TROWER & KIRWAN
[2015] FCCA 2491
•18 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TROWER & KIRWAN | [2015] FCCA 2491 |
| Catchwords: FAMILY LAW – Final proceedings in respect of child aged seven years of age – mutual allegations of serious drug abuse – allegations of family violence – order for child to be independently represented – mother has failed to appear at final hearing – father seeks orders for equal time – ICL not in favour of such an outcome – best interests – matters for consideration. |
| Legislation: Family Law Act 1975, ss.60B; 60CA; 60CC; 61DA; 65DAA; 91B |
| Trower & Kirwan [2014] FCCA 1729 Taylor v Taylor (1979) 143 CLR 1 B v B: Family Law Reform Act 1995 (1997) FLC 92-755 Russell & Russell & Anor [2009] FamCA 28 MRR v GR (2010) 240 CLR 461 |
| Applicant: | MS TROWER |
| Respondent: | MR KIRWAN |
| File Number: | ADC 1075 of 2014 |
| Judgment of: | Judge Brown |
| Hearing dates: | 13 & 14 August 2015 |
| Date of Last Submission: | 14 August 2015 |
| Delivered at: | Adelaide |
| Delivered on: | 18 September 2015 |
REPRESENTATION
| Counsel for the Applicant: | No appearance |
| Counsel for the Respondent: | In person |
| Counsel for the Independent Children's Lawyer: | Mr Hemsley |
| Solicitors for the Independent Children's Lawyer: | Legal Services Commission of South Australia |
ORDERS
The child of the relationship X born on (omitted) 2008 live with the mother.
The child spend time with the father on the following terms: –
(a)on each weekend from the conclusion of school on the Friday to 4 PM on the following Saturday commencing on 18 September 2015; and
(b)in each other week, on alternate Wednesdays from the commencement of school or 9 AM on the Wednesday until the commencement of school or 9 AM on the following Thursday commencing on (on a date to be specified ; and
IT IS NOTED that there is no provision for school holiday time and it is anticipated that these orders shall continue during any school holiday period; and
(c)on Father’s Day from 4 PM on the Saturday preceding Father’s Day to the commencement of school on the following Monday; and
(d)from 3 PM on 24 December 2015 to 10.00 AM on 26 December 2015 and each alternate year thereafter provided that the child shall be with the mother from 3 PM on 24 December 2016 until 10 AM on 26 December 2016 and each alternate year thereafter.
For the purposes of handover, where handovers are not able to take place at the child’s school, the parties shall register at the Northern Children’s Contact Service and wherever possible handovers shall be conducted at that service.
Those handovers not able to be accommodated in accordance with the directions contained in the preceding paragraph shall take place at a police station to be agreed between them and failing agreement to be (omitted), with both parties at liberty to have an agent attending on their behalf provided that that person is known to the child and in the case of the mother is not Mr B.
Both parties are restrained and an injunction is granted restraining each of them from changing the child’s enrolment from the (omitted) primary school other than by written agreement or by application to this Honourable Court.
Both parties shall be entitled to receive reports, documents and newsletters from the child’s school at their own expense and each party shall do all things necessary to authorise the other to receive same.
Both parties shall be entitled to attend all school activities, sports days, parent teacher nights and the like which parents normally attend.
Both parties are restrained and an injunction is granted restraining each of them from seeking treatment for the child from any psychologist, psychiatrist or counsellor other than may be recommended by the child’s general practitioner in conjunction with both parents.
For the purposes of the preceding paragraph, the parties shall agree upon a general practitioner for the child and in the absence of agreement such doctor as is nominated by the mother.
Both parties shall ensure that wherever possible, the child is treated by that general practitioner or at that doctor’s surgery and both parties shall be entitled to consult with that doctor and obtain information with respect to the child’s health and treatment generally and each party shall do all things necessary to authorise the other to receive same.
Each party shall as soon as practicable advise the other in the event of the child suffering a significant illness or injury or requiring treatment from a specialist or allied health professional and each party shall be entitled to consult with that specialist or allied health professional and obtain information with respect to the child’s health and treatment generally and each party shall do all things necessary to authorise the other to receive same.
Both parties shall be restrained and an injunction is granted restraining each of them from: –
(a)abusing, assaulting or threatening the other of them;
(b)denigrating the other party or their family to the child or allowing anyone else to do so in the presence of the child;
(c)using corporal punishment to punish the child.
The parties shall communicate by communication book or in the event of more urgent correspondence, by text message, and for that purpose each party shall ensure that the other has been provided with their mobile telephone number and they shall keep the other advised forthwith of any changes to their mobile telephone number.
The appointment of the independent children’s lawyer be extended for a period of six months from the date of these orders.
Both parties shall advise the other immediately upon being charged with any criminal offence involving drugs or family violence as defined in the Family Law Act.
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
Introduction
Ms Trower and Mr Kirwan are respectively the mother and father of X, born (omitted) 2008. I will refer to them thus in these reasons for judgment, which are theoretically concerned with final parenting arrangements for X’s care following a hearing, which took place on 13 & 14 August 2015.
I say “theoretically” because the mother did not play an active role in the hearing and has not filed any affidavit material since 1 July 2014, when her then solicitor filed a drug screen test, which indicated that Ms Trower did not have any illicit drugs, in her metabolism, as at 24 June 2014. Ms Trower’s solicitor has subsequently withdrawn.
The case was fixed for final hearing, in Ms Trower’s presence, on 17 December 2014. At this stage, the preparation of a family report was also ordered. Ms Trower attended the required interviews. Other subsequent orders have been served on Ms Trower at her residential address by mail.
Accordingly, although I am satisfied that the mother knows of the final hearing and has apparently elected not to take part in it, there remains a strong possibility that the case cannot be finalised in her absence and therefore any orders made, at this stage, will have a provisional quality about them because of Ms Trower’s lack of contribution into the case.
These proceedings are fundamentally an inquiry into what is in X’s best interests. It is hard to assess those best interests in the absence of any input from one of her parents, particularly if that parent is, as here, is X’s primary carer. However, notwithstanding the absence of the mother, the father is entitled to put his case before the court, which he has done.
Mr Kirwan’s solicitor has also recently withdrawn from the matter. Accordingly, Mr Kirwan has had to represent himself in the proceedings before the court. This was hard for him to do. That he went through with the case, in challenging circumstances, is testimony to his love for X and the strength of his desire to spend time with her and be there for her, as she grows up.
For reasons, on which I will expand in due course, Mr Kirwan’s relationship with X has been significantly curtailed of late and he has only been able to spend time with her, when he has collected her from her school, (omitted) Primary School, with the assistance of staff there, particularly the principal, Mr M.
In this context, it is apparent that Ms Trower is not following orders earlier made by the court, which provide for Mr Kirwan to have more time with X, particularly on weekends. Obviously, Ms Trower is not available to explain to the court why she has behaved in this fashion, which Mr Kirwan finds extremely frustrating.
For all sorts of reasons, Mr Kirwan does not have an easy relationship with authority. He had a difficult and disrupted childhood, which of course, was not his fault. He spent time in institutions, whilst a child, where he was subject to abuse. For understandable reasons, he has no wish to open up, to strangers, about matters which he considers to have happened long ago and to be no-one’s business but his own.
In addition, Mr Kirwan acknowledges that he suffers from a significant level of depression, which he has self-medicated, with alcohol and illicit drugs, particularly cannabis, in the past. He has recently spent time, in prison, following a successful criminal prosecution, against him, in respect of the production of cannabis and possessing cannabis for sale.
Mr Kirwan is now 46 years of age. He has a child, Y, currently 17 years of age, whom he sees regularly. In the past, his relationship with Y has been difficult because of the mistrustful and conflicted relationship, which he has shared with Y’s mother, Ms K.
At present, Mr Kirwan sees his psychiatrist, Dr P regularly and takes antidepressant medication prescribed for him, as and when directed. He also sees a counsellor fortnightly, to whom he was referred by the Royal Commission into Institutional Responses to Sexual Abuse. The counsellor is helping Mr Kirwan deal with complex issues relating to his childhood. It is Mr Kirwan’s evidence that he finds this to be helpful to him.
It is also Mr Kirwan’s position that he has been drug free for many years and successfully gave up alcohol without outside assistance. As such, he has provided evidence to the court to support his assertion that his life is currently in order and things are looking up for him.
For all these reasons, Mr Kirwan believes that X will benefit from spending as much time with him, as possible. He aspires to what is commonly known as a shared care regime for X, with the child living week about with each of her parents.
In all these circumstances, it is the father’s position that it is ironic that his past life has been subjected to rigorous scrutiny, by the court, in a process, which he has found difficult and confronting and not a little aggravating, but the mother, who has the primary care of X, has not been subject to any such examination at all. Rather, it is Mr Kirwan’s position that, in contrast to him, Ms Trower is apparently defying court orders and so preventing him having a proper level of relationship with X.
It is Mr Kirwan’s position that Ms Trower is beset with many problems in her own life, one of which is a propensity to shy away from appropriate professional scrutiny, of both her parenting and other aspect of her life. He characterises her as a person who puts her head in the sand, when difficult issues confront her, including the current matter.
Overall, it is Mr Kirwan’s position that, from time to time, Ms Trower is a compromised parent, who is unable to distinguish her own emotional needs, from those of X. In particular, Mr Kirwan alleges that Ms Trower makes poor relationship choices and has had her own significant issues with drugs, in the past, particularly methamphetamines.
