Whalan & Rapallo
[2023] FedCFamC2F 133
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Whalan & Rapallo [2023] FedCFamC2F 133
File number(s): MLC 852 of 2017 Judgment of: JUDGE GLASS Date of judgment: 20 February 2023 Catchwords: FAMILY LAW – PARENTING – best interests of the child – where there are current orders for week about basis – where the father now seeks sole parental responsibility and reduced time with mother – where the child has been exposed to parental conflict – where there is a lack of parental cooperation and communication – where there have been several intervention orders applied for by both parties. Legislation: Australian Passports Act 2005 (Cth), s11
Family Law Act 1975 (Cth), ss 4, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC
Cases cited: Adamson & Adamson (2014) FLC 93-622
Blass & Blass (2022) FLC 94-085
Boyle & Zahur & Anor(2017) FLC 93-814
Carlson & Fluvium [2012] FamCA 32
Goldman & Goldman (2018) FLC 93-830
Hearne v Street (2008) 235 CLR 125
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Muldoon & Carlyle (2012) FLC 93-513
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217.
U v U (2002) 211 CLR 238.
Division: Division 2 Family Law Number of paragraphs: 131 Date of last submission/s: 9 February 2023 Date of hearing: 6-9 February 2023 Place: Melbourne Solicitor for the Applicant: Self Represented Litigant Counsel for the Respondent: Mr Robinson Solicitor for the Respondent: Velocity Legal ORDERS
MLC 852 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS RAPALLO
Applicant
AND: MR WHALAN
Respondent
order made by:
JUDGE GLASS
DATE OF ORDER:
20 FEBRUARY 2023
THE COURT ORDERS THAT:
Parental Responsibility
1.The Father have sole parental responsibility for long term decisions for the child X born in 2015 (the child).
2.In relation to where the child attends secondary school and any long term medical decisions for the child:
(a)the Father will contact the Mother in writing regarding the issue and will provide his views about the issue;
(b)if the Mother wishes to comment on the Father’s proposal she shall do so in writing within 7 days;
(c)the parties will make a genuine effort to come to a joint decision about the issue; and
(d)if no agreement is reached between the parties within 7 days of the Father contacting the Mother pursuant to (a) to (b) above, the Father will make the final decision about the issue and advise the Mother in writing of the decision made.
3.Pursuant to section 11(1)(b) of the Australian Passports Act 2005, the Father is authorised and permitted to apply for, renew and receive Australian passports for the child.
4.The passports shall be held by the Father and released to the Mother no less than 14 days prior to the Mother travelling overseas with the child pursuant to these Orders and the Mother shall return the child’s passports to the Father within 2 days of the child returning from said travel.
Living Arrangements
5.During the school term the child live with the Father and spend time with the Mother:
(a)each alternate Friday from the conclusion of school (or 3:30pm if a non-school day) until the commencement of school on Monday (or 9am if a non-school day); and
(b)on such other times that may be agreed between the parties in writing.
6.During the school term holidays the child live with the Father and spend time with the Mother from 9am on the first Monday following the end of the school term for 7 nights concluding at 4pm on the 8th day thereafter, unless otherwise agreed between the parties in writing.
7.During the long summer holidays the child live with the Father and spend time with the Mother for two 7 night blocks at times to be agreed and failing agreement from 12pm on the Monday following the last week of term and from 12pm on the 3rd Monday of the long summer holidays.
Special Occasions
8.Notwithstanding any other Orders, the child spend time with his parents on special occasions as follows:
(a)for Christmas:
(i)in even numbered years, with the Mother from 12pm on 24 December to 4pm on 25 December and with the Father from 4pm on 25 December to 10am on 27 December; and
(ii)in odd numbered years, with the Father from 12pm on 24 December to 4pm on 25 December and with the Mother from 4pm on 25 December to 10am on 27 December;
(b)until 2025 for Easter:
(i)in even numbered years, with the Mother from the conclusion of school (or 3.30pm if a non-school day) on Holy Thursday to 2pm on Easter Sunday, and with the Father from 2pm on Easter Sunday to 10am the following Tuesday; and
(ii)in odd numbered years, with the Father from the conclusion of school (or 3.30pm if a non-school day) on Holy Thursday to 2pm on Easter Sunday, and with the Mother from 2pm on Easter Sunday to 10am the following Tuesday.
(c)commencing from 2026 for Easter:
(i)in even numbered years with the Mother from the conclusion of school (or 3.30pm if a non-school day) on Holy Thursday to 2pm the following Tuesday; and
(ii)in odd numbered years with the Father from the conclusion of school (or 3.30pm if a non-school day) on Holy Thursday to 2pm the following Tuesday.
(d)for Mother’s/Father’s Day:
(i)with the Mother from 5pm on the day prior to Mother’s Day until the commencement of school on Monday (or 9am if a non-school day); and
(ii)with the Father from 5pm on the day prior to Father’s Day until the commencement of school on Monday (or 9am if a non-school day).
(e)the child spend time with each parent on his birthday if he is not already in that parent’s care as follows:
(i)if the child’s birthday falls on a school day, then from after school (or 3.30pm) until 7.30pm with the parent who has the care of X during this time to feed X dinner; and
(ii)if the child’s birthday falls on a non-school day, then from 2.30pm to 7.30pm with the parent who has the care of X during this time to feed X dinner;
(f)the child spend time with each parent on the parent’s birthday from the conclusion of school (or 3:30pm if a non-school day) the day before the parent’s birthday until the commencement of school (or 9am if a non-school day) on the day following the parent’s birthday.
Changeovers
9.Changeovers occur at the child’s school at school times and at non-school times at the Father’s residence at the commencement of his time with his Mother and the Mother’s residence at the conclusion of such time.
Education
10.Each party be at liberty to:
(a)be listed as the primary emergency contact on the enrolment forms for the child’s school;
(b)communicate with the child’s school and request copies at their own expense of notices, reports, newsletters, photographs and similar correspondence usually provided to parents; and
(c)attend all of the child’s school functions including concerts, plays, fetes and sporting activities usually attended by parents.
11.The parties shall authorise the school:
(a)to first contact the parent in whose care the child is pursuant to these Orders in the event of an emergency;
(b)to provide both parents with all information pertaining to the child; and
(c)these Orders shall be evidence of any authorisation required.
Facetime/Telephone
12.The parties be permitted to communicate with the child by telephone, Facetime or other electronic means as follows:
(a)at such times requested by the child; and
(b)the parent who has the care of the child to facilitate contact to the other parent’s mobile.
13.Unless otherwise agreed to in writing, both parents are to use the parenting App, AppClose, for the purpose of:
(a)providing a handover summary of the child following time with the child including an outline of information relating to the child’s health, school, behaviour and social activities;
(b)communicating all matters relating to the care, welfare and development of the child;
(c)any proposed variation to these Orders; and
(d)to implement a joint calendar regarding the child’s time with each parent and any other commitments and activities;
save that the parents shall communicate by text message or telephone in the case of an emergency or if the App is not accessible.
