Trower and Kirwan
[2014] FCCA 1729
•24 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TROWER & KIRWAN | [2014] FCCA 1729 |
| Catchwords: FAMILY LAW – Child aged six years – interim hearing – each party makes serious allegations regarding parenting capacity of the other – nature of interim hearing – independent children’s lawyer – drug screen testing – best interests. |
| Legislation: Family Law Act 1975 ss.60CA; 60CC; 61DA |
| Applicant: | MS TROWER |
| Respondent: | MR KIRWAN |
| File Number: | ADC 1075 of 2014 |
| Judgment of: | Judge Brown |
| Hearing date: | 24 June 2014 |
| Date of Last Submission: | 24 June 2014 |
| Delivered at: | Adelaide |
| Delivered on: | 24 June 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Fuda |
| Solicitors for the Applicant: | Vicki Lehmann & Associates |
| Counsel for the Respondent: | Mr Laidlaw |
| Solicitors for the Respondent: | Matthew Mitchell |
ORDERS
UPON NOTING that the parties will exchange their mobile contact numbers via their solicitors within twenty four (24) hours.
THE COURT ORDERS THAT:
Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed as soon as is practicable to represent the interests of the child [X] born [omitted] 2008 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.
Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.
Pursuant to section 11F of the Family Law Act the parties attend a family dispute resolution conference at the Family Court of Australia with a family consultant on 14 July 2014 at 2.15 pm, to discuss the care, welfare and development of the child in an endeavour to resolve any differences between the parties in relation thereto. The parties are to telephone the Registry on 1300 352 000 to confirm their attendance.
UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS:
The child live with the mother.
The child spend time with the father as follows:
(a)Each Wednesday commencing 25 June 2014 from after school until 6.00 pm; and
(b)Each Sunday commencing 29 June 2014 from midday until 5.00 pm.
The child is to be exchanged in the foyer of the [H] Police Station when not exchanged at the child’s school.
Each party undertake supervised urine analyse drug screen test at their own cost no later than 5.00 pm this day 24 June 2014 upon the following terms and conditions:
(a)They each shall provide urine samples in the presence of and within sight of the medical practitioner or medical technician who is responsible for submitting the sample for analysis;
(b)The solicitors forward a copy of the results of such tests to the other party’s solicitors and the court as soon as they become available.
The parties be restrained and an injunction is hereby granted restraining them from abusing, denigrating or rebuking the other in the presence or hearing of the child or from permitting any other person to do so or discussing these proceedings with the child or in the presence or hearing of the child or from permitting any other person to do so.
Each party is restrained and an injunction issue restraining them from consuming alcohol or ingesting illicit drugs while the child is in their care or twenty four hours (24) prior to the child being in their care.
The father is restrained and an injunction issue restraining him from having the child medically or psychiatrically examined other than in the case of accident or emergency without the mother’s written consent.
Further consideration of this matter be adjourned to 30 July 2014 at 9.30am.
IT IS NOTED that publication of this judgment under the pseudonym Trower & Kirwan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 1075 of 2014
| MS TROWER |
Applicant
And
| MR KIRWAN |
Respondent
REASONS FOR JUDGMENT
The reasons for judgment were delivered orally immediately following the interim hearing. As will become clear, the proceedings themselves are highly controversial, involving each party making very serious criticisms regarding the parenting capacity of the other.
Given the serious allegations made, I deemed appropriate that an independent children’s lawyer be appointed for the young child concerned. In these circumstances, it is appropriate that the reasons for judgment be transcribed and released to all the parties, including the independent children’s lawyer.
The matter of Trower & Kirwan is listed before me this morning. The applicant in the proceedings is Ms Trower “the mother” and the respondent is Mr Kirwan “the father”. Ms Trower and Mr Kirwan are the parents of [X], who was born on [omitted] 2008.
Accordingly [X] is currently six years of age. I understand that she is in Year 1 at [omitted] Primary School. Last year she was at the kindergarten that is attached to the school.