Most significantly, Mr Kirwan asserts, with obvious justification, that Ms Trower is unwilling to support X having a proper level of relationship, with her father, a person who loves her and wishes to play a significant role in her life.
Although the mother elected not to take part in the most recent round of proceedings, in the past, she has sought the court’s assistance, at points of crisis, in her relationship with Mr Kirwan, particularly when disputes have arisen in respect of arrangements for X’s care. From those earlier proceedings, it is possible to gauge something of Ms Trower’s attitude towards Mr Kirwan.
The mother began these proceedings on 27 March 2014. At that time, she alleged that the father was a violent and controlling person, who was subject to uncontrolled fits of rage, which he had directed against her, in the presence of X. In addition, she asserted that Mr Kirwan had an addiction to methamphetamine, which led him to behave, from time to time in a “paranoid” fashion. She described his behaviour thus:
“It was not uncommon for the father to assault me with such force that I would sustain bruising to various parts of my body, including my face. I would have black eyes which I would try and disguise with heavy makeup and sunglasses. I was too fearful to go to the police, fearing repercussions.”[1]
[1] See mother’s affidavit filed 27 March 2014 at paragraph 11
Accordingly, from this evidence and how she has behaved more recently, it seems apparent that the mother asserts that Mr Kirwan represents a risk to her (Ms Trower’s) safety and is a poor role model for X. As such, it would seem that Ms Trower does not believe that X will derive any significant benefits from spending extended periods of time with her father.
As will become apparent, in due course, Ms Trower has not always demonstrated a consistent attitude towards Mr Kirwan. At one stage, ostensibly at least, she indicated to the court an apparent willingness to have a shared care regime for X.
Whether this contradiction in attitude is a result of a power imbalance, in the parties’ relationship, or for some other reason, is a central issue in the case, at this stage, which the absence of Ms Trower renders difficult for the court to resolve.
Needless to say, Mr Kirwan refutes any suggestion that he has ever behaved in a coercive or controlling manner towards Ms Trower. He asserts that she is likely to be influenced against him, by her current partner and others, including Ms K, with whom Mr Kirwan has been in conflict in the past.
In this context, Mr Kirwan restates his position that Ms Trower puts her own emotional needs before those of X. He does concede that currently the parties do not communicate effectively, if at all, with one another. Nonetheless, it remains his submission that a shared care regime can work between the parties and is likely to be the best outcome for X.
The mother and the father are not the only parties to the proceedings. As a consequence of the serious allegations made by both parties and the obvious vulnerability of X, due to her tender years, it was appropriate that she be represented in the case, independently of her parents.
I also considered that such a lawyer, appointed for X, would objectively and independently seek out material and evidence, relevant to each of the party’s parenting skills, particularly in the context of any difficulties each had faced in the past, which perhaps they may not be inclined to volunteer independently.
X’s lawyer is Suzy Derewlany, an experienced solicitor at Legal Aid. She has briefed a barrister, Graeme Hemsley to appear on her behalf. Pursuant to the provisions of the Family Law Act 1975, both Ms Derewlany and Mr Hemsley, are required to consider all the evidence available to them and advocate the position to the court, which they consider will best serve X’s overall interests.[2]
[2] See Family Law Act 1975 at section 68LA
So far as I can ascertain, Ms Derewlany has undertaken her statutory responsibilities diligently. As such she has discovered that the parties are known to both the South Australian Police and Families SA, which is the statutory agency responsible for the care and protection of children in the State of South Australia. Ms Derewlany has also obtained the criminal history of each of the parties.
In particular, Ms Derewlany obtained a transcript of remarks made by Judge Stretton, in the District Court at Adelaide, when sentencing Mr Kirwan, on 8 December 2010, in respect of one count of possessing cannabis for sale and one count of taking part in the production of cannabis. On this occasion, he was sentenced a term of imprisonment of two years, but was eligible for parole after serving nine months.
In his remarks, Judge Stretton referred to a psychiatric report of Dr P and a psychological assessment of Ms W, which had been made available to him. It was Ms Derewlaney’s view that it was likely to be useful to her to read these reports, in the context of her role in these proceedings. It also appears axiomatic that she was troubled by matters raised by the Judge when sentencing Mr Kirwan.
At the commencement of the case, Mr Hemsley informed me that he did not feel that he was in a position to advocate to the court any particular outcome as being obviously in X’s best interests. This was not only because Ms Trower had not taken part in the case, but also because it was his view that, although Mr Kirwan had appeared diligently at court and was obviously desirous of spending time with X, he (Mr Kirwan) had not complied with orders made by the court nor cooperated with directions put to him by Ms Derewlany.
Given the parties’ mutual allegations of drug abuse, raised regularly during the proceedings, both the father and the mother have been ordered to undergo a number of random and supervised drug screen tests. The father has never complied with any of these requests. The mother has complied with one such test, which as previously indicated, was negative for illicit substances.
In addition, up until the commencement of the hearing, Mr Kirwan had apparently steadfastly refused to release any material from either his treating psychiatrist, Dr P or from the clinical psychologist, Ms W. In these circumstances, for self-apparent reasons, Mr Hemsley inferred that there was a strong probability that Mr Kirwan was not being completely frank about his current level of drug use or other problems in his life, which might have implications for X’s proper care.
Mr Kirwan’s position has been that he cannot afford the drug screen testing ordered and resents that he should undergo such a process, when Ms Trower has effectively thumbed her nose at both him and the court, by not attending as required. In addition, he has objected to his sensitive psychiatric and psychological history being made public, particularly given that no such indignity has been extended to Ms Trower.
For complicated reasons relating to the constitutional settlement of this country, the State of South Australia has responsibility for ensuring the care and protection of children, within South Australia, and has authority, in appropriate cases, to become the guardian of any child found to be in need of care.
On the other hand, the Commonwealth of Australia has constitutional responsibility for resolving disputes between parents, regarding care arrangements for their children, pursuant to the provisions of the Family Law Act 1975.
In many cases, and with growing frequency, there is an overlap between these two areas of responsibility and the courts and governments which oversight them. In such circumstances, there is always a concern that a child may inadvertently fall between two stools and significant information held by a State based instrumentality not be provided to this court and vice versa.
Essentially, at various stages during these proceedings, each party has asserted that X is at significant risk of coming to harm in the care of her other parent. In this context, on 6 March 2015, the Department for Families & Communities (Families SA), was invited to intervene in these proceedings, pursuant to the provisions of section 91B of the Family Law Act 1975. The Department has declined that invitation.
In the absence of the Department, the only options available to the court are to place X in the care of either her father or mother or a combination of the two. Given the constitutional issues applicable, any such order cannot be subject to the supervision of any outside agency, such as Families SA.
An organisation like Families SA has resources available to it to provide support to and to monitor families, such as the current one, which for various reasons is likely to be subject to stress, in one form or another, from time to time. This is a significant feature of this case. The court is asked to make a final decision but whatever that decision is, there is a strong probability that circumstances will arise which will render it problematic.
Although Mr Trower has not participated in the court hearing process, she did attend, with X, upon a court appointed expert, who had been tasked to write a family report for the court. This expert was Ms G, a social worker and family consultant.
Ms G has a significant advantage, over me, in this case. She has seen X, with her own eyes and spoken with her. She has seen X interacting with each of her parents. I have not. Accordingly, in all the circumstances of this difficult case, her evidence is important.
Ms G described X as a “confident and friendly child”. X told Ms G, in a manner that was described as “rehearsed”, that she did not want to spend “any time” with the father. Ms G considered that the probability that X had been prompted or coached to say this, to her, by her mother, was high.
As such, Ms G considered that it was likely that there were deficits in Ms Trower’s capacity to support X having a meaningful and satisfactory level of relationship with her father. Ms G also noted some inconsistencies in Ms Trower’s account of having been subject to coercion and control, at the hands of Mr Kirwan, in the past.
In this context, Ms G considered that there was some substance to Mr Kirwan’s claim that the mother provided him with mixed messages in regards to proposed arrangements for X’s care, which were strongly influenced by whether she was or was not in a relationship at any given time.
In summary, Ms G regarded both parties as having problematic aspects to their parenting. In this context, she hypothesised that there was a strong possibility that, at some time or other in the future, each parent was likely to encounter some form of crisis in their life, which was likely to prevent them parenting X effectively for some indeterminate period.
In such circumstances, it was Ms G’s recommendation that it was essential that X have a strong level of relationship with each of her parents, so that if one was unable to provide appropriate care for her, the other could step into the breach. This proposition seems to me to be largely axiomatic.
I reiterate, at this point, that there are no other potential carers for X, apart from her parents. Indeed, from his own personal experience, Mr Kirwan has seen the problems which arise when the state provides institutional care for a child. Clearly, Ms Trower and Mr Kirwan are likely to be the individuals best placed to parent X because of their love for her, provided any personal issues, which they may have are under control.
However, Ms G was emphatically not in favour of the shared care regime proposed by Mr Kirwan. She was of the view that there were too many problems, relating to the parties’ ability to communicate effectively with one another, to make such a regime viable.
Mr Hemsley shares those concerns. He urged the court to decline to make an order for shared care, which the mother had ostensibly supported, at an earlier stage of the proceedings, as he considered that such an outcome would be inconsistent with X’s best interests.
However, regardless of these concerns and the criticisms, which both of the parties are able to level against the other, it is clear to me that X has a mother and father, who each love her very much indeed. It also seems to be the case that she is basically a happy and healthy child, a state of affairs which can only be attributable to her parents, particularly Ms Trower.