14.Each party notify the other party in writing of any changes to their email and telephone contact details within 48 hours of any such change and provide 7 days written notice of any proposed change to their home address.
Medical Treatment
15.The Mother be restrained from:
(a)causing the child to attend upon a specialist, psychologist, counsellor or like allied health practitioner (save for his neurologist at the B Hospital) without the express written consent of the Father; and
(b)taking the child to any other medical centre save for C Medical Clinic or such other medical centre as may be nominated by the Father in writing, save in the event of an emergency.
16.The Father advise the Mother of the details of any specialist medical or allied health professional appointments for the child within 48 hours of scheduling the appointment.
17.Each party:
(a)within 2 hours notify the other in writing in the event the child attends upon any medical practitioner with details of diagnosis and any treatment prescribed;
(b)be at liberty to attend all specialist appointments;
(c)be authorised to communicate with and obtain information from any medical or allied health professional the child attends upon including but not limited to the child’s medical file, referrals, correspondence from the either parent, and any other like information; and
(d)these Orders shall be evidence of any authorisation required.
Restraints
18.The Father and Mother, their servants and agents be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling or otherwise denigrating the other party, their partner or family in the presence or hearing of the child and from allowing anyone else to do so;
(b)discussing these proceedings, adult matters or exposing the child to parental conflict within the presence or hearing of the child or allowing anyone else to do so;
(c)exposing the child to all forms of family violence or allowing anyone else to do so; and
(d)speaking disparagingly about the other parent at the child’s school and extra curricular activities.
19.The parents are restrained from enrolling the child in any extra curricular activity which falls during the other parents’ time save with the express written consent of the other parent.
Travel
20.Each party be permitted to travel with the child interstate or outside Australia during times the child is in their care pursuant to these Orders subject to compliance with the following conditions:
(a)for interstate travel, the travelling parent provides the non-travelling parent with 7 days prior notice of their intention to travel;
(b)for overseas travel:
(i)the travelling parent provides the non-travelling parent with 60 days written notice of their intention to travel;
(ii)one month prior to travel, the travelling parent provides the non-travelling parent with the following:
A.copy of the itinerary;
B.copy of airline tickets;
C.evidence of travel medical insurance obtained at their sole expense; and
D.the address at which the child shall be residing and a contact telephone number on which the travelling parent can be contacted.
(iii)the travelling parent will facilitate the other parent having reasonable telephone/skype/email communication with the child whilst they are away.
21.The Father be permitted to take an extended holiday with the child interstate or overseas once a year for a period of up to 21 days (Extended Holiday) subject to compliance with the following further conditions:
(a)the Father provide the Mother with 30 days prior notice of his intention to take the Extended Holiday with the child;
(b)the Extended Holiday must not interfere with the Mother’s time with the children during the Christmas Period pursuant to Order 8(a) herein; and
(c)the Father shall facilitate make up time between the Mother and the child for any time interrupted by the Extended Holiday at times to be agreed between the parties in writing in the two months prior to and/or following the Extended Holiday.
Further Orders
22.The Father is granted permission to provide copies of any Affidavits filed in these proceedings, the Child Impact Report and Family Report prepared by Dr D and any Reasons for Judgment of these proceedings to the Magistrates Court of Victoria relating to all and any intervention order proceedings which relate to the parties and/or the child and/or the Father’s partner.
23.All extant applications be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Whalan & Rapallo has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE GLASS:
The proceedings concern X, born in 2015. X is now 7 years old.
X’s parents separated after a brief relationship in January 2016. In March 2018, X’s parents entered into final consent Orders providing for them to have equal shared parental responsibility for him, for him to live with his mother, Ms Rapallo, and spend time with his father, Mr Whalan, increasing from three to five nights per fortnight from his fourth birthday until high school, when he would commence spending week about time with each of his parents. In September 2021, Ms Rapallo initiated these further proceedings with respect to X, and in March 2022, interim consent Orders were made providing for X to spend week about time with each of his parents.
Ms Rapallo now proposes that the parties have equal shared parental responsibility for X and that he live with his parents on a week about basis. The particulars of her application are contained in a minute of proposed orders sought, filed by her on 1 February 2023.[1] She relies on her affidavits signed by her on 24 January 2023 and 2 February 2023 together with their attachments.[2] She also relies on affidavits filed by Mr E and Ms F and a report from Associate Professor G.
[1] Exhibit A1.
[2] Exhibit A2.
Mr Whalan now proposes that he have sole parental responsibility for X, that X live primarily with him, and spend time with his mother each alternate weekend for 3 nights. The particulars of his application are contained in his Further Amended Response filed on 30 January 2023, as amended in closing address.
CREDIBILITY
As a general proposition, the Court usually refrains from making specific adverse credit findings against litigants if the disposition of a case can legitimately be achieved otherwise.[3] The principle is applicable in this parenting determination, where “adverse credit findings in this decision carry the inherent risk that, rather than bring an end to long-standing conflictual issues, they may be embraced as vindication for the pursuit of further conflict in the future”.[4] General credit findings should only be made if necessary to determine the real issues joined between the parties, and should be soundly based.[5]
[3] Carlson & Fluvium [2012] FamCA 32 (“Carlson & Fluvium”) at [165] quoted with approval in Adamson & Adamson (2014) FLC 93-622 (“Adamson”) at [89-90].
[4] Carlson & Fluvium at [168] quoted with approval in Adamson at [89-90].
[5] Adamson at [90].
Here, unfortunately, the parties’ credibility is central to the issues arising for determination. Ms Rapallo makes serious and repeated allegations of violence, stalking and harassment by Mr Whalan. The Single Expert Witness, Dr D, opines:
There are three possibilities regarding [Ms Rapallo]’s allegations, namely that [Mr Whalan] has stalked the mother (for reasons unknown, particularly considering he is the respondent in these proceedings); that [Ms Rapallo] has knowingly contrived the allegations for strategic advantage, or that the mother presents with a delusional disorder (or some other psychopathology).[6]
[6] Affidavit of Dr D filed 22 December 2022, Annexure 2 (“Family Report”), paragraph 43.
To give some context to the findings I will ultimately make about Ms Rapallo’s specific allegations, I make the following general observations.
Aside from admitting that he mentioned the “C” word in an argument, Mr Whalan denies the allegations that are made against him. There was nothing about the way Mr Whalan gave his evidence that suggested he was minimising, embellishing or exaggerating it. He did not evade answering questions, even when the answers were unfavourable to him. He gave his evidence in a calm and forthright manner without defensiveness, despite being confronted with allegations that were clearly offensive to him. I accept his Counsel’s submission that his evidence was considered, thorough, open and forthright even where it was not of assistance to his case.
Ms Rapallo’s evidence contrasted markedly with Mr Whalan’s. It was internally inconsistent and in many respects fanciful. She was evasive in her answers to questions that she considered unfavourable to her case and also when faced with the internal contradictions in her evidence. Despite repeatedly being directed to answer questions, she either gave answers that were non-responsive, or resorted to phrases such as “I don’t remember”. That answer was fanciful given the detail with which she recalled other events, including social occasions the parties attended during their relationship more than seven years ago.