The parties concerned have been involved with one another for a significant period of time, since prior to [X]’s birth. As such, they clearly they each know each other very well.
In the context of the current proceedings, both the mother and the father have made serious criticisms of the behaviour of the other, both during their relationship and afterwards, particularly regarding the use of illicit drugs.
Both parties acknowledge that they used cannabis during their relationship and also methamphetamines, but currently disagree about the extent of that use and its implications for [X]’s care and safety. It is the mother’s evidence provided to me today that she has not used methamphetamines for three or four years and more recently has been a social user of cannabis only.
It is her case, I think, that the relationship between the parties was initially a happy one, but she asserts that over time Mr Kirwan became more and more involved with amphetamines, which led him to a very serious addiction to the substance, which caused him to become violent towards her and emotionally unbalanced.
Ms Trower does, however, concede that Mr Kirwan knows [X] well and loves her. But it is her case that she has always been the child’s main provider of care, although she has been involved in the workforce from time to time. Essentially, the mother asserts that, due to his drug addiction, the father was not available to properly parent [X].
Mr Kirwan acknowledges the use of amphetamines but denies that he has ever had a serious addiction. It is his case that he has been an infrequent user of drugs. He denies that he has been violent towards the mother and, to the contrary, asserts that it is the mother who has the longstanding drug and emotional issues, which cause her to be emotionally voluble and to strike out violently and provocatively at him.
It is his case that, if he has ever been violent towards the mother, it is only in response to provocation and in circumstances where the situation between the parties was emotionally fraught, as a result of the mother’s behaviour. It is also his case that the mother is not a particularly competent parent or housekeeper and that [X] is not well cared for, when she is in her mother’ care.
In those circumstances, it is his case that during the parties’ relationship he has provided more of the child’s nuts and bolts care than has the mother. It is his case that he has his own health issues which were diagnosed in 2007.
Prior to that time, he was a fit and healthy person, who was studying personal training and kept himself very fit. He is a person with a large physique. It is his case that it would be imprudent for the court to reach any conclusion that just because he is a big person that he is a big, violent person. To the contrary, it is his evidence that he is gentle and kindly by disposition, particularly to [X] herself.
Accordingly, this case creates a commonplace dilemma, for the court, at the interim stage. Essentially, the parties have diametrically opposing views of one another and how they each behaved during their relationship. The mother asserts, in essence, that during the latter stages of the parties’ relationship, she was subject to drug-fuelled coercive and controlling violence from the father.
On the other hand, it is the father’s position that the mother frequently abandoned [X] to his care while she went about her own interests, which were related to partying and drug use. It is his case, that he was [X]’s main provider of care, whilst the mother was drug affected.
At this stage, it is impossible for me to resolve these factual issues definitively. I cannot determine what was the nature of the parties’ relationship, including how responsibilities for [X] were distributed.
It is also impossible for me to ascertain what was the respective drug of the parties. However, it is I think notoriously the case that persons, who acknowledge drug use, for obvious reasons, are prone to underestimate rather than overestimate their drug use, in proceedings such as these.
In addition, I am not able to categorise what was the nature of the violence in the parties’ relationship. The fact there was violence cannot be doubted. The father acknowledges being violent towards the mother. In fact, he asserts that he was so shocked by his behaviour that he consulted a psychiatrist. However, who that psychiatrist was and what was his professional involvement with the father, is at this stage unknown to me.
These difficulties arise because of the nature of interim hearings, which often occur against a background of urgency and where there is a limited amount of time to conduct the hearing in question. As a consequence, there is invariably a dearth of evidence available to the court to determine interim issues.
One of the more significant aspect of evidence, not usually available at the interim stage, is a detailed and objective psychological assessment of the child concerned and, in the form of a family report. So it is in this case.
The case came into court, for the first time on 28 March 2014, on the mother’s application. She had filed her application the previous day and asked for it to be listed urgently. The reason for the urgent listing sought was the return of [X] to her care, on the basis that Mr Kirwan had retained [X] and he represented a threat to her welfare.