These proceedings are directed, as best as is possible, to resolve the issue of what time X should spend with each of her parents and how parental responsibility, for her, should be allocated between the mother and the father.
It is obviously a difficult and complicated case, made more so by the absence of Ms Trower. Regardless of her absence, the court must remain focussed on X’s best interests, which are the paramount concern in the case. X is not to be awarded, like a prize, to the parent who has participated more fully in these proceedings.
Background
Ms Trower was born on (omitted) 1975. I know very little of her personal background. In particular, at the present time, I do not know if she is in the paid workforce or is in some form of relationship. At the time of the family report, in April of 2015, she was involved with a person by the name of Mr B, who is thirty-six years of age. She and Mr B lived in rented accommodation, in the northern suburbs of Adelaide.
The parties agree that they met in (omitted) of 2005. It is the mother’s position that Mr Kirwan became addicted to methamphetamines, when X was about fifteen months of age. This would have been around mid-2009. It is her case that his behaviour, when under the influence of the drug, was violent and unpredictable, but she was too frightened of Mr Kirwan to leave him.
The mother’s evidence, in this regard, has not been subject to cross-examination. The father denies it. Interestingly, the mother concedes that in the first year of X’s life, the parties jointly cared for her, particularly so she could return to work.
It is Ms Trower’s evidence that when X was three months of age, she returned to the workforce, leaving Mr Kirwan primarily responsible for X, until she was eleven months old when she (X) commenced day care. It is the mother’s case that she ceased her employment, at a nearby (employer omitted), in (omitted) 2010, which coincided with the father’s increasing and ruinous use of methamphetamines.
Mr Kirwan is a few years older than Ms Trower. It is his evidence that in the early years of the parties’ relationship, he ran his own (omitted) business. He has long had an interest in (hobby omitted) and ran a (omitted) business in tandem with his other business. Mr Kirwan is a powerfully built man, who would characterise himself as a “gentle giant”.
Regrettably, in 2008, he was diagnosed with kyphosis in his upper spine – a condition commonly known as “swan neck”. The condition has caused him and continues to cause him a significant level of pain. At the same time, he was diagnosed with plantar fascia. These conditions seem to have led to his withdrawal from the workforce. In these circumstances, there is no controversy that Mr Kirwan was significantly involved in X’s care when she was a baby.
The father acknowledges that the relationship between the parties was a turbulent one. However, he attributes these difficulties to the mother’s drug use, rather than his own. The mother asserts that there was a violent incident in early 2010, when she was forced to flee the family home.
The father agrees that the parties separated, but he categorises the separation as being a temporary one, which the mother brought to an end. Affidavit material provided by each of the parties indicates that 2010 was a stressful and difficult year for both of them. This is supported by documents obtained by Ms Derewlany. In this context, it is noteworthy that Mr Kirwan, in his initial affidavit filed with the court,[3] made no reference to his difficulties with the police in respect of the cannabis charges laid against him. It confirms my impression that he is not always frank about his situation.
[3] See affidavit of the father filed 11 June 2014
During 2010, various notifications were made to Families SA, by unidentified persons, in respect of concerns relating to X’s care. These notifications raised concerns relating to the impending appearance of the father before the court for drug offences and alleged that he had “a methamphetamine laboratory” and the mother is “very scared of the father and his violence”.[4]
[4] See annexure B to Ms Derewlany’s affidavit filed 8 October 2014
Mr Kirwan's South Australian Police history indicates that he has convictions for cannabis offences in 1996, 2000 and 2004. In April 2010, it would seem the parties’ home was searched and each of them was charged with cultivating cannabis plant, in an enhanced manner, and the possession of prescribed equipment. Mr Kirwan received a three month term of imprisonment, which was wholly suspended. Ms Trower was fined the sum of $750.00. Her South Australian Police record indicates no prior drug offending.
This offence post-dates Mr Kirwan’s offending, which was dealt with by Judge Stretton on 8 December 2010. The offences dealt with by Judge Stretton came to light on 14 November 2010 when police executed a general search warrant at the parties’ home. Judge Stretton summarised the facts as follows:
“Upon searching the premises police located a significant amount of cannabis. They located six plants, four garbage bags each containing between 50gms and 250gms of female cannabis material and a number of drying trays of cannabis. The total weight of the dried cannabis material was approximately 3kg.
A search of your house located a room which appeared to have been set up as a grow room equipped with hydroponic equipment. A substantial number of plastic money bags was found in the kitchen. $2,680.00 was also found in a sock drawer in your bedroom.”[5]
[5] See annexure A to Ms Derewlany’s affidavit of filed 30 September 2014 being the sentencing remarks of Judge Stretton
As was his entitlement, Mr Kirwan pleaded not guilty to a charge of possessing cannabis for sale but pleaded guilty to production of cannabis. As a consequence, there was a significant delay in the charges being finalised. Ultimately, it would seem to be the case that the jury concerned did not accept the father’s evidence regarding the provenance of the money found in his home.
With the imposition of a non-parole period of 9 months, on Mr Kirwan, in December of 2010, there can be no doubt that from this time onward X was in the mother’s primary care, whilst Mr Kirwan was incarcerated. It also seems to be the position that the parties resumed their relationship upon Mr Kirwan’s release. For reasons which are unclear to me, the mother also did not refer to the father’s imprisonment in her sole affidavit filed before the court. This seems unusual to me.
In his sentencing remarks, Judge Stretton makes reference to Mr Kirwan’s earlier relationship, which produced Y. In his remarks, Judge Stretton eludes to the fact that the breakdown of the relationship between Mr Kirwan and Ms K was extremely acrimonious and led to drawn out legal proceedings, in respect of arrangements for Y’s care, which Mr Kirwan found extremely stressful.
In his evidence to this court, Mr Kirwan confirms that the separation and subsequent family law case were extremely difficult for him and resulted in him becoming estranged from Y for a lengthy period of time. It is his position that Ms K made unfounded complaints of violence against him in order to sabotage his relationship with Y. As a consequence, he felt that he had no alternative other than to walk away from the case.
Ms Derewlany has obtained police records that indicate police officers were called to the premises shared by Mr Kirwan and Ms K, in May of 2001, in respect of a domestic incident. The record indicates that police were told Mr Kirwan had abused Ms K and threatened to kill her. In addition Ms K is recorded as indicating to police that she did not want to take any action against Mr Kirwan because of a fear of reprisal.
Mr Kirwan denies that he was ever abusive towards Ms K. It is his evidence that he introduced Ms K to Ms Trower, in order to ensure that Y and X had some form of relationship with one another.
However, it is his belief that Ms K has subsequently tutored Ms Trower in how to make false allegations of family violence in order to gain advantage in proceedings such as these. In Mr Kirwan’s own words, it was “the worst thing he ever did” to introduce the two women to one another.
The parties agree that the date of their final separation was 30 December 2013, when the mother and X left the parties’ former family home situated at (omitted). Mr Kirwan continues to live at this property, which has a swimming pool and a special little girl’s bedroom, with pink furniture, for X. From his perspective, Mr Kirwan believes X regards this property as being her home.
Mr Kirwan also agrees that he did not see X for a few weeks after the parties separated. However, in mid-(omitted), it was agreed that X would spend time with her father on her sixth birthday, ((omitted) 2014). She was to be returned to her school ((omitted) Primary School) the next morning. She was not returned as had been arranged.
X’s non-return was the catalyst for the mother’s institution of these proceedings. Mr Kirwan had apparently provided X’s school with a medical certificate, indicating that she was unwell and would not be able to return to school until (omitted) 2014. He had not conveyed this information to Ms Trower.
The mother asked for her application, requiring X to be returned to her care forthwith, to be listed urgently before the court. Her affidavit in support of this application is the only substantive evidence, which she has filed in proceedings to date. It is a comparatively brief document of five pages in length. In this affidavit, the mother sets out allegations concerning violence and drug abuse relating to Mr Kirwan from 2007 onwards.
In my view, the court was warranted in paying close attention to the serious allegations raised by the mother, given X’s tender years at the time. Given Ms Trower’s allegations of serious amphetamine abuse, significant family violence and the apparent unilateral actions of the father, it was considered appropriate to accede to Ms Trower’s request and list her application urgently.
The interim hearing of 28 March 2014 was a difficult and tense affair. Ms Trower was represented by her solicitor. Mr Kirwan had not had an opportunity to obtain legal advice. He did not present well. In earlier interim proceedings between the parties, I described his demeanour in court as follows:
“… he did not present well on that occasion. He was aggressive and argumentative. Given the allegations of serious drug use, this presentation concerned me.”[6]
[6] See Trower & Kirwan [2014] FCCA 1729 at [24]
In all these circumstances, particularly the unilateral aspect of Mr Kirwan’s behaviour and his inability to articulate clearly the precise medical reason, which he asserted justified his action, I determined that X should immediately return to her mother’s care but that the case should come back to court quickly, so that Mr Kirwan could formally and more fully put his case, preferably with legal assistance.
Unfortunately, it took Mr Kirwan some time to arrange his preferred legal representation. As a consequence, the case was adjourned from 15 April 2014 to 11 June 2014 and ultimately to 24 June 2014, when a further interim hearing took place in respect of what were the appropriate arrangements for X to spend time with her father pending either settlement of the case or final hearing.