The inconsistencies in her evidence may be illustrated by the following examples from her evidence:
(a)In March 2022, Ms Rapallo deposed that the Magistrates Court did not accept her signature to revoke an interim Intervention Order in February 2022. So much is inconsistent with the transcript of proceedings on that occasion. She accepted in oral evidence that her written evidence was misleading.
(b)Ms Rapallo disputed the assertion that she had taken X to the Police Station with her a number of times when reporting breaches of Intervention Orders. She later admitted taking X to the Police Station on 1 September 2019 to report such a breach, before finally conceding that she had taken him twice.
(c)Ms Rapallo was asked how many applications for Intervention Orders she had made. She initially said twice. When she was asked whether she was sure, she paused for a moment, and said “three times”. In fact, she has made four such applications and one application to extend an Order.
(d)Ms Rapallo was asked how many times she had sought to report Mr Whalan for breaches of the Intervention Orders, she said “three times”. Annexed to her own affidavit are five Police Statements in her name alleging breaches of the Intervention Orders. I will return to one of those Statements about which Ms Rapallo made the extraordinary allegations both that someone prepared it on her behalf and that someone broke into her house and planted it there.
(e)Ms Rapallo denied that she had said X told her all the time that his father said he wants his mother dead. She gave evidence that X told her that three to four times since April 2021 when he said it for the first time. Inconsistently, she subsequently maintained the accuracy of her evidence that Mr Whalan continuously tells X he wants to see his mum dead. When it was put to her that she was either lying or intended that “continuously” meant four times in two years, she was non-responsive, stating “I can’t assess that.”
(f)Ms Rapallo did not facilitate X’s time with his father on the weekend of 30 April 2020. She initially asserted that it was her weekend. She accepted that she did not suggest to Mr Whalan that he had mixed up the weekends. She did not challenge Mr Whalan’s evidence to the contrary. When it was suggested to her that she had told a lie, she paused for an extended period before giving evidence “I don’t believe it was”.
(g)Ms Rapallo initially claimed to have told Mr Whalan about X’s attendance upon a psychologist in 2022 after his first session with the psychologist. Ms Rapallo accepted that such a communication should be recorded in the parenting application then used by the parties. She then accepted that it was not there. When asked why not, she gave evidence “I didn’t send it.”
Ms Rapallo gave oral evidence in relation to emails to and from her email address that was fanciful. That evidence included the following:
(a)Ms Rapallo denied sending an email to a psychologist on 20 August 2021. She agreed the email was sent from her email address. She claims that the first time she saw an email sent on 20 August 2021 was when she saw it in Mr Whalan’s affidavit. A reply was sent to her on 23 August 2021 referring to the previous email. It is inconceivable that having received that reply, Ms Rapallo would remain unaware of the email from her address on 20 August 2021. Inconsistently with her initial evidence that she did not send the email on 20 August 2021, she gave subsequent oral evidence that she does not recall sending it. When she was asked whether she was honestly saying someone else sent the email or whether she might just have forgotten, she answered that she did not know.
(b)Three emails were sent from Ms Rapallo’s email address to a psychologist on 25 October 2021 between 9:11pm and 9:20pm. Ms Rapallo accepted she sent the first two, but denied sending the third, giving oral evidence that she did not recall that one. She claimed that it contained words that were not hers. When the alternative was put to her, namely that someone else hacked into her email address and sent it, her response was simply “I can’t confirm that.” The psychologist replied to those emails the following morning, including a copy of the third email which Ms Rapallo claims contained words that were not hers. It is fanciful for Ms Rapallo to claim that she was unaware of the emails sent and received by her at that time.
(c)Ms Rapallo also denies having sent an email from the same email address on 8 November 2021. The email was sent to the same psychologist and copied into Ms Rapallo’s then legal representative. The email contains detailed information not only about X and his father, but also refers to conversations between the psychologist and Ms Rapallo. When that detail was pointed out to Ms Rapallo, her evidence changed to “I don’t recall.” It is fanciful to suggest that anybody else could have sent the email from Ms Rapallo’s email address on 8 November 2021.
Despite having regularly reported matters to Police and making repeated applications for Intervention Orders, Ms Rapallo made additional allegations of violence against Mr Whalan for the first time during her oral evidence. Other serious allegations made against Mr Whalan in other contexts were not the subject of Ms Rapallo’s prior evidence in these proceedings. Real doubts arise about the veracity of her evidence.
STATUTORY FRAMEF
The applications fall to be determined by reference to Part VII of the Family Law Act 1975 (Cth) (“the Act”). I am guided by the objects of that Part and the principles underlying those objects.[7] X’s best interests are the paramount consideration.[8] In determining those best interests, I am to consider the matters prescribed by section 60CC of the Act.
[7] Family Law Act 1975 (Cth), s 60B.
[8] Family Law Act 1975 (Cth), s 60CA.
I am to apply a presumption that it is in X’s best interests for his parents to have equal shared parental responsibility for him.[9] The presumption does not apply if there are reasonable grounds to believe either of X’s parents have engaged in child abuse or family violence. It may be rebutted by evidence that satisfies me that it would not be in X’s best interests for his parents to have equal shared parental responsibility for him.
[9] Family Law Act 1975 (Cth), s 61DA.
If I am satisfied that X’s parents should have equal shared parental responsibility for him, I am required to consider whether him spending equal or substantial and significant time with each of his parents is in his best interests and reasonably practicable.[10]
[10] Family Law Act 1975 (Cth), s 65DAA.
It is convenient to first address the section 60CC considerations before turning to the presumption contained in section 61DA and, if applicable, the matters prescribed by section 65DAA of the Act.
PRIMARY CONSIDERATIONS
The benefit to X of having a meaningful relationship with both of his parents
Although meaningful in this context is a qualitative adjective and not a strictly quantitative one,[11] there is no doubt that a reduction in X’s time with his mother from the current seven nights per fortnight to three, will reduce the extent to which he can benefit from a meaningful relationship with both of his parents. In particular, he will not be afforded the opportunity to spend weeknight time with his mother. It is a matter that cannot be given cursory weight, given its primacy in section 60CC, as well as Dr D’s opinion that “ordinarily, it would be best for X to live with each parent on a week about basis”[12] and “this child is best served by living with both his mother and his father”.[13]
[11] Mazorski & Albright (2007) 37 Fam LR 518 at [26]; McCall & Clark (2009) FLC 93-405 at [115], [121].
[12] Family Report, paragraph 44.
[13] Family Report, paragraph 44.
It is nevertheless Dr D’s opinion that X’s best interests are not now served by continuing to spend equal time with each of his parents. I am, of course, not bound by Dr D’s recommendations, “or to accept or reject the whole, or any part of” his evidence.[14] Ms Rapallo sought to impugn Dr D’s report because he had been initially proposed by Mr Whalan. Dr D explained the usual process by which he is engaged, namely that a solicitor makes enquiries of his office to ascertain his availability, and he does not himself field such enquiries. I am not satisfied that the fact Mr Whalan proposed Dr D, or that he was re-appointed over Ms Rapallo’s subsequent objection impugns his report.
