by agreement. Agreement seeks to make the best of that imperfect situation for those children.
Fortunately for children, very many of the cases that start life in this Court also result (with the intervention of appropriately trained, experienced and skilled legal practitioners and the intervention of similarly skilful, trained and experienced social scientists) in agreed outcomes.
Children probably cannot legitimately expect, in the usual course, parents who have separated as a result of various issues between them to project unified harmony at all times – or even, perhaps, for much of the time. Children do, however, have an absolute right to expect that their conflicted parents will put aside the adult issues that are of no real interest to them and to predominate their needs ahead of their own.
Unfortunately for some children, a small minority of cases defy all attempts to have cooperation, agreement, mutual respect and selfless focus on their needs win out over a theatre which gives vent to their parents’ dispute. Those cases – which are the cases that proceed to a final hearing in this Court – almost axiomatically involve parents who are unable to put aside their own issues in favour of their children’s issues. So it is here.
These parents have, in effect, been begged by this Court (on the first day of trial and during interim proceedings) to work toward understanding that each of them will carry a burden of grief for the rest of their lives that will necessarily impact upon each of them in differing ways and impact on their capacity to parent in differing ways.
They have lost a child. But a very young child has also lost a sister.
What K desperately needs is for each of these parents (and those who genuinely support each of them) to put aside their differences, to receive such professional assistance as their circumstances would seem to me (and to Dr M and Mr F) to cry out for, and seek to establish for K an involved, thoughtful, selfless and cooperative relationship for her benefit. She has yet much to endure, not least her own grief. She does not need the burden of that which each of her parents seek to place upon her.
Having said that, her parents have, unfortunately, abdicated decisions, that should be arrived at by agreement, to this court. This court’s findings about best interests must guide a court-imposed decision that will be expressed in terms of time but, more importantly, a court-imposed co-parenting relationship.
In my judgment by reasons of the matters earlier discussed, the following ultimate findings should be made:
·Each of these parents care deeply about K and, left to their own devices, would each provide an adequate standard of care for, and nurturing of, K.
·K needs, wants and is entitled to, the benefit of a meaningful relationship with each of her parents. Given her age and stage of development, she needs to have the benefit of substantial parenting from, and significant time with, each of her parents.
·Whilst K is, as yet, too young to express “views” in the sense of wishes as to specific outcomes, she is able to signify her “views” by desiring a close and loving relationship with each of her parents.
·I do not consider that K is at an unacceptable risk of physical harm in the care of either parent.
·The mother’s depression has resolved. Her current state of mental health does not preclude her from carrying out all such tasks as would be necessary for the proper and adequate nurturing of K.
·I consider that each of the parties represent a risk of causing emotional or psychological harm to K by reason of their unresolved grief and, importantly, their current incapacities to contain their antipathy toward their co-parent. I consider that the father presents a greater risk in that respect but, given the attitude of each, it may be a distinction without a difference in terms of K’s best interests.
·Each of the parents have, currently, a significantly impaired ability to facilitate and encourage a close and continuing relationship between K and the other parent. Again, I think the father’s capacity to be more impaired than the mother’s but, again, when viewed in terms of K’s ultimate best interests, I consider the distinction is not significant.
·The nature of the parent’s relationship with each other is having a detrimental impact on K and I think there is little likelihood of that changing in the short or medium term.
·K’s emotional state is fragile and made all the more so by her parent’s inability to deal with, and contain, their emotions – particularly towards each other. In that situation I consider it of vital importance to keep any changes to K’s routines and parenting arrangements to a minimum.
·The attitude exhibited to K by each of her parents is marked by an immature predominance of their issues over those of their young child. The responsibilities of parenthood have been abdicated by each of the parents to that extent.
·The father has failed to fulfil his responsibilities as a co-parent by failing to include the mother in important post-separation events in K’s life and, thereby, failing to facilitate the mother spending time with K.
·K is not at an unacceptable risk of harm by reason of the father’s use of cannabis.
Whilst those findings can, and in my judgment should, be made on the evidence before me, it is more difficult to discern what result or results should emanate from those findings. In some cases, findings applicable to relevant Considerations can point clearly in the direction of an outcome expressed in terms of time and, thus, a co-parenting relationship linked to those findings. In other cases, and this is one, the inter-relationship is less clear.
For example, while the risk of emotional harm is here identified, the statutory object of protection from that harm is, in my view, not achieved any more by one parties’ proposal than the other. The same is true in that example of alternative proposals that might be fashioned by the court.
Similarly, while I consider that K’s capacity to reach her full potential will be impaired for so long as her parents continue their antipathy towards each other and continue to allow her needs to be mired by that, it is by no means clear to me that K being in the predominant care of one parent rather than the other brings about a clearer path to her full potential.
Indeed, given my findings about the personalities of each parent, and their respective immaturity, it might be thought that there is a real risk that such a result might be seen by the parties (wrongly) as one of them being a “winner” and the other a “loser” with a concomitant exacerbation of the very attitudes and behaviours that cause me real concern on K’s behalf in the first place.
Reference to what I consider to be the principles applicable to a decision about parental responsibility will make it clear that an apparent inability for co-parents to consult each other and discuss productively major long-term issues points towards equal shared parental responsibility being contraindicated in a child’s bests interests. Here, I think the parties have very limited current, or likely future, capacity to carry out the consultation and discussion required by the Act (s 65DAC).
But, K is yet young and, with two exceptions to which I will shortly turn, there are no major long-term issues that present themselves for decision either currently or in the foreseeable future. To take away a fundamental right of one parent or the other until K is 18 seems to me to be a considerable interference with that parent’s rights and, indeed, K’s rights; there will be no relevant input from one of her parents.
Each of the parents contend for an order for equal shared parental responsibility (or, perhaps, that the statutory presumption not be rebutted). I am by no means convinced that the requirements of such an order have been thought through or fully appreciated by either of the parents, particularly by reference to the obligations cast upon them in that event by the Act.
The need for K to receive counselling has been squarely identified by Dr M. I agree with her, as, it appears, does the mother. The father, apparently, does not. A consequence of the inability of parents to agree about parenting matters is the abdication of decisions about the care of a child to the court. I consider the mother should have sole responsibility for the making of decisions about the nature and extent of any counselling for K, including the choice of psychiatrist, therapist or other counsellor as considered appropriate. In the outline of relevant principles earlier referred to by reference to earlier decisions of mine, reference is made to the decision of the Full Court in Chappell and Chappell. The passages from that case there cited have particular application here.
Similarly, if there is to be an order for equal, or substantial and significant, time there is the potential for there to be an argument about where K should attend school. Again, I consider that her best interests point to as little disruption as possible. She should continue to attend her current pre-school and any school attached thereto. If none, she should attend the nearest school (geographically) as doing so seems to me to maximise the potential for her to know fellow first-year students.