In his affidavit, filed in support of his interim application for X to spend time with him,[7] Mr Kirwan was critical of many aspects of Ms Trower’s parenting and denied either amphetamine use or family violence, on his part, other than in one instance. Mr Kirwan accepted that he had slapped Ms Trower on one occasion, which he had instantly regretted and following which he had sought assistance from Dr P to avoid any similar occurrence in future.
[7] See affidavit of the father file 11 June 2014
So far as Ms Trower was concerned, Mr Kirwan alleged that, on one occasion, he had discovered the mother, with X, in a motel room, which exhibited signs of intravenous drug use. It was his evidence that he noticed bruising on the mother’s hand and wrist, which were indicative of such drug use.
In addition, Mr Kirwan alleged that the mother had frequently displayed signs of mental instability and had threatened suicide. He characterised Ms Trower as having difficulty expressing affection for X and as being a parent who struggled to provide for her needs. Significantly, Mr Kirwan deposed that he had observed X displaying signs of highly sexualised behaviour which he had been advised by Families SA workers might indicate that X had been exposed to sexual activity or pornography.
It was apparently, in the context of this latter behaviour, that Mr Kirwan had determined not to return X to her mother’s care and had arranged for her to be examined by a general medical practitioner, Dr H. Mr Kirwan provided me with a copy of Dr H’s notes, in respect of this consultation, which occurred on 21 March 2014.
The relevant section of the notes is brief and describes X as being guarded. She apparently denied any specific concerns about either her father or her mother’s care of her. Following this consultation, Dr H arranged for a mental health referral for X.
The interim hearing took place about ten weeks after I had ordered the return of X to her mother’s care. In this period, the mother had filed no further affidavit material. In addition, notwithstanding his agitation and his claims that the mother was a negligent parent, it had taken the father a significant period of time to file his answering affidavit material.
After reading this material, I was concerned at the polarised positions of the parties, which were each coloured by serious allegations of drug abuse. It was in response to these allegations that it was ordered that X be independently represented. In addition, the following significant order was made.
“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:
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;
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 rationale for this order was that I considered it important that each party undertake an expeditious drug screen test, without any significant level of forewarning, in order to ascertain whether either had recently ingested any illicit substance.
It is my experience that those who are knowledgeable about the pharmacological effects of various drugs are also likely to be well versed in knowing how to foil random drug screen tests. It was for this reason that I wished the parties to have as little notice as possible of the proposed testing.
To her credit, the mother complied with the order. The negative test result was the last document which she filed in these proceedings. The father did not comply with the order and, as previously indicated, has failed to comply with subsequently made orders in similar terms.
In the light of material, which was disclosed neither by the mother nor the father, particularly Mr Kirwan’s serious drug conviction resulting in the imposition of a prison sentence, the independent children’s lawyer has become increasingly suspicious that Mr Kirwan has refused to undertake any drug screen testing because he has not been candid about his own drug use and remains a significant user of either cannabis or amphetamines.
For obvious reasons, any disquiet suffered by the independent children’s lawyer has not been alleviated by the failure of Ms Trower to participate in these proceedings.
In the absence of updating affidavit evidence from Ms Trower, at the interim hearing of 24 June 2014, I elected to take direct oral evidence from her, particularly as to how X was then faring, both at school and at home. I summarised her evidence as follows:
“… 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 calisthenics, 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.[8]
[8] See Trower & Kirwan [2014] FCCA 1729 at [60] & [61]
After considering the evidence available to me, on 24 June 2014, I determined that X should continue to live with her mother but see her father regularly. I determined that she should spend each Wednesday afternoon, with her father, from after school until 6:00pm, as well as on each Sunday, from midday until 5:00pm.
Given the serious allegations of drug abuse, I was not prepared to allow overnight time, until such time as the independent children’s lawyer had been appointed and there was objective scientific evidence regarding each parent’s drug use. The proceedings were therefore adjourned a comparatively short time, until 30 July 2014. The parties were also directed to attend a family dispute resolution conference prior to the adjournment date.
Both parties attended the child dispute conference but were unable to reach any form of agreement. The family consultant concerned advised the parties of the unsuitability of an equal time shared care arrangement, when there were significant levels of mistrust and poor communication and a lack of cooperation between the parents concerned. It was recommended that a family report be prepared.
When the matter returned to court on 30 July 2014, I was advised that the parties were seeking to embark on a course of mediation at Relationships Australia in respect of issues relating to X. On this date, further orders were made mandating drug screen testing, for each of the parties, at the direction of the independent children’s lawyer. The case was adjourned to 14 October 2014. The mother’s solicitor withdrew from the proceedings approximately one week prior to this date.
On 14 October 2014, it was Mr Kirwan’s position that the parties were communicating reasonably well and had essentially agreed upon a shared care regime for X. Given the information which had come to hand and the absence of compliance with the drug screen testing orders, the independent children’s lawyer was not prepared to agree to this regime, particularly given that Ms Trower was now unrepresented and had comparatively recently made serious allegations of family violence and drug use against Mr Kirwan.
In these circumstances, I elected to refer the parties to a further child dispute conference with a view to teasing out the state of the parties parenting relationship with one another, at that stage. Ms Trower did not attend the conference in question. The family consultant, who convened the conference, Mr T, noted as follows:
From Mr Kirwan’s account it was difficult to gauge the working relationship between the parents, which appears to vary. Mr Kirwan commented that the relationship “can be very good” but “when she’s in a new relationship she shuts me out”.
Mr Kirwan believed that the parents had agreed to equal shared care, but was concerned that Ms Trower may not carry through on that agreement.
Mr Kirwan was clear that he believes shared care would be the most appropriate arrangement for X, and that that is what X wants.
In these circumstances, Mr T reiterated the earlier recommendation that a family report be prepared.
The matter returned to court on 17 December 2014. Ms Trower appeared in person, whilst Mr Kirwan was represented by his solicitor. On this occasion, the case was listed for final hearing on 13 & 14 August 2015. Accordingly, I am satisfied that Ms Trower was properly made aware of the hearing date. In addition, orders were made for the father to spend time with X, overnight on Christmas Day and Boxing Day. In addition, at this stage, the family report was ordered.
Whatever goodwill had previously existed between the parties, by this stage, it was apparent to me that it had significantly evaporated. Mr Kirwan pushed for more time with X, which Ms Trower resisted. Given the paucity of affidavit material filed thus far and the evident fluidity in respect of relations between the parties, I directed each of them to file an updating affidavit, setting out their respective proposals for X’s care prior to the final hearing. The case was adjourned until late January to enable this to occur.
On 28 January 2015, the adjourned date, it was apparent that neither party had filed any further affidavit material. In addition, the mother did not attend at court. Accordingly, the case was adjourned further until 6 March 2015 and the time for each of the parties to set out their prospective proposals for interim orders, in respect of X, was extended to 27 February 2015. The relevant order was served on the mother, by prepaid post, at her last known address, and bore the following notation:
“NOTING the mother has failed to appear today but she was here on the last occasion the matter was before the court and it being further noted that if the mother fails to attend on the adjourned date and the filing of an affidavit the father has leave to apply for final orders upon the filing of his affidavit in accordance with these orders.”
Mr Trower filed an affidavit on 27 February 2015. He has filed no further affidavit material. At this stage, it was his position that he had been having significant overnight time, with X, often for several days at a time. However, at other times, the mother would be unreliable in respect of providing X to him, notwithstanding earlier arrangements reached between them.
In this context, Mr Kirwan asserted that Ms Trower would threaten him with a police report, alleging family violence at his hand, if he did not go along with her demands. Notwithstanding this fraught situation, it was also Mr Kirwan’s position that the parties had notionally agreed, outside of mediation, that they would have a “50/50 care of X starting on 27 October 2014.”[9]
[9] See father’s affidavit filed 27 February 2015 at paragraph 9(h)
As earlier indicated, the orders of 24 June 2014 envisaged Mr Kirwan spending time, with X, from after school on each Wednesday. In his affidavit, Mr Kirwan asserted that the mother had, during the early part of 2015, embarked upon a course of failing to take X to school on each Wednesday, in order to frustrate this order. The mother failed to appear at court on 6 March 2015.
From my perspective, the non-participation of Ms Trower was both unsatisfactory and disturbing, given the strident criticisms which she had previously made of Mr Kirwan. This was the background to the invitation advanced to Families SA to intervene in the proceedings. At this stage, I was also advised that the appointments for the family report were scheduled to occur on 31 March 2015. For obvious reasons, I was anxious that Ms Trower and X take part in the report. This was the background to the following orders being made:
“A. Appointments for the court ordered family assessment are scheduled to occur on 31 March 2015.
B. The court’s expectation that the mother must attend her appointment and bring the child X with her for that appointment and the mother must telephone the court on (omitted) to confirm her attendance and participation.”
1. Further consideration of the matter is adjourned to 27 March 2015 at 9:30am.
2. The mother personally attend court on the next occasion even if legally represented.
3. Pursuant to section 91B of the Family Law Act 1975, Department for Families & Communities (Families SA) is invited to intervene in these proceedings in relation to a child X born (omitted) 2008.
4. A warrant do issue for the arrest of MS TROWER but lie on the file requiring the mother’s attendance at court.
5. The independent children’s lawyer be permitted to request of the child X’s primary school any information they hold concerning the enrolment address of the said child.