[14] U v U (2002) 211 CLR 238 at [83].
In closing address, Ms Rapallo sought to suggest that because Dr D had misspelled her named as “Ms Rapallo” on occasion in his reports, he was involved in a conspiracy against her involving her extended family members. No such allegation was made in evidence and certainly none was ever put to Dr D. I reject the suggestion which is fanciful.
Ms Rapallo otherwise effectively submits that substantial weight ought not be afforded to Dr D’s report given inconsistencies within it. Those inconsistencies essentially arise between matters that Dr D considers to favour X spending an equal time arrangement between his parents and those supporting his ultimate conclusion that X live primarily with Mr Whalan. Merely pointing to those inconsistencies does not of itself undermine Dr D’s ultimate recommendation, which is arrived at after a weighing of those factors.
Whilst it is fundamentally within my discretion to determine what weight ought be given to Dr D’s report,[15] it will carry substantial weight provided it is based on appropriate foundations and that the expert is suitably qualified.[16] No challenge is made to Dr D’s qualifications. I will accordingly consider whether it is based on appropriate foundations and determine the weight to be afforded to it.
[15] Goldman & Goldman (2018) FLC 93-830 at [23].
[16] Muldoon & Carlyle (2012) FLC 93-513 at [105] and the cases there cited.
I will return to the question of whether, in the longer term, X will be able to maintain a meaningful relationship with each of his parents in an equal time arrangement, in light of concerns about Ms Rapallo’s parenting capacity.
The need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Both parties propose that X spend substantial, unsupervised, overnight time with both of his parents. Neither expressly contend that X is at unacceptable risk of harm in the relevant sense in the other party’s care.
However, Ms Rapallo gives evidence that Mr Whalan has poisoned her on three occasions, including as recently as December 2022, threatened to kill her, repeatedly broken into her home, hacked her phone and emails, stalked and harassed her. For the first time during the hearing, she alleged that Mr Whalan had behaved in a sexually inappropriate way with X. If Ms Rapallo’s allegations against Mr Whalan are accurate, they are matters that raise real questions about whether X is at unacceptable risk of harm in his father’s care.
Has Mr Whalan broken into Ms Rapallo’s home?
Annexed to Ms Rapallo’s own affidavit is a Police Statement in her name dated 1 September 2019. She deposes to nothing about the provenance of the document in her affidavit. In cross-examination, when challenged about her evidence of the number of times she has sought to report Mr Whalan to the Police for breaching the Intervention Orders, Ms Rapallo referred to the September 2019 statement and said: “I did not make that statement and my signature is not on that statement.” The following exchange then took place:
MR ROBINSON: The Police just composed that themselves?
[MS RAPALLO]: I did not make that statement, your Honour.
MR ROBINSON: Did the Police just compose that themselves?
[MS RAPALLO]: I don’t know, I did not make that statement.
MR ROBINSON: Where would they have got that information from if not from you?
[MS RAPALLO]: [Mr Whalan] has friends at the [Suburb H] Police Station.
MR ROBINSON: So do you think that they prepared that to trap you, is that what you think?
[MS RAPALLO]: I can’t say, your Honour.
MR ROBINSON: Well, you were on your oath, can you explain to the Court why it was your answer to my question was that [Mr Whalan] has friends at the [Suburb H] Police Station?
[MS RAPALLO]: The only reason [Mr Whalan] would have known that I was at [Suburb H] Police Station… He was not following me. I drove away from [Mr Whalan]’s street. I did not reverse and or drive… Reversing down a street, um, I’m not that good of a driver… I, um, drove [X] away from [Mr Whalan]’s home and parked around the corner. [Mr Whalan] could not have seen me making a phone call to the, um, [Suburb H] Police Station. Um, the officer told me that I should attend the station. I, um, attended [Suburb H] Police Station.
The corollary to Ms Rapallo’s evidence that she did not make the September 2019 statement to Police is that someone composed it on her behalf. When confronted with this reality, her evidence was non-responsive. Her suggestion that Mr Whalan had friends at the Police Station could have no other purpose than to suggest impropriety by members of Victoria Police in composing a statement on her behalf. Despite the more than three years that have elapsed since that time, and a multitude of complaints made by her in a number of contexts, there is no evidence of her previously complaining about any such Police impropriety.
Referring to the same statement, Ms Rapallo subsequently repeated her evidence that “I did not make a statement.” The following exchange then took place:
MR ROBINSON: How is it that there is a statement attached to your affidavit concerning the events on this day?
[MS RAPALLO]: I did not make that statement.
MR ROBINSON: Listen carefully to my question. How is it that there is a statement attached to your affidavit concerning the events of this day?
[MS RAPALLO]: I added the statement.
MR ROBINSON: Pardon?
[MS RAPALLO]: How it is attached? It-it is attached.
MR ROBINSON: How did it come to be there if you didn’t make that statement?
[MS RAPALLO]: I wanted to note that I did not make that statement because it was not signed and I did not speak to the Police. Um, [X] and I entered the Police Station for one minute and then another officer actually came into the room and told me that [Mr Whalan] had attended the station, so [X] and I were escorted away from the Police ... escorted back to my car and we left the sta -- the Police station.
HIS HONOUR: Did you say you were there for thirty seconds?
[MS RAPALLO]: A couple of -- five minutes at the most.
……
MR ROBINSON: So that’s a two page statement, do you agree that you gave all of those details to the Police on that day?
[MS RAPALLO]: I did not, your Honour.
MR ROBINSON: Can you explain to the Court why they’re there, firstly? Why are the details in the statement then?
[MS RAPALLO]: They’re there because I’m showing, that I did not sign that affidavit. Um, and there have been a number of occasions where documents have appeared um, in my home um and documents have been taken from email addresses and also my home.
MR ROBINSON: [Ms Rapallo], paragraph 8 of that Statement says as follows: I sent a text message at 4:00pm to [Mr Whalan] stating: “[X] is capable of walking down your driveway alone to get onto my car. Remain at your door – STAY AWAY from me and my car”.
[MS RAPALLO]: Yes.
MR ROBINSON: Do you - did you send that text message?
[MS RAPALLO]: Yes, and [Mr Whalan] had that…
MR ROBINSON: You told the Police that you sent that text message, didn’t you?
[MS RAPALLO]: Yes, and [Mr Whalan] also had that…
MR ROBINSON: And that’s why they put it in the statement?
[MS RAPALLO]: And [Mr Whalan] also had that text message.
MR ROBINSON: Just listen to me carefully, that’s why they put it in the statement, didn’t they?
[MS RAPALLO]: Yes
MR ROBINSON: And the other details in this statement, it goes on for two pages, you gave those details to the Police, didn’t you?
[MS RAPALLO]: No, I did not.
MR ROBINSON: Ok, can you explain how they typed them in there then?
[MS RAPALLO]: I can’t explain that, your Honour.
MR ROBINSON: Can you explain how you got hold of this statement?
[MS RAPALLO]: It’s in my house, it was in my house and in my documents.