It was Ms Trower’s case that, after the parties had separated in December of 2013, [X] had remained in her care and had had no involvement with her father whatsoever until arrangements were made, around about the time of [X]’s birthday on [date omitted], for her ([X]) to spend some time with her father.
It is the mother’s case that the child was not returned to her as had previously been arranged and, in those circumstances, her application was listed urgently. Her affidavit, as I say, painted a picture of a person, in the form of Mr Kirwan, who was out of control in a drug-fuelled state and so, on the mother’s case, was not in a position to take appropriate care of a child of six years of age.
Mr Kirwan appeared at court on his own behalf on 28 March 2014. Due to the shortness of the notice provided to him, he had not been able to obtain independent legal advice. I mean no criticism of
Mr Kirwan now, but he did not present well on that occasion. He was aggressive and argumentative. Given the allegations of serious drug use, this presentation concerned me.
Mr Kirwan asserted to me that he was very concerned about how [X] had been behaving, in an unusual way, since he had assumed her care. He was agitated and told me that he wanted to take her to see a psychologist to try to understand her behaviour and had a referral from his GP to this effect. He was not able to provide any explicit details, as to why he thought [X] was behaving in the way in which she did.
I am not in a position to assess why Mr Kirwan reacted in the way in which he did, but, as I say, his demeanour concerned me. It may well be the case that a combination of nerves and unfamiliarity with the stressful situation in which he found himself provide the explanation as to why he did not present well and fault cannot be attributed for his conduct.
However, of some significance, when combined with Mr Kirwan’s demeanour, was the fact that it was clear to me that he had acted unilaterally, in respect of [X], and decided to retain her contrary to the agreement earlier reached between him and Ms Trower.
In all these circumstances, I did not think it was in [X]’s best interests to remain in her father’s care, largely as I was satisfied that she had been with her mother exclusively since the parties had separated a few months earlier. Accordingly I ordered [X]’s return to her mother’s care.
In addition, I directed that Mr Kirwan file his position, in a formal sense, within 14 days, and, the case was adjourned to 15 April for further hearing. At that stage, it was Mr Kirwan’s case, I think, that [X] was in serious danger in her mother’s care. Certainly, that was the impression he wanted me to have and on that basis the adjournment was not a long one.
In any event, it was my view that it was inappropriate for me to endorse Mr Kirwan’s unilateral action in respect of [X], but I gave him an opportunity to put his position relatively expeditiously through the filing of whatever affidavit material he thought relevant.
However, on 15 April Mr Kirwan was not in the position to put his case - there were apparently issues to do with his legal representation – and in those circumstances, on his application, the time for Mr Kirwan to file his answering material was extended to 5 May and the further hearing adjourned until 8 May.
In the meantime, the proceedings were adjourned once again, but
Mr Kirwan has now filed his answering material. Accordingly, it is now necessary for the court to determine interim or provisional arrangements for [X]’s parenting, pending a more detailed examination of all the relevant evidence at a final hearing.
In the longer term, Mr Kirwan aspires to caring for [X] in what is called an equal time or shared care arrangement. However, he is not pursuing that application now. Rather, as it is his position that as he poses no threat to [X] and is a loving and caring father, he only wishes to be able to see his daughter on regularly defined occasions.
Mr Kirwan agrees that he has not seen [X] since 28 March, which is now around three months ago. In addition, from the date of the parties’ separation in December 2013 he did not see her until her birthday. The mother asserts that that was because he was essentially disinterested in [X]. The father asserts, to the contrary, that the mother was obstructive and unwilling to deal with him. That is yet another area of dispute between the parties.
So in this case, each of the parties asserts that the other has drug issues, is psychologically unstable and has many deficits in respect of parenting insight. In addition, each asserts that he or she is the victim of the other’s violent behaviour. In these circumstances, I think it is appropriate that [X] be independently represented and I will make an order to this effect.