6. The father’s solicitor personally serve a sealed copy of these orders on the mother forthwith.”
I have subsequently been told by Mr Kirwan that he placed a copy of this order in X’s school bag, which he considered was the best means to bring it to Ms Trower’s attention. In any event, it is clear that the mother knew of the order, as she attended at court, with a new solicitor, on the adjourned date. At this stage, the importance of her attendance with X, at the family report process was reiterated to her. To Ms Trower’s credit, she did attend upon Ms G.
In the lead up to the final hearing scheduled for August, on three separate occasions, orders were made for Mr Kirwan to undergo a random drug screen test. These orders were made in his presence and hearing. As previously indicated, none of these orders have been complied with. In addition, Ms Trower has failed to attend at court on any subsequent occasion.
It beggars belief that she has overlooked these proceedings. When threatened with a warrant, she did attend at court. In all these circumstances, I consider that there is some validity to Mr Kirwan’s assertion that Ms Trower has a propensity to ignore things, which she finds difficult or confronting.
The court has an obligation to ensure that parties to proceedings before it have an opportunity to participate in those proceedings. Before a person can be adversely affected by judicial order, he or she must be afforded an adequate opportunity to be heard.[10]
[10] See Taylor v Taylor (1979) 143 CLR 1
In this case, I am satisfied that the mother has been given an adequate opportunity to be heard and to file material on her own behalf. However, Mr Kirwan is not entitled to the orders, which he seeks, only as a consequence of Ms Trower’s default. The court’s overriding concern is X’s best interests, which the court must assess, as best it can, on the evidence available to it.
Mr Kirwan is entitled to have his application heard. That application cannot be deferred indefinitely because of the absence of Ms Trower. However, notwithstanding these considerations, the fundamental difficulty of the case remains – swathes of significant evidence, likely to be relevant to X’s best interests, are not available to the court or cannot be properly scrutinised in the absence of Ms Trower.
The legal considerations applicable
Part VII of the Family Law Act 1975 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 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 in section 60CC.
Section 60CC creates two classes of considerations 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.
Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another. They have been referred to, in a number of decisions of the Family Court, as “twin pillars”, the importance of which depends on the circumstance of the case concerned.
However, as a result of the insertion of section 60CC(2A) 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.
These primary considerations are stressed through the provisions of section 60B(1) & (2) of the Act, which contain a list of aims and principles, which the court is directed to apply to ensure that a child’s best interests are met through any orders it makes.
The list of objects or aims of the legislation is set out in s.60B(1). They are as follows:
“(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
The principles, which underpin these objects, are set out in s.60B(2) and are as follows:
“(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations.
Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice, for the child affected, in every case.[11]
[11] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755
In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[12] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[13]
[12] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[13] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.
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 [Family Law Act 1975 section 61DA].
The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm.
Section 61DA deals with the allocation of parental responsibility in respect of a child. It does not deal directly with more practical aspects of a child’s life, particularly the amount and type of time a child spends with his or her parents or where a child is to live. Such matters are dealt with by section 65DAA.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
The expression “substantial and significant time” is defined in the Family Law Act 1975 [section 65DAA(3)]. It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.
More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events, which are of particular significance to the child concerned.
Again, the aim of the legislation is to enhance the parent/child relationship concerned, through mechanisms which enable the child to spend time with a parent in a variety of settings.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
The High Court has recently considered the interplay between the question of whether it is in a child’s best interests to spend equal time with each parent (and substantial and significant time) and the question of whether such outcomes are reasonably practicable, which arises from s.65DAA(1) & (2) of the Act. It has determined that both questions must be answered in the affirmative before an equal time order may be made.
The High Court has held that it is a statutory pre-condition of the making of an equal time order that it is reasonably practicable for such an order to be made. Accordingly courts such as this are directed to consider the reality of the situation which confronts parents and child not merely whether it is desirable that there be equal time spent by the child with each parent. Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.[14]
[14] See MRR v GR (2010) 240 CLR 461 at [13] & [15]
The evidence
Mr Kirwan and Ms G gave evidence before the court and accordingly each was able to be extensively cross-examined by Mr Hemsley. In addition, Ms S issued a subpoena to Mr M, the principal of X’s school and he gave brief evidence, via the telephone.
In addition, I received the reports tendered to Judge Stretton, after Mr Kirwan indicated that he was willing to authorise the District Court to release them to me directly. After considering the reports privately, I came to the view that they were relevant, albeit of a sensitive nature to Mr Kirwan.
In these circumstances, I released the reports to Mr Hemsley, on his undertaking that they would not be provided to any person other than to him and Ms Derewlany. I also indicated that I would store these reports, on the court file, in a sealed envelope, which is not to be opened other than at my direction.
a)Dr P’s report
Dr P’s report is dated August of 2010. Accordingly, it cannot be regarded as being contemporaneous to these proceedings in any way. She reported that she has being seeing Mr Kirwan since September of 2007 and had diagnosed him as suffering from a major depressive illness, with agitation and extreme obsessional rumination, as the most prominent symptoms of his condition.
Dr P further reported that Mr Kirwan had been treated with a combination of medication and therapy in respect of his depression. However, she observed that the social chaos, which she perceived had surrounded Mr Kirwan, over the past two and a half years preceding her report, had not been helpful in providing an environment in which his depression would settle and his life could be reorganised.
Dr P summarised the social problems confronting Mr Kirwan in the following terms:
·Chronic neck pain, exacerbated by stress;
·Tensions regarding his forthcoming marijuana trial, in which Mr Kirwan believed that he had been unjustly treated, because he had been erroneously charged with having marijuana for commercial sale;
·The fact that he had been unjustly charged, in respect of assaulting a person, who had actually damaged his (Mr Kirwan’s) windscreen;
·Acute distress occasioned by issues relating to the family law proceedings in respect of Y, in which his former partner had made untrue claims of domestic violence, against him.
In the context of these various matters, Dr P noted that any improvements in Mr Kirwan’s mood, as a consequence of the prescription of anti-depressant medication, had proven to be marginal. She further noted that he continued to suffer from symptoms of major depression, particularly poor sleep; constant rumination; agitation; and tearfulness.
Clearly, Dr P’s report is considerably out of date. In this context, I accept Mr Kirwan’s evidence that a considerable number of the stressful factors in his life, outlined above, have been alleviated, particularly his outstanding criminal matters and his relationship with Y.
b) Ms W’s report
Ms W, a clinical psychologist, was tasked to provide a forensic psychological assessment of Mr Kirwan to be used in his sentence hearing before Judge Stretton. In her report, Ms W outlined a personal history, for Mr Kirwan, which can only be described as significantly disadvantaged. It is not necessary to outline these matters, with any precision, in these reasons for judgment, other than to say that I accept that Mr Kirwan had a very difficult childhood.
At the time of her report (October 2010) Ms W diagnosed Mr Kirwan as suffering from a longstanding major depressive disorder, which was recurrent and resulted in moderate functional impairment. She also considered that he suffered from a cannabis dependence.
Psychometric assessment indicated that Mr Kirwan had a personality profile marked by avoidance and passive aggression. In this latter context Ms W noted an “abrasive irritability and a tendency to precipitate exasperation and anger in others.”
As with Dr P, Ms W’s report is now many years old. In terms of Mr Kirwan’s then cannabis dependency, Ms W viewed Mr Kirwan as having a significant level of tolerance to the drug, which required him to ingest markedly increasing amounts of it, which would necessarily involve much time, on his part, in obtaining cannabis.
It is Mr Kirwan’s evidence that he has not seriously used cannabis since his release from prison. In addition, in his oral evidence to the court, he deposed that he had only taken methamphetamines, on two or three occasions, over the last three or four years, when he had opportunistically come into contact with a person with access to the drug. It is difficult to ascertain the truth or otherwise of this evidence in the absence of any drug screen testing on his part.
c) Mr M’s evidence
Mr M is the principal of the (omitted) Primary School. In this role, he has no direct classroom experience of X, but knows of her. He described her as a compliant girl, with no behavioural problems. She was happy to engage in play with other children and her academic progress was described as “what we would expect” of a child of X’s age.
Mr M further deposed that there was nothing out of the ordinary in X’s presentation, when she was brought to school by either of her parents. He described her as being “no different from other children”.
Mr M presented as wishing to be studiously even handed in what he reported to the court. For obvious reasons he did not want to appear as favouring one parent over the other. However, I took comfort from his description of X as being a happy child, with no behavioural or emotional problems, which set her apart from other children in her cohort at the school.
d) The family report and the assessment of Ms G
Ms G described Ms Trower as being cooperative, during the assessment process, with a presentation which varied from being guarded and emotional to one characterised by more engagement with her. Significantly, both parents were described as having a sound understanding of X’s developmental needs and her individual characteristics.
In interview, with Ms G, Ms Trower reported that she had recommenced civil communication with Mr Kirwan, in mid-2014, when he had assisted her in the removal of her then partner from her home, after which he had helped her change the locks on the property. The mother also confirmed that, following this incident, the father had spent five consecutive nights, with X, in the September/October 2014 school holiday period.
This account was confirmed by Mr Kirwan and supported his contention that Ms Trower was liable to be cooperative with him, when she was not involved in a relationship. However, it was Ms G’s impression, as a consequence of what both parties told her, that this thawing of relations between the parents had dramatically ceased, when Ms Trower had become involved with Mr B.
Accordingly, Ms G reported that, by the time of the family report interviews, the respective positions of the parties, so far as X was concerned, had reverted to their previously polarised status. The mother renewing her assertions that Mr Kirwan was a violent and dangerous person.