MR ROBINSON: How did it come to be in your house?
[MS RAPALLO]: I’m unaware.
MR ROBINSON: Really? So this unsigned Police statement just turned up in your house? Did it?
[MS RAPALLO]: Yes, your Honour.
Ms Rapallo’s evidence is inherently incredible and inherently improbable. Her initial evidence that she was at the Police station for one minute was fanciful. I do not accept there is any way she could have communicated to Police in a way that they would have been able to make a reliable note of the text message she told them about in one minute. I do not accept her evidence that she was in the Police station for only one, a couple, or five minutes. I also do not accept that the Police statement was concocted on her behalf. It contains information about matters that could only reasonably have been within her own knowledge, including that she called 000, and directions it states were given to her by Police. She conceded in closing address that there was information in the statement that only she was privy to.
Mr Whalan’s evidence about the events of 1 September 2019 were put to Ms Rapallo in cross-examination prior to the following exchange:
MR ROBINSON: It’s a very different story to turning up and only being there for a minute, isn’t it?
[MS RAPALLO]: It was five minutes, and I was not there with [X] for two hours.
MR ROBINSON: Can I suggest to you it was actually a lot more than five minutes, which is why a Police statement was prepared on your instruction?
[MS RAPALLO]: I didn’t sign it, it was not signed, and I did not make that Police statement.
HIS HONOUR: Can you answer the question?
[MS RAPALLO]: It was, it says it was longer than five minutes on the statement.
MR ROBINSON: Do you remember that statement?
[MS RAPALLO]: No your Honour.
MR ROBINSON: Statement taken and signature witnessed by me at 5:49pm on first nine 2019 at [Suburb H]. I agree you haven’t signed it, but that says 5:49pm, and that is nearly two hours after you collected [X]. Can you explain to the Court why the Police would have put that time in there?
[MS RAPALLO]: I can’t explain that, your Honour.
MR ROBINSON: Can I suggest to you the reason they put that time in there is because that’s when you were sitting in the station with them at 5:49pm? Do you agree with that?
[MS RAPALLO]: No I don’t.
MR ROBINSON: And this is the statement that you say you’ve never seen before but it just turned up in your house one day, is that right?
[MS RAPALLO]: Correct.
MR ROBINSON: When did you find it in your house one day?
[MS RAPALLO]: After the fact.
MR ROBINSON: When?
[MS RAPALLO]: I can’t recall, I was going through my notes.
MR ROBINSON: It must have been such a rude shock to you to find that statement there?
[MS RAPALLO]: Yes.
MR ROBINSON: Did you report to the Police that someone had broken into your house and put a statement in there?
[MS RAPALLO]: No.
MR ROBINSON: Why not?
[MS RAPALLO]: Because [Mr Whalan] had previously had my house keys, um and…
MR ROBINSON: So it was [Mr Whalan] who did it, was it?
[MS RAPALLO]: I can’t recall. I don’t know.
MR ROBINSON: Well, by inference, because the first explanation you offer in answer to my question is: “[Mr Whalan] had my house keys.” I assume you mean therefore [Mr Whalan] put the statement in your house?
[MS RAPALLO]: I don’t have evidence along those lines.
MR ROBINSON: But surely, given the amount of times you’ve reported [Mr Whalan]’s behaviour to Police, evidence that he had entered your house and left this statement, this unsigned statement that you’d never seen before, that would have been something you’d be wanting to tell the Police?
[MS RAPALLO]: I tried to avoid going to the Police station, so…
As was pointed out to her, Ms Rapallo’s oral evidence sought to infer that Mr Whalan broke into her home and planted a Police statement there. There is no evidence she has previously either referred to the Police statement being planted in her home, or sought to suggest that Mr Whalan was responsible for doing so. So much is surprising given the “shock” she agreed she experienced finding it. She was given the opportunity to distance herself from the allegation that Mr Whalan was responsible, but failed to do so. Her answer that she tried to avoid going to the Police station was also fanciful given the number of times she has there attended, including with X. I reject her evidence that she did not instruct Police to prepare the statement and that Mr Whalan broke into her home to plant it.
Mr Whalan gave calm, careful and considered oral evidence, that he had attended the Police Station himself at approximately 5:45pm and saw Ms Rapallo leave with X around 6:00pm. That time is approximately consistent with the 5:49pm that appears on the Police statement. Mr Whalan’s oral evidence was consistent with his affidavit evidence. Ms Rapallo was unable to provide any alternative explanation for why that time appears on the statement. I find that it appears there because it was the time the statement was completed with Ms Rapallo and X at the station.
Ms Rapallo also alleges that Mr Whalan broke into her home to photograph messages that Ms Rapallo provides to X to take to school with him. Mr Whalan attached a photocopy of some such messages to his affidavit. The messages were conveyed on small cards that were placed in X’s lunchbox or elsewhere in his school bag. Ms Rapallo makes the allegation despite denying that Mr Whalan has a copy of her house key, accepting there have been no signs of forced entry into her home, and in circumstances where she has closed circuit television cameras installed in her home which have not shown Mr Whalan to have entered her home.
In cross-examination, Ms Rapallo asked Mr Whalan how he had come across the messages, which she described as affirmations. Mr Whalan gave evidence that he found them in X’s lunchbox or school bag after he collected him from school. His explanation is both logical and plausible. I reject Ms Rapallo’s evidence that his explanation was impossible. Absent any explanation from Ms Rapallo as to how Mr Whalan could have broken into her home without trace, I prefer Mr Whalan’s evidence.
Ms Rapallo also gave evidence that she considered Mr Whalan to have stolen the affirmations, her work contract and epilepsy paperwork from her home, as well as damaged her bicycle which was stored behind the couch in her home. She did admit that it was possible she had misplaced the work contract. She gave evidence that the pedals of the bike were loosened, but ultimately accepted that they could have worked themselves loose.
I reject Ms Rapallo’s allegations that Mr Whalan has broken into her home. I consider these to be some of the examples of what Dr D describes as Ms Rapallo’s paranoia and “paranoid ideation”.[17]
[17] Family Report, paragraphs 43 to 45.
Ms Rapallo determined in December 2022 that Mr Whalan broke into her home as a result of seeing the affirmations attached to his affidavit filed that month. There is no evidence she made any enquiries of him as to their provenance, instead applying for another Intervention Order with its consequential deleterious impact on the co-parenting relationship Ms Rapallo tells the Court she is seeking to establish.
Has Mr Whalan stalked, tracked, or interfered with electronic platforms to surveil Ms Rapallo?
Ms Rapallo gave oral evidence that her phone has been hacked for as long as she can remember, despite having changed her phone and number on three occasions. She makes no such allegation in her affidavit evidence. She gave no evidence of facts that would support the conclusion. She has made no such report to Police on any occasion despite her repeated interactions with that agency, and the five statements she has made to them. The allegation was not put to Mr Whalan and I reject it.