The parties have each said that they want to get around a table together, with an independent expert person, to discuss arrangements for [X]’s care. It would be sensible, if they were able to advance things consensually, so far as [X]’s care is concerned. Whether that is possible, I do not know as yet. But I will make an order for the parties to attend a child dispute resolution conference, which will be on 14 July at 2.15 pm.
Ms Trower’s original affidavit material was hastily prepared and relatively brief. Mr Kirwan’s criticisms of her are serious. In these circumstances, I elected to take some brief oral evidence from her. This is not the usual course in interim hearings, but arose because of the nature of Mr Kirwan’s concerns.
Ms Trower told me that she accepts that Mr Kirwan loves [X] and [X] loves her father. She tells me that [X] asks her, “I wonder what dad is up to.” So there is absolutely no doubt, I think, that [X] knows her father very well indeed and thinks about him from time to time.
How could it be otherwise? The two shared the same household for the vast majority of [X]’s life. Accordingly, it would seem to be the case that, certainly since December 2013, [X]’s life has been turned upside down.
In addition, although I cannot categorise precisely what was the nature of the parties’ relationship with one another prior to that date, it appears to have been a difficult and conflicted one. Necessarily this state of affairs must have some consequences for [X] herself. So she is, I think, a vulnerable child.
Part VII of the Family Law Act deals with orders relating to children. Before making any particular parenting order the court must regard the best interests of any child concerned as the paramount or most important consideration [Family Law Act section 60CA].
The matters which the court must take into account in deciding how a child’s best interests are to be served are set out specifically in the Act at Section 60CC.
Section 60CC creates two classes of consideration which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations.
There are two primary considerations which are set out in Section 60CC(2)(a) & (b). Namely:
(a) The benefit to the child of having a meaningful relationship with both of the child’s parents, and
(b) the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
As a result of the insertion of Section 60CC(2)(a) into the Act the court is now directed in applying the primary considerations to give greater weight to the primary consideration relating to the need to protect children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
Given the importance which the applicable legislation places on the co-involvement, of parents in their child’s life and development, there is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her. That appears in section 61DA.
However, this presumption can be rebutted. In a case such as this one, where there are allegations mutually made of family violence it is, I think, clear that the presumption should not be applied, particularly at this interim stage, where it really is not practicable. On that basis, I am not obliged to consider the child spending either equal periods of time, or significant periods of time with each of his parents.
It is, I think, clearly the case that this presumption should not apply in this particular case, given the polarised nature of the evidence available in the case, from Ms Trower and Mr Kirwan respectively, particularly the evidence relating to family violence.
At this interim stage, I am required to consider the various matters in section 60CC of the Act, particularly the primary consideration relating to the need to protect [X] from being exposed to neglect, abuse or family violence. But I cannot ignore the other primary consideration which is the benefit she is likely to derive from having a meaningful level of relationship with her father.
This illuminates the difficulty in this case. [X] knows her father. I accept that she loves her father and her father loves her. At this point, she has absolutely no relationship with him whatsoever, certainly not a meaningful one, and, in my view, in order to serve [X]’s best interests, there has to be some amelioration of that situation.
On the other hand, [X] has an entitlement to be safe. As I say that is a more important consideration according to the legislation than issues to do with her relationship with her father.
To her credit, Ms Trower does not suggest that Mr Kirwan’s time with [X] should be supervised. She is open to periods of daytime between father and child. And to his credit, Mr Kirwan is not pushing the issue of overnight time at this stage.
As I have already indicated, I am required to approach this case from [X]’s perspective. It is not her fault that this terrible situation has come about. She is a little girl of six. She is not responsible for how the adults around her behave. In addition, I must bear in mind that she is not mature enough to understand what is going on.
When the father presented at court on 28 March, he told me that there was something seriously remiss with [X] and he was trying – and I think this was the words he used – to get to the bottom of it. Today, he has provided me with a very brief report from Dr H, who is the GP to whom he took [X].