The mother indicated to Ms G that she preferred for X not to spend any time whatsoever with her father because she did not believe Mr Kirwan to be a positive influence in X’s life. On the other hand, Mr Kirwan believed that the mother was “coaching” X to express resistance to spending time with him, in order to permanently alienate the child from him.
When Ms G introduced herself to X, the first thing X said to her was that she did not want to “see” her father because a while ago he had frightened her. Ms G was of the view that this disclosure appeared staged in order to influence the outcome of the family report.
When Mr Kirwan was introduced to X, so that the two could be observed together, Ms G noted the father to playfully grab X for a hug, which caused the child to relax and engage with her father. Mr Kirwan was observed to be very caring in his interaction with X.
Notwithstanding these observations, Ms G did note some conflict in X’s interactions with her father. However, as the session progressed, she willing sat on his lap and laughed with him. As such, it was Ms G’s view that X shared a close and positive relationship with her father.
Ms G also observed X to be comfortable in her interactions with Ms Trower and Mr B, both of whom were described as being attentive towards X. Overall, Ms G observed the child to be more confident and self-assured, with her mother, than with her father.
In interview, X did not seem to Ms G to be entirely spontaneous. This was particularly so in respect of her indication that she did not wish to spend time with her father, which to Ms G’s ear seemed to be a view which was rehearsed rather than spontaneous.
It was also Ms G’s view that X was likely to have been exposed to parental conflict, in the past. Interestingly, X spoke positively of spending overnight time, with her father, in June/July and September/October of 2014, which coincided with the thawing of relations between the parties.
In her evaluation of the family, Ms G did not consider that Mr Kirwan was likely to pose a physical risk to X. She reached this view because of the tension between the mother’s reported fear of Mr Kirwan and her apparent willingness to allow him to spend extended periods of time, with X, when it suited her. In this context, Ms G also noted a lack of collateral evidence to support Ms Trower’s claims.
Overall, Ms G was much more concerned about the potential danger posed to X, arising from her parents’ drug use. In particular, she was concerned about the risk of Mr Kirwan using illicit substances as a means of self-medicating his depression, given what she understood of his prior psychiatric history, which she had obtained from contacting Dr P.
Ms G considered that Ms Trower presented with some understanding of X’s developmental needs. However, her decision to keep the child from school, on Wednesday afternoons, to avoid her spending time with her father was seen as evidence of a compromised parenting capacity for two major reasons.
Firstly, it was not helpful for X to have her routine and school attendances so disrupted; secondly, exposure to such an avoidance mechanism for the solving of problems was not seen as good role modelling for the child.
Ms G described Mr Kirwan as being cognisant of his own personal challenges and issues, relating to his previous mental health problems and drug use. She also considered that Mr Kirwan was likely to be a positive influence in X’s life because of his unconditional love for her, which was likely to lead to X having a sense of security and stability in her life. Given these factors, Ms G considered that it would be in X’s best interests, if she was able to maintain a meaningful level of relationship with her father through spending substantial time with him.
Ms G, for obvious reasons, assessed the parties’ parenting relationship as one marked by significant conflict. I agree with that assessment. It was her view that X was acutely aware of the conflict between her parents. In this context, Ms G recommended that, if at all possible, all handovers of X be structured to avoid the parties coming into direct contact with one another.
Given the level of conflict between Mr Kirwan and Ms Trower, Ms G was not in favour of an equal time arrangement, as she considered it would place an unacceptable level of psychological strain upon X. She also considered that the parties had no effective mechanisms to communicate with one another.
It was also Ms G’s view that, given the mother’s lack of compliance with previous court orders and her likely propensity not to support X’s relationship with her father, it was essential that X spend substantial and significant time with her father to address the risk of child and father being alienated from one another.
These various factors lead to Ms G making the following recommendation:
“…it would be in X’s best interests to live with Ms Trower and, with the support of therapy and provided that Mr Kirwan is able to demonstrate his abstinence from illegal substance, spend time with Mr Kirwan within a graduated programme of time, towards three consecutive nights on each alternate weekend, one overnight period in each week and half of all school holiday periods.”[15]
[15] See family report at page 27
In this context, Ms G recommended a graduated process of extended time, over a period of four months or so, for the father to spend time with X, starting with from after school on Friday until 4:00pm the following Saturday and on each Wednesday from the conclusion of school until the commencement of school the following Thursday.
e) The father’s evidence
Mr Kirwan was subjected to rigorous cross-examination by Mr Hemsley. He completed this cross-examination without losing his composure to any marked degree, which was to his credit. However, this was not an easy process and involved me allowing Mr Kirwan to take regular breaks, in which I asked him to take some deep breaths, so he could regain his composure. My impression was that he was a person often on the verge of blowing up.
The main theme of Mr Hemsley’s cross-examination was the father’s drug use and his refusal to undergo any court mandated drug screen test. In my assessment, Mr Kirwan did not pass through this cross-examination with his credibility unscathed. I accept that he resents being subjected to drug screen testing, when Ms Trower has been so cavalier in respect of the court’s processes and has herself provided only one such drug screen test.
I also accept that the drug screen testing represents a considerable financial impost for him and the process of asking the Legal Services Commission to approve payment for such testing has seemed to him to be labyrinthine. At a deep visceral level, he is angry that he has been subject to such significant intrusions into his life, because Ms Trower began the proceedings in the first place, but she has subsequently failed to follow through with them or resolve them with him.
For all sorts of reasons, relating to his past life, Mr Kirwan is highly suspicious of authority and mistrusts its processes. I can well understand why this would be so. Mr Kirwan himself describes himself as being pig headed, when asked to do something with which he disagrees. Mr Kirwan’s preference would be for him and Ms Trower to resolve issues to do with X away from authoritarian scrutiny.
However, notwithstanding these factors, it seems extraordinary that he has not undergone at least one such drug screen test, given the number of times the importance of such tests has been outlined to him, in the proceedings to date, by both the court and Mr Hemsley.
Mr Hemsley’s submission is that the court must have a sense of disquiet about what he characterises as Mr Kirwan’s lack of candour with the court and his apparent reluctance to let light fall onto to his life and affairs in general. In this context, I accept that many aspects of Mr Kirwan’s life have been extremely difficult and, as such, it is explicable that he should be reticent about exposing them to professional strangers.
In addition, Mr Hemsley was critical that Mr Kirwan had not instituted contravention proceedings to enforce his entitlements to spend time with X, outside the Wednesday evenings, enabled by the staff at (omitted) Primary School. Mr Kirwan responded defensively to this criticism. It is his position that he did not understand such processes and did not know how they would be helpful to him.
In his evidence, Mr Kirwan confirmed that he had been in receipt of Centrelink benefits since 2006. His most significant asset is his home, which cost him approximately $360,000.00. The property is subject to a mortgage in excess of $250,000.00, which requires him currently to pay $1,608.00 per month. This amount has been higher in the past, when interest rates have also been higher. He has also been compelled to rent it out.
At present, Mr Kirwan shares the property with a friend, Mr D, whom he has known for twenty years. It was Mr Kirwan’s evidence that Mr D pays $200.00 rent per week and buys all the food consumed in the household, in exchange for Mr Kirwan preparing all meals. Mr Kirwan also said that Mr D was like an uncle to X and the two were close.
Mr Hemsley put to Mr Kirwan that it seemed highly improbable that he (Mr Kirwan) would be able to maintain the mortgage on the property in all these circumstances and that it seemed that Mr D was an extraordinarily generous person. The implication of Mr Hemsley’s questioning being that it was probable that Mr Kirwan had some other form of income, which was possibly not legitimate.
Mr Kirwan maintained that he was able to make ends meet financially with the assistance of Mr D and through other things such as buying broken down cars, which he fixed up and then sold at a profit. He also indicated that he had financial help from family. Overall this evidence left me with a sense of disquiet. I agree with Mr Hemsley that it is difficult to see the maths adding up satisfactorily over any extended period of time.
The main thrust of Mr Kirwan’s evidence is that he no longer uses any illicit drug regularly and his mental health issues are currently well-controlled. It is his evidence that, since his release from prison, he has only used amphetamines opportunistically, some two or three times, when he has come into contact with a casual acquaintance who had some of the drug which was offered to him. He said that he has had no more than a couple of cones since 2011.
He refuted any suggestion that he has ever represented any threat to X, whom he deeply loves. He deposed that he did not believe that X currently had any emotional problems and assessed her to be well adjusted. It is his evidence that he has no interest in Mr B, a person whom he has never met and about whom X had never said anything of significance.
Mr Kirwan provided a short report from the Department for Correctional Services dated 23 February 2015, which indicated that he had completed phases 1 and 2 of the Making Changes Program, whilst on parole between 7 September 2011 and 7 December 2012. He completed half of the sessions required for phase 3 of the program. From Mr Hemsley’s perspective, the report was seen as somewhat inconclusive.
Recently, X became unwell, on a Wednesday evening, whilst she was in her father’s care. She had a temperature, which Mr Kirwan managed at home, but he did not think it was appropriate for her to return to school the next day. However, he was unable to contact Ms Trower, as he does not have her current telephone number.
In these circumstances, Mr Kirwan had no alternative other than to use the school authorities, as an intermediary, to get a message through to Ms Trower. The school were willing to do this and X returned to the mother’s care later. Mr Kirwan agrees that this is not satisfactory, but sees no way around it, given what he believes is the mother’s unreasonable refusal to communicate with him.