Ms Rapallo suggested that because there were logins into her Facebook account at various locations on particular days, Mr Whalan was responsible for doing so. He could not recall his location on a particular day he was asked about, but denied that he had ever logged into Ms Rapallo’s social media accounts. There was nothing about his evidence that caused me to doubt it. Ms Rapallo does no more in her evidence than annex screen shots of login attempts to her social media account. The evidence does not satisfy me that Mr Whalan has accessed her social media accounts.
Ms Rapallo gave oral evidence that Mr Whalan knows where she is by accessing location services on her phone. She averred to that having occurred when X was in hospital in October 2019. When it was put to her that she had changed her phone three times since then, she gave evidence that it was wrong for her to make the suggestion. She also confirmed that she checks that her location services are disabled every couple of days. When she was asked why she alleged that he had access to it and can tell where she is, she simply said “I don’t know”. Her evidence that Mr Whalan has access to her location services was fanciful.
Ms Rapallo asserted repeatedly that Mr Whalan had attended her home and called her from a private number at around midnight on the evening of 9 November 2022. He denied the allegation. Ms Rapallo adduced no evidence of having seen him on that occasion, nor how it is she otherwise identified him. Ms Rapallo’s former solicitors referred to the possibility of issuing a subpoena for Mr Whalan’s phone records, something which was not done. There is no evidence from which I can conclude that Mr Whalan attended Ms Rapallo’s home on 9 November 2022 or called her repeatedly from a private number. I reject the assertion.
Ms Rapallo asserted that Mr Whalan had changed X’s contact details at the B Hospital. He credibly denied having done so, suggesting plausibly that a staff member from child health services might have put his details down to ensure he was involved. Again, there is no evidence supporting Ms Rapallo’s assertion other than her suspicion. I reject Ms Rapallo’s assertion.
Ms Rapallo maintained in oral evidence the truth of the allegations she made in her Intervention Order application filed in December 2022. In that application she said that Mr Whalan followed her all the time when she had her son. Inconsistently, she gave oral evidence that she thought she had written that he had her followed. In the application, she also states that “I believe [Mr Whalan] wants me to feel insecure and unsafe, which is also making our son feel unsecure [sic] and unsafe because we are being followed.”[18] She makes no such allegation to this Court and made no such suggestion to Mr Whalan. She admits she made no mention of it to the psychologist she engaged to assist X in late 2022. She could provide no explanation for why she made those statements to the Intervention Order court. I do not accept the conclusory statements made by Ms Rapallo in relation to Mr Whalan following her, which is unsupported by facts that would permit the Court to reach the same conclusion.
[18] Affidavit of Mr Whalan filed 30 January 2023, page 154.
Ms Rapallo gave oral evidence that Mr Whalan orchestrated someone parking at the end of her driveway and taking photos. That evidence was also fanciful and there is no basis for it. The mere presence of such a person does not establish Mr Whalan orchestrated such an event. The allegation is also inconsistent with her report to Associate Professor G.
Ms Rapallo also baselessly maintains that Mr Whalan stole medical records from a clinic. Following a complaint to the Office of the Australian Information Commissioner, she was advised that handwritten clinical notes which represent only part of the file had been misfiled. She could articulate no basis for her allegation that Mr Whalan stole the records. I reject her evidence.
Has Mr Whalan threatened or attempted to murder Ms Rapallo?
As has been referred to, Ms Rapallo gave inconsistent evidence about X telling her words to the effect of: “Daddy wants Mummy dead.” She gave evidence that when X first told her that, she was driving and pulled over to take a video of him. She agreed that he did not repeat the allegation in the video until prompted by her. She also agreed that X was not distressed at the time of the video. She did not report the matter to Police at the time. Even if what X said to Ms Rapallo is accurately reported, it does not establish that Mr Whalan told X he wanted his mother dead or otherwise threatened to kill her. Mr Whalan’s evidence that he denied having told X that he wanted Ms Rapallo dead was not challenged by her. I am not satisfied that Mr Whalan has suggested to X he wants Ms Rapallo dead. Ms Rapallo herself gave evidence that “I never said I believed that [Mr Whalan] would kill me.”
Ms Rapallo sought to suggest to Mr Whalan that he had sent a text message to the effect that he and X would live happily without Ms Rapallo. Mr Whalan denied that was the inference from the text message which was part of a longer exchange in which he suggested the parties each do their own thing during their time with X. The text message exchange is not in evidence before me. I am not satisfied that Mr Whalan expressed a desire to eliminate Ms Rapallo from X’s life in any way.
In her application for an Intervention Order in December 2022, Ms Rapallo alleges that Mr Whalan had made her a poisoned drink of wine on one occasion and made her “eat his dinner when [Ms Rapallo] knew he had placed it with poison in July 2018”.[19] In oral evidence, she denied that she had in fact eaten the dinner, and maintained the conclusion that she had been poisoned based on there being too much of a salt-like substance on her pork which had been prepared prior to her arrival. So much does not support the conclusion she reached.
[19] Affidavit of Mr Whalan filed 30 January 2023, Annexure 28, page 154.
Ms Rapallo made no allegation of Mr Whalan poisoning her in this Court until giving oral evidence. She then also gave evidence of another occasion when she said Mr Whalan had attempted to poison her in December 2022, again apparently by entering her home without a trace. On her evidence, she reached that conclusion because of a bottle of tonic was half empty and smelt like dishwashing liquid. That evidence also does not establish her conclusion.
Ms Rapallo’s suggestion in oral evidence that the reason she did not tell Dr D of the poisoning allegations was because she did not want to relive the trauma, is fanciful. She relived those very allegations in the making of the Intervention Order application in the same month. Despite maintaining in oral evidence the accuracy of her Intervention Order application, she did not suggest to Mr Whalan in cross-examination that he had poisoned her. Given the absence of any factual basis for the conclusory evidence and the other inconsistencies in Ms Rapallo’s evidence which display a degree of paranoia, I reject her evidence that Mr Whalan has poisoned her on three occasions.
Has Mr Whalan sexually interfered with X?
On 15 November 2022, Ms Rapallo sent a message to Mr Whalan in the following terms:
[Mr Whalan] on a more important serious note, Do you know why [X] doesn’t want kisses and tickles ? But [X] wants to keep his hand on his mothers chest in bed all night more so since April 50/50??
He has been like this since shared 50/50 in April 2022 . [X]’s mother has enforced that No- body - NO- one NOT his mother NOT father - touch [X]’s private parts EVER .. I have reiterated to [X] since he was 4 years old , and old enough to wash himself in the bath and now in the shower.
Would you know why [X] doesn’t want his mother to leave his side ?
Thankfully for [X]’s well-being his mother knows educated high standing community individuals.[20]
[20] Affidavit of Mr Whalan filed 30 January 2023, paragraph 127.
Ms Rapallo was asked in cross-examination why she sent the message. She gave the following evidence:
[X] would get out of the shower and put his towel around - underneath his willy, as he says, and he would come to me with the towel underneath his willy um and his willy outside, and then put his um willy on my leg. And I’m like, why are you doing that [X], like what is going on? You don’t do that to anyone and anything. He’s like, oh, that’s what Daddy does to me. And I said, I was shocked, I felt like vomiting. I um, again, the reason why I um wanted to see a psychologist to find out why [X] would do and say um such a thing um when he would come out of the shower or bath.