Mr Kirwan took [X] to see Dr H on 24 March. The notes indicate that there was a counselling session, between him and the child, which proceeded with and without the father being present.
[X] was described as being guarded. She did not, however, raise any specific concerns regarding what happened when at her mother’s or at her father’s home. The father reported to the doctor that he thought she was shut off emotionally and was not her usual herself.
There was a further report of the child having had a nightmare about a hairdresser cutting her hair and then cutting off her head. It seems to be the case that some thought was given to a more detailed psychological assessment.
The father, in his recent affidavit, asserts that he is concerned that the child has been demonstrating sexualised behaviour. He is concerned about that. From the mother’s perspective, she asserts that the father is intent on discrediting her to serve his own ultimate interests in the case or is in some way misguided about [X]’s presentation. She is concerned that he is intent on creating, by whatever means he can, a case against her which, from her perspective, is likely to be significantly disadvantageous for [X].
What I note from the report is that it is does not indicate that any specific serious concerns were found in respect of the child. In my view, it is not surprising that she was somewhat guarded, given what had happened to her up to that stage. She had been in her father’s care for a short time and had not seen her mother for a few days, when she was taken to see the doctor concerned.
So at this stage, I have come to the view that there is not an unacceptable risk arising for [X] from remaining in her mother’s care. I reach this conclusion primarily because of the impression I have formed of the mother, arising from the brief opportunity I had to ask the mother some questions myself.
In my assessment, she presented well. She told me that [X] is happy and doing quite well at school, eating well and importantly attending [activity omitted], which she likes. She is a child who likes being active and dressing up and dancing and singing. These are all good, normal things for a child of six to do, of course.
So at this stage, I do not think it would be in [X]’s best interests for the court to move too rapidly in changing arrangements for her care. At this juncture, prior to the parties meeting with one another and with the court counsellor, I think there ought to be two occasions of daytime between and her dad with a view to normalising the relationship between the two.
Importantly, I think, [X] has to be satisfied that these arrangements are stable and that they are not going to be upended or changed abruptly. That sort of thing is obviously unsettling for a child.
It seems to me that if Mr Kirwan can collect [X], from her school one afternoon a week, which is what parents very often do, that will be safe and secure for [X] and it also seems to me that it is appropriate that there be some weekend contact.
The Independent Children's Lawyer can have some input into the matter once appointed, and in addition, if he or she thinks it necessary, subpoena documents from relevant medical people.
If there is to be any psychological assessment of [X], it needs to be arranged consensually between the parties or at the direction of the Independent Children's Lawyer for the purpose of these proceedings.
In my assessment, this is a difficult case. I may be wrong in my assessment, and once things are put into some form of structure and the parties begin building some form of trust with one another, it may easily resolve. But I may be wrong in that as well.
One of the aspects, that strikes me about the case, is the polarised positions of the parties. As I have observed to the respective counsel in the case, if there is to be any drug screen testing, it needs to happen today rather than at some undefined point in the future to see if either of the parties has any illicit substance in their metabolism now today.
So I will make an order to that effect and I will also make orders preventing the parties from denigrating or abusing the other in [X]’s presence or discussing the proceedings.
Finally, I will make a formal order restraining each of them from using illicit drugs or alcohol when [X] is in their respective care for 24 hours beforehand.
In reaching these conclusions, I have endeavoured to strike a balance between protective concerns for [X] and her entitlement to have some meaningful level of relationship with her father. I bear in mind that she knows her father well. She does have a relationship with him, clearly.
I am, of course, also concerned about the criticisms that each party makes about the parental capacity of the other, and I am very concerned about issues to do with family violence. In this context, I have endeavoured to put in place, I hope, orders which are proportionate to the degree of risk.
It is inappropriate, I think, that the parties manage [X]’s handover independently. Rather sadly, she must be exchanged at a safe and controlled point, which will be the [H] Police Station.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Brown.
Associate:
Date: 24 June 2014
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