Otherwise, Mr Kirwan was muted in his criticisms of Ms Trower. He deposed that X was sometimes presented in an unkempt fashion. In particular, he was critical of Ms Trower for not combing and brushing X’s long hair. He presented a touching picture of himself tenderly combing X’s hair, when she was in his care.
Mr Kirwan expressed some level of frustration and anger with Ms Trower. He deposed as follows:
“Ms Trower does not care about the court orders, she does what she wants.”
Given the circumstances of the case to date, it is difficult to disagree with this assessment.
In his affidavit material, Mr Kirwan deposed as follows:
“The mother and I will sometimes have excellent communication but often I will simply get no response to messages or calls.
Whilst I acknowledge that communication between parents is important when there is an equal shared arrangement, I say that the current arrangement is simply not working as the mother is refusing to stick to it in any capacity.
I believe that if the arrangement was week about, there is limited capacity for the mother to vary the arrangement on a whim.
I say that X has expressed to me that she wants to live week about.
This is also the arrangement that the mother and I came to in private mediation.”[16]
[16] See father’s affidavit at paragraphs 19-23
Accordingly, it is Mr Kirwan’s positon that a week about arrangement, which would occur through the informal auspices of X’s school, is the best arrangement for her care. Such an arrangement would ensure that X has an equally meaningful level of relationship with each of her parents and would also prevent Ms Trower from arbitrarily changing arrangements without prior reference to Mr Kirwan.
f) The independent children’s lawyers’ position
This case presents many dilemmas, not the least of which is the lack of participation in it by Ms Trower. In his submissions to the court, Mr Hemsley summarised many qualms in respect of Mr Kirwan’s preferred outcome.
He also raised significant misgivings about the court immediately moving to the final stage of Ms G’s recommendations, given the absence of any independent and objective evidence regarding Mr Kirwan’s present level of drug use.
In these circumstances, Mr Hemsley recommends that the court should make the following orders:
“The parties have joint parental responsibility for the child X born on (omitted) 2008.
The child live with the mother.
The child spend time with the father on the following terms: –
each alternate weekend from the conclusion of school on the Friday to 4 PM on the following Saturday commencing on (on a date to be specified) ; and
in each other week, on alternate Wednesdays from the commencement of school or 9 AM on the Wednesday until the commencement of school or 9 AM on the following Thursday commencing on (on a date to be specified ; and
IT IS NOTED that there is no provision for school holiday time and it is anticipated that these orders shall continue during any school holiday period; and
on Father’s Day from 4 PM on the Saturday preceding Father’s Day to the commencement of school on the following Monday; and
from 3 PM on 24 December 2015 to 10.00 AM on 26 December 2015 and each alternate year thereafter provided that the child shall be with the mother from 3 PM on 24 December 2016 until 10 AM on 26 December 2016 and each alternate year thereafter.
For the purposes of handover, where handovers are not able to take place at the child’s school, the parties shall register at the Northern Children’s Contact Service and wherever possible handovers shall be conducted at that service.
Those handovers not able to be accommodated in accordance with the directions contained in the preceding paragraph shall take place at (a yet to be specified) Police Station with both parties at liberty to have an agent attending on their behalf provided that that person is known to the child and in the case of the mother is not Mr B.
Both parties are restrained and an injunction is granted restraining each of them from changing the child’s enrolment from the (omitted) primary school other than by written agreement or by application to this Honourable Court.
Both parties shall be entitled to receive reports, documents and newsletters from the child’s school at their own expense and each party shall do all things necessary to authorise the other to receive same.
Both parties shall be entitled to attend all school activities, sports days, parent teacher nights and the like which parents normally attend.
Both parties are restrained and an injunction is granted restraining each of them from seeking treatment for the child from any psychologist, psychiatrist or counsellor other than may be recommended by the child’s general practitioner in conjunction with both parents.
For the purposes of the preceding paragraph, the parties shall agree upon a general practitioner for the child and in the absence of agreement such doctor as is nominated by the mother.
Both parties shall ensure that wherever possible, the child is treated by that general practitioner or at that doctor’s surgery and both parties shall be entitled to consult with that doctor and obtain information with respect to the child’s health and treatment generally and each party shall do all things necessary to authorise the other to receive same.
Each party shall as soon as practicable advise the other in the event of the child suffering a significant illness or injury or requiring treatment from a specialist or allied health professional and each party shall be entitled to consult with that specialist or allied health professional and obtain information with respect to the child’s health and treatment generally and each party shall do all things necessary to authorise the other to receive same.
Both parties shall be restrained and an injunction is granted restraining each of them from: –
abusing, assaulting or threatening the other of them;
denigrating the other party or their family to the child or allowing anyone else to do so in the presence of the child;
using corporal punishment to punish the child.
The parties shall communicate by communication book or in the event of more urgent correspondence, by text message, and for that purpose each party shall ensure that the other has been provided with their mobile telephone number and they shall keep the other advised forthwith of any changes to their mobile telephone number.
Both parties shall advise the other immediately upon being charged with any criminal offence involving drugs or family violence as defined in the Family Law Act.
Neither party shall apply to vary these orders without leave of the this Honourable Court for a period of two years or unless the parties have attended mediation PROVIDED THAT neither party shall be restrained from bringing a Contravention application or some other form of enforcement application in the event that these Orders are not being complied with.”
Assessing X’s best interests – section 60CC factors
a)The primary considerations
This case began with Ms Trower making very serious allegations concerning her and X’s exposure to high level family violence, which was fuelled by Mr Kirwan’s significant level of amphetamine abuse. However, since that time, Ms Trower has failed to follow through on her allegations and participate further in these proceedings.
This situation causes a dilemma for the court. It is obligated to take all allegations of family violence seriously, but for obvious reasons, the potency of these allegations must be reduced if later their instigator chooses to disengage from the proceedings concerned. Necessarily such a course of action has implications for the currency of such allegations.
Mr Kirwan is a large and powerful looking man. He has the physique of a body builder. From time to time, he has not presented well in court. However, I must be careful not to adopt a stereotypical response to him and assume because he is a big man that he is a big and violent man. However, I would be naïve to think that there is no substance whatsoever to Ms Trower’s allegations, given the history of both parties concerned, which involve illicit drug use and significant volatility between them.
The only objective report of family violence in this case, which Mr Kirwan admits, relates to his slap of Ms K. In her report, Dr P confirms Mr Kirwan’s immediate regret for the incident. In addition, Dr P was not aware of any particular propensity for violence, on Mr Kirwan’s part. As such, she did not believe that X herself was at risk of physical harm from her father.
It seems to me to be more likely than not that the relationship between Mr Kirwan and Ms Trower was frequently a tempestuous one. I also agree with Ms G’s assessment that there is a lack of textual detail to Ms Trower’s disclosure of abuse and a lack of collateral evidence in respect of them. Again, the absence of these details does not automatically mean that there was never any coercive or controlling conduct between the parties.
In this context, Ms G noted that Ms Trower had, from time to time, sent mixed messages about her attitude to Mr Kirwan. In particular, it seems clear that, in the recent past, she has been willing to allow X to spend extended periods of time with her father. In addition, Ms G conjectures that Ms Trower herself may have contributed to the conflict between the parties both before and after their separation.
For obvious reasons, these are difficult issues to assess in Ms Trower’s absence. For his part, Mr Kirwan characterises Ms Trower as being manipulative and avoidant. In my view, there is a significant level of evidence to support this view, given Ms G’s assessment that X had been primed prior to the family report interview and given Ms Trower’s withdrawal from these proceedings.
In all these circumstances, although the court is mandated to give earnest considerations to protecting X from exposure to family violence, in my view, it must approach this issue with some circumspection, given Ms Trower’s failure to follow through on her allegations. The court cannot decline to deal with Mr Kirwan’s application, because of issues of family violence, simply because Ms Trower has raised them, but not pursued them further.
The evidence indicates that X has a meaningful level of relationship with both her parents. I accept Mr Kirwan’s evidence that he was involved with X’s care and nurture, from an early stage. It is clear from Ms G’s evidence that there is a warmth and intimacy between X and her father.
However, it seems more likely than not that X’s more significant relationship is currently that which she shares with her mother. The evidence indicates that, of late, X has had limited time with her father. Notwithstanding the interruption to this relationship, in my view, the evidence available to me indicates that X is likely to benefit from having a proper level of relationship with her father.
The terminology utilised, in the applicable legislation, is of meaningful relationships. For a parental relationship to be meaningful it must have both a qualitative and quantitative component. Relationships need both time and context to develop. Children need to spend time doing a variety of things together, both mundane activities and fun ones. In addition, they need to able to spend sufficient time together so that they are comfortable doing nothing at all together. Psychologists refer to this as hanging out together time.
At present, I hold grave reservations that the relationship between X and her father can develop satisfactorily, if the two only spend one school evening and morning in each other’s company. There is scant little fun time in such a regime and no provision for holiday or special occasion time. This is not a satisfactory basis on which to build the warmth and intimacy required for a meaningful level of relationship.
From Mr Kirwan’s perspective, it is unfortunate that his involvement with X, for any significant periods of time or on special occasions, such as Christmas and birthdays, largely depends on Ms Trower’s attitude to him, from time to time, which is liable to change. I share Mr Kirwan’s concern in this regard and accept his categorisation that Ms Trower is capable of being capricious towards him, at times. Certainly her attitude is not a consistent one.