She was then asked when the incident occurred, with it being suggested to her it was the same day she sent the message on 15 November 2022. She responded: “It’s been ongoing, since, the last, probably, twelve months.” She subsequently gave evidence that it became more frequent by November 2022.
Ms Rapallo’s evidence suggests that Mr Whalan has repeatedly put his penis on X’s leg. So much would constitute abuse as that term is defined.[21] Mr Whalan denied that he had ever done so. Despite Ms Rapallo averring to it occurring for more than twelve months, she accepted that she did not mention it in any affidavit filed in these proceedings, that she had not mentioned it to Dr D and that she had not raised it with child protection. Extraordinarily, given her explanation, she also accepted that it does not appear in any of the psychologist’s notes. Indeed, completely inconsistently with her explanation, she admitted that the first time anybody had heard about the allegation was on the second day of this trial. I do not accept her evidence.
[21] Family Law Act 1975 (Cth), ss 4(1).
Inconsistency between Ms Rapallo’s allegations and her proposal for X’s time with his father
As previously observed, there is a fundamental inconsistency between Ms Rapallo’s evidence that Mr Whalan has stalked, harassed, sought to kill Ms Rapallo, broken into her home and sexually interfered with X, and her proposal that X spend seven nights each fortnight in his father’s unsupervised care. During her cross-examination, she was given an opportunity to explain the inconsistency. She said “I don’t know”. She was unable to provide any other reconciliation of the inconsistency at any other time during the hearing.
There appears to be only two ways of reconciling Ms Rapallo’s proposal with her evidence of Mr Whalan’s abusive and violent conduct. One possibility is that Ms Rapallo proposes that her son be placed in harm’s way by being exposed to such conduct. The other is that Ms Rapallo’s evidence of the abuse and violence is false and that there is no unacceptable risk of harm to X in his father’s care.
The first possibility is inconsistent with Dr D’s assessment of Ms Rapallo’s parenting capacity. He assesses her as a “competent and loving parent”.[22] That opinion was not challenged and was not called into doubt by any of the other evidence. I accept it, and find that Ms Rapallo is generally a competent and loving parent. I do not accept that a competent and loving parent would propose that X live equally with a murderous, stalking and abusive father who is also a burglar. That conclusion offers further support for my lack of persuasion of Ms Rapallo’s allegations against Mr Whalan.
[22] Family Report, paragraph 40.
On 13 July 2022, Ms Rapallo told the Magistrates Court of Victoria that Mr Whalan “has not provided any financial support or assistance for X, and he - he continues to tell X that he wants to see me dead if he doesn’t see X, and this is the only reason why I have agreed for X to see his father, so he can have a mother as well.”[23] Ms Rapallo gave repeated oral evidence that her statement to the Magistrates Court was true. She makes no such assertion in her affidavit evidence to this Court, nor does she apparently repeat it to any of the professionals upon whom she has attended. The allegation is extraordinary, amounting effectively to an assertion that she has only previously agreed to X seeing his father to avoid being killed. If true, it would amount to coercion and family violence of the most extreme kind. It cannot be reconciled with Ms Rapallo’s current proposal that X spend seven nights per fortnight with his father, nor the fact that Ms Rapallo has been legally represented on several occasions when she has consented to orders that X spend substantial time with his father. That she would fail to mention being coerced in such an extreme way in these proceedings designed to promote X’s best interests, suggests the assertion is fanciful. I am not satisfied that the only reason Ms Rapallo has agreed for X to see his father is to avoid being murdered by him.
[23] Affidavit of Mr Whalan filed 30 January 2023, Annexure 12, page 106.
A lack of acceptance of Ms Rapallo’s allegations is not akin to making a finding that they are in fact untrue. A finding of untruthfulness is a further fact to be found.[24] Here, I am tolerably satisfied that Ms Rapallo’s allegations of family violence and abuse perpetrated by Mr Whalan are untrue. In closing address, Ms Rapallo sought to distance herself from them, repeatedly asserting that she was under pressure during the giving of her evidence. I take that to be an implicit concession that her allegations lack veracity. The fact that many of the serious allegations have not been the subject of complaint by her, despite her multiple Police statements and repeated recourse to calling 000, coupled with her current proposal that X spend week about time with his father, satisfies me that her allegations are untrue.
[24] Blass & Blass (2022) FLC 94-085 at [40].
I am not satisfied that X is at unacceptable risk of harm in the relevant sense in his father’s care.
ADDITIONAL CONSIDERATIONS
Any views expressed by X and any factors (such as his maturity or level of understanding) that are relevant to the weight to be given to his views
X told Dr D that he enjoys the current week-about arrangement and would prefer it to remain in place. X said “it’s good, because I get to spend time with both of them, the exact amount”.[25] Dr D goes on to opine that:
[X] [sic] himself advocates for a continuation of the current parenting arrangement – not for reasons of loyalty or because he has been coached – but because he is developmentally able to live with each parent for an extended block, scaffolded around his school routine, without the rigours of multiple changeovers between two households each week. In ordinary circumstances, there is a strong argument that the current structure for this boy should be continued.[26]
[25] Family Report, paragraph 30.
[26] Family Report, paragraph 41.
Nevertheless, X is only 7 years of age. He is aware that his parents do not like each other. However, it is not suggested that he has any real comprehension of the impact on him of continuing to be exposed, even if only indirectly, to his mother’s paranoia and delusions. If those effects are as significant as Dr D suggests, it provides adequate support for a conclusion that they ought not be outweighed by X’s desire to continue spending week about time with each of his parents.
The nature of X’s relationships with each of his parents and other people, including any grandparent or other relative
It is common ground that X loves both his parents and is loved by them. Dr D opines that X adores his father and has a strong bond with his mother.[27] He assessed X as having a really good connection to both of his parents. He opined that he appears to enjoy his time with both of his parents, something which is extremely positive.
[27] Family Report, paragraph 41.
Nevertheless, Dr D opines that Ms Rapallo has a co-dependence with X, “through which she meets her own emotional needs through” him.[28] Dr D gave oral evidence that such co-dependency might also include Ms Rapallo meeting her esteem needs through X and could create issues for X’s individuation. He describes what would have been a far more sensible solution to address the issue of X’s co-sleeping, namely, for Ms Rapallo to “attend upon a clinician to acquire tools and strategies for X to become more independent”.[29] Ms Rapallo repeatedly refused to engage with Mr Whalan in attempting to address X’s co-sleeping. She gave oral evidence of the wholly ineffective strategy she has employed of using a “sleep music frequency” she found by google search since November 2018. Ms Rapallo has not demonstrated any real commitment to addressing X’s co-sleeping which is consistent with Dr D’s opinion that there are aspects of co-dependence in their relationship.
[28] Family Report, paragraph 44.
[29] Family Report, paragraph 38.