Equal or Substantial Time and the Decision in MRR v GR

The application of the presumption would see all of the rights, duties and responsibilities with respect to K shared equally. I have determined that K’s best interests demand that one specific aspect of that exercise of parental responsibility should vest with the mother. Axiomatically, then, the presumption is rebutted in K’s best interests.
A decision about orders for time that incorporate findings of best interests are not, then, constrained by the mandatory process required by s 65DAA; the issue of best interests is “at large” see Goode and Goode (2006) FLC 93-286 at 80,899.
Having said that, it would be clear from what I have earlier said that a consideration of “equal time” or “substantial and significant time” looms large as a result because either, in any event, reflect findings earlier made about K’s best interests.
In the recent decision of the High Court in MRR v GR [2010] HCA 4. The joint judgment of five Justices of the High Court held at [13]:
…A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. … [footnote omitted]
Later in the judgment the Court said at [19]:
The evidence before his Honour did not permit an affirmative answer to the question in s 65DAA(1)(b). It follows that there was no power to make the orders for equal time parenting. [emphasis added]
Later, when addressing the Federal Magistrate’s initial order for equal time the Court said: “It could not be an order under s 65D, the statutory criteria (in s 65DAA) not having been addressed”.
The decision of the High Court raises significant issues with respect to the Court’s power in parenting cases.