It is highly unsatisfactory that authorities at the (omitted) Primary School have been placed in the role of arbiter to ensure that X spends some time with her father and there is some semblance of compliance with the court’s order. Ms Trower’s personality does appear to be one which will lead her to seek intervention, from authority, when it suits her, but to avoid authority’s rigorous scrutiny, when it does not. Essentially Ms Trower sought the court’s help, when she needed it, but she has walked away from the process which she instigated, when from her perspective it has outlived its usefulness.
In my view, this is one of the central issues in the case. Essentially, should the court accede to Mr Kirwan’s preferred position, which would allow X to pass between her parents households, via the neutral ground of her school, on a weekly basis, to avoid any caprice on Ms Trower’s part or should it adopt Mr Hemsley’s more cautious and measured approach, which pays some heed to Ms Trower’s concerns, although she herself has not come to court to voice those concerns formally.
The benefit of Mr Hemsley’s approach is that Mr Kirwan would begin to have some Friday evening and weekend time with X but she would have to return to her mother’s care on Saturday afternoon. If she was not so returned, it would be up to the mother to activate any court based intervention, rather than Mr Kirwan.
The chief detriment of this outcome is that it would, to some extent, represent unfinished business for the court. However, to a large extent, in my view, this unfinished nature of the proceeds is somewhat inevitable given Ms Trower’s behaviour to date.
b) Additional considerations
X is seven and a half years of age. Her views have not been exhaustively canvassed, given her age. Given her tender years, I do not consider that any view attributed to her, at this stage, can be a definite factor in the outcome of the case.
As previously indicated, I accept that X has a significant level of relationship with both her parents. In general terms, it is also likely to be beneficial for her to come to know her half-brother Y better, given his significance in Mr Kirwan’s life and the background they share.
Otherwise, I know very little about the significance of any part played in X’s life by other relatives on either the paternal and maternal aspects of her life. As previously indicated, Mr Kirwan paints a positive picture of Mr D in his household. He deposed that he has known Mr D for approximately twenty years and X gets on well with him.
Ms Trower has a personal interest in calisthenics. It seems to be the case that X too participates in calisthenics. Mr Kirwan supports this activity and has, in the past, also taken X to calisthenics. It was useful to me to hear about calisthenics. It added a flavour of normality to X’s life. I was also pleased to hear the evidence from Mr M, which indicated that her school held no concerns about her welfare.
Against this background, Mr Hemsley cautions against the court making any dramatic changes in X’s life, particularly given the incomplete nature of the evidence currently available. In my view, this is a significant consideration, which militates against Mr Kirwan’s proposal. In my view, to move immediately to a shared care regime would be a very significant change for X. It may also precipitate an unpredictable reaction from Ms Trower. In my view, any change for X must be carefully managed.
However, in practical terms, there is no impediment to X spending regular periods of time, with her father, both during school terms and in holiday periods. The parties live comparatively close together, in suburban Adelaide.
The difficulties, which are likely to arise, relate to the parties’ mistrust of one another and their ability to communicate in a way which is focused on the service of X’s best interests. Mr Kirwan is likely to push Ms Trower about parenting issues, whilst she will withdraw or avoid such pressures.
Although these reasons for judgment have concentrated on the differences between the parties, they also have many things in common. On balance, it seems more likely than not that both Mr Kirwan and Ms Trower have had significant issues to do with their use of illicit drugs, in the past.
What is Ms Trower’s current status in respect of such matters is not known to me. She has supplied one negative drug test, prior to her withdrawal from the proceedings. Mr Kirwan has vociferously denied any current drug use on his part but has also consistently refused to subject himself to any independent scrutiny in this regard.
Of special note, Mr Kirwan also has a significant criminal history of involvement with drugs, culminating in his home being raided by police and he himself receiving a prison sentence. In all these circumstances, I think I would be imprudent if I did not consider that the parties’ mutual propensity to utilise drugs did not represent some form of potential threat to X’s welfare.
In addition, both parties must be regarded as being persons who are likely to display a significant vulnerability to societal stress. Mr Kirwan’s evidence regarding his financial circumstances is somewhat opaque. Ms Trower’s personal circumstances are more unclear. Both are likely to face both financial and psychological challenges, into the future from the exigencies of day to day living.
In this context, both parties have, in the past, displayed a flawed understanding of what are the responsibilities incumbent on being a competent parent. Ms Trower has declined to follow court orders and to participate in court proceedings. Essentially, she refuses to allow her life and parenting of X to be subject to a proper level of scrutiny, notwithstanding that it was she who instigated these proceedings in the first place.
In this context, in my view, there is considerable merit to Ms G’s view that X needs to have a strong relationship with each of her parents, so that in the event of the failure or incapacity of one of them, the other will be able to step into the breach with the minimum of trauma being occasioned to X. In my view, as best as I can glean it from the parties’ history together, the probability that one of them may be disabled by some unforeseen crisis cannot be easily discounted.
In these circumstances, in my view, it is incumbent upon the court to put in place the most workable regime to ensure that Mr Kirwan and X’s relationship is strengthened and supported. In this context, I accept that Mr Kirwan is a positive source of love and validation for X.
X herself is likely to be a vulnerable child. It is not helpful to her that her school regime has been interrupted because of the conflict between her parents. Both parties are likely to have a compromised level of insight, from time to time, as to how X’s emotional and educational needs are likely to be best met. However, on balance, Ms G’s view that both parents have a sound enough knowledge of what are X’s developmental needs is likely to be the correct one.
For obvious reasons, finality is preferable in children’s cases. Parents and children need to know where they are in respect of ongoing arrangements. Children benefit from predictability in their routine.
Given Ms Trower’s non-participation in the final hearing, it is difficult to see that the case will not come back to court in some stage in the future. In my view, there remain question marks over both parties, but particularly Ms Trower. Accordingly, it seems more likely than not that any orders made at this stage will be provisional in nature.
For these reasons, I propose to extend the appointment of the independent children’s lawyer for a period of six months from the date of these orders. This is necessary because it is uncertain what will be the outcome of these proceedings and what will be the compliance of Ms Trower to any orders which will be made.
The presumption of equal shared parental responsibility
In this case, at present, I do not consider that it would be in X’s best interests for the presumption of equal shared parental responsibility to be applied to her care. It would be an absurdity to apply the presumption given the non-compliance of Ms Trower with the court’s directions. Accordingly, the court need not consider either equal time or substantial and significant time by reason of the provisions contained in section 65DAA of the Act.
In any event, I do not consider that a week about regime would be in X’s best interests, regardless of the application or otherwise of the presumption. The evidence indicates that the parties have no capacity to communicate with one another or focus in a child centred way on how X can transition between their respective households. I have a real concern that such a regime is proposed because it is perceived, by Mr Kirwan, to be fair to the parents, rather than beneficial for X.
In my view, it is counter-intuitive to impose such an equal time regime because of the failure of Ms Trower to engage in these proceedings. Mr Kirwan is not entitled to his preferred outcome merely because Ms Trower has not fulfilled what was expected of her when she commenced these proceedings. Notwithstanding, the deficit arising from the evidence, due to Ms Trower’s lack of involvement, I must still remain focussed on what I think is in X’s overall best interests.
Conclusions
At this stage, I am satisfied that a week about regime would not be in X’s best interests. The parties have demonstrated absolutely no capacity to share X’s care for any extended period of time and such a regime should not be imposed by default or to penalise Ms Trower because of her non-involvement in the case.
However, the current compromised arrangement cannot be allowed to remain standing merely because of the uncertainty surrounding Ms Trower’s circumstances and because the allegations, which she has raised, are to be regarded as serious and cannot be easily discounted as being without foundation. This is the dilemma of the case. The evidence required to resolve it appropriately is simply not to hand.
Accordingly the case represents unfinished business notwithstanding Ms G’s helpful report, which did have some in-put from Ms Trower. Given that I have ruled out an equal time regime, the next consideration for the court is whether to move immediately to Ms G’s concluded recommendation for X to have the required meaningful level of relationship with her father – namely alternate weekends from Friday to Monday – missing out the intervening steps.
To do so would be to adopt a pragmatic approach. X could be exchanged between the parties, as currently happens on Wednesdays/Thursdays, through the intermediary of her school. The difficulty with this arrangement is that it is likely to be conjectural whether or not Ms Trower will accept it.
In all the circumstances of the case, I have decided to adopt Mr Hemsley’s cautious middle ground approach, but with some modification. I appreciate that this may mean that the Saturday return handover, advocated by Mr Hemsley, may be problematic. It also means that the parties will have to return to court to advance the regime in the manner advocated by Ms G.
However, in my view, this case demands a cautious approach. Having taken the step of having X independently represented, the court should not reject her representative’s submissions without careful consideration. This is a difficult case, which poses many unanswered questions. Notwithstanding my sympathy for Mr Kirwan as a consequence of the non-engagement of Ms Trower with his application, my focus must remain on X’s best interests.
In my view, these interests dictate an incremental and cautious approach to changing arrangements for X’s care. However X needs to spend a reasonable amount of time with her father and it is not appropriate that Ms Trower sabotage this relationship by withdrawing from the court processes, which she inaugurated.
I decided that X should spend each Wednesday and Friday evening with her father and wherever possible be exchanged between the parties at her school to avoid them coming into contact with one another.
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 two hundred and forty six (246) paragraphs are a true copy of the reasons for judgment of Judge Brown
Associate:
Date: 18 September 2015
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