However whatever might be the ramifications of that decision with respect to the Court’s power – particularly to the extent that s 65DAA confers power upon the Court to make orders separate from the power contained in s 65D – it seems to me plain from the wording of s 65DAA that the power contained within that section (as the High Court has determined it) can only be applicable “if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child”.
In this case I have determined against the parents having equal shared parental responsibility, by reason of the specification of a particular aspect of parental responsibility vesting solely in the mother.
Accordingly, it seems to me that the power to make orders (including an order for “equal time” or “substantial and significant time”) as here, where there is no order for equal shared parental responsibility, is to be found in s 65D of the Act. That is, the consideration of those specific periods of time (or other specific periods of time) comes within the ambit of the power of this court to make “such parenting order as it thinks proper”.

How Do Findings Sound In Orders For Time?

In my judgment, the findings earlier made demand a result whereby K has a full, regular and meaningful relationship with each of her parents. That demands, in turn, that she spends significant periods of time with each.
I consider that the regular absence from her life of one of her parents that the proposals of each of the parties imply is antithetical to her best interests and all the more so when I have little confidence in the capacity and willingness of each parent to promote with their co-parent a relationship which is meaningful to K.
Each parent has, in my view, significant parenting deficiencies, mostly born of tragedy but also born of immaturity, which affect their capacity to parent. Whilst it might be possible to discern one parent as “better” or “worse” than the other in that respect, any such distinction does not, in my view, sound in a diminution in time or the relationship with K with one parent or the other.
I have already identified stability as being an extremely important factor in this case. Stability does not mean no change; it means limiting, or eliminating, changes that have a potentially detrimental effect on K. A significant change in K’s living arrangements is likely to fall into that category; relatively minor changes in her arrangements are unlikely to.
Neither parent’s lives and circumstances present as being inherently more stable than the other – reference should be made in that respect to my comments about the evidence of Ms H and the evidence (and lack of evidence) from the mother about the significant change in her prospective living arrangements arising from the (volatile) breakdown in her relationship with the man posited by her as a future co-carer for K.
On balance, I consider that K should have the benefit of such parenting as each of her parents are able to provide by spending equal amounts of time with each parent.
Such an order effects a change to the arrangements which had been in place for about 14 months to trial but I consider the change to not dramatically affect the stability which I consider to be so important and to provide greater scope for a meaningful relationship between K and her mother. So, too, she should have the opportunity to spend holiday time with each of her parents.
It will be clear from what I have earlier said that I consider it important that K should have the benefit of enjoying the participation of each of her parents on special days, including significant pre-school and school events, her birthday, Mother’s Day, Father’s day and each of her parent’s birthdays. I will order to that effect.
It will also be clear from what I have earlier said that the orders will include an order with the ultimate effect that the mother be solely responsible for that aspect of parental responsibility relating to K’s participation in counselling.
However sad it might be for K, the current state of the parent’s relationship points to the need for them – currently – to have little to do with each other lest conflict should materialise. It is to be hoped that common sense will prevail. The orders will provide for that contingency by providing that written agreement between the parties will override the Orders in so far as the agreement changes them or provides contrary to them.
Pending that, however, it seems to me that the orders need to provide for changeovers to occur with as little contact between the parents as possible. So, too, for a similar reason they need to be more prescriptive than co-operative parenting would otherwise render desirable.
I order accordingly.

I certify that the preceding one hundred and seventy-nine (179) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.

Associate:

Date: 16 April 2010

[2010] FamCA 280

16 April 2010

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Areas of Law

Family Law