Mr Whalan made multiple appropriate attempts to engage with Ms Rapallo in an effort to address X’s co-sleeping arrangements. Despite those messages which included substantial detail about progress that X was making in Mr Whalan’s care, Ms Rapallo repeatedly failed to engage with him on the topic. She gave oral evidence that she no longer sleeps with X all night and admitted that she has never told Mr Whalan that. So much not only further illustrates her lack of commitment to addressing the issue, but also her failure to adequately engage in any sort of co-operative parenting relationship with Mr Whalan.
The extent to which each of X’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to X, to spend time with him, and to communicate with him
Both parties have relevantly participated in X’s life to the extent they have been given the opportunity to do so.
The extent to which each of X’s parents has fulfilled or failed to fulfil their obligations to maintain him
Ms Rapallo is critical of the absence of child support paid by Mr Whalan at times. That criticism is unwarranted given his unchallenged evidence that he pays child support as administratively assessed. I conclude that Mr Whalan has fulfilled his obligations to maintain X.
The likely effect of any changes in X’s circumstances, including the likely effect on him of any separation from either of his parents, or any other child or other person, including grandparent or other relative, with whom he has been living
Changing X’s circumstances from the existing equal time arrangement, which X himself advocates continuing, to living primarily with Mr Whalan, is a significant change and may well negatively impact upon him. Dr D opines that:
Further change is highly undesirable. It would be distressing for [X] to see his mother less.[30]
[30] Family Report, paragraph 44.
Nevertheless, Dr D considers that such an intervention is required to address concerns including X’s exposure to Ms Rapallo’s paranoia and her co-dependency with X. Ms Rapallo herself makes no alternate proposal to address the substantial concerns Dr D raises, other than by stating in closing address that she will see a therapist. Absent a more detailed proposal from her, it is impossible to assess the likely efficacy of such treatment, something about which Dr D expressed concerns.
Mr Whalan is not proposing to separate X entirely from his mother, merely to reduce their time together in circumstances where he effectively contends that he has a greater capacity to provide for his needs. Ms Rapallo’s misconstrual of his proposal as one that is trying to take X away from her is a further illustration of the persecutory lens through which she interprets matters relating to him.
The practical difficulty and expense of X spending time with and communicating with a parent and whether that difficulty or expense will substantially affect his right to maintain personal relations and direct contact with both parents on a regular basis
It is not suggested that there are any practical difficulties or expenses attendant upon X spending time and communicating with his parents.
The capacity of each of X’s parents and any other person, including any grandparent or other relative of X, to provide for X’s needs, including emotional and intellectual needs
Ms Rapallo alleged that Mr Whalan has withheld X’s medication from him. Inconsistently with that assertion, she gives evidence that Mr Whalan forgot X’s medication on a couple of occasions. I am not satisfied that Mr Whalan deliberately withheld X’s medication. The evidence on the whole satisfies me that Mr Whalan is capable of providing for the totality of X’s needs.
As I have already observed, X’s needs are also generally met by Ms Rapallo. However, Dr D opines, “[w]here there is more cause for concern is around X’s psychological and emotional wellbeing in the care of his mother.”[31] Dr D goes on to observe the following:
Her unnecessary exposure of this child to doctors and psychologists, without input from the father, was ill advised. Her repeated questioning of the child is likely to have engendered confusion, psychological burden, and distress. Through her own anxiety and lack of recognition about the benefit of [Mr Whalan]’s involvement, she has probably created a level of anxiety and sense of division in the child. There are the notes in the bag (including around being safe); the refusal to allow [X] to go to school camp; the recurring reports to CPS and police; the discussion about how much she misses him; the ongoing co-sleeping with a primary school aged boy. None of this benefits the child.[32]
[31] Family Report, paragraph 40.
[32] Family Report, paragraph 40.
Ms Rapallo has repeatedly and unnecessarily, exposed X to the Police. She took him with her to make complaints in relation to Mr Whalan’s alleged breach of Intervention Orders. She requested a welfare check on him while he was in his father’s care at a time when she could have no legitimate concerns about his safety. She exposed him to phone calls to 000 despite there being no immediate threat to her safety. Contrary to Court Orders, she has taken him to the Police Station for changeovers, including on Christmas Day, on her evidence because she “wanted a harmonious exchange”. To unilaterally change X’s changeover location to a Police Station in circumstances where I am not satisfied there was any risk to her or X’s safety, demonstrates a very poor capacity to shield X from unnecessary conflict between his parents and minimise his exposure to all of the other possible interactions that might be observed at Police Stations. That Ms Rapallo did not provide Mr Whalan with prior notice of her unilateral change to the changeover location, also added unnecessarily to X’s exposure to conflict between the parties given Mr Whalan’s subsequent delay in attending the previously unannounced changeover location.
My findings that Ms Rapallo’s allegations against Mr Whalan are false, raise for consideration the alternate explanations offered by Dr D for those allegations, namely that “Ms Rapallo has knowingly contrived the allegations for strategic advantage, or that the mother presents with a delusional disorder (or some other psychopathology)”.[33] Dr D was not engaged to undertake a psychological assessment of Ms Rapallo and recommended that she be independently assessed. Ms Rapallo obtained a psychiatric assessment from Associate Professor G who opines that Ms Rapallo is not suffering from any “diagnoseable psychiatric condition, according to the DSM-5 diagnostic criteria”.[34] In oral evidence, Associate Professor G maintained that even if the allegations made by Ms Rapallo were false, he did not consider she suffers from a delusional disorder.
[33] Family Report, paragraph 43.
[34] Report of Associate Professor G filed 1 February 2023, page 6.
Although Associate Professor G agreed with the binary alternatives posited by Dr D in the event Ms Rapallo’s allegations are unproven, Dr D in oral evidence opined that it could be a combination of both that contribute to Ms Rapallo’s false allegations. Given those alternatives are not mutually exclusive, I consider it unnecessary to determine whether or not Ms Rapallo does in fact suffer from a psychiatric condition. I also consider it unnecessary in circumstances where I am not being asked to require Ms Rapallo to undertake any form of mental health treatment. Whatever the aetiology, it is the impact of Ms Rapallo’s delusional and paranoid beliefs about Mr Whalan on his parenting of X, that is central to the issues to be determined by the Court.
Dr D raises concerns in reports about the longitudinal effect of X being raised in a paranoid environment. He considers there to be a paranoid and persecutory dimension to Ms Rapallo’s presentation. He gave oral evidence that he considers it extremely unlikely that X will not be infused, to some degree, with his mother’s anxiety. He went on to say:
The mother is anxious, she’s concerned, she doesn’t see um the child as content and happy and well with the father. She believes the child should be predominantly in her care…. She won’t give up on [X]. She sees it as a battle to be won and-and to suggest that that’s not going to be deposited, very subtly, in this child, cumulatively, over a matter of years, is entirely erroneous, and-and in my forensic experience, highly improbable.
He observes that “[a]s Mr Whalan reports, X is wary, aloof and guarded when he returns after a week with his mother, which is entirely predictable when he is infused with messages of risk and threat.”[35] Although Dr D gave oral evidence that X’s presentation to him was unremarkable and he did not observe those behaviours himself directly, he went on to give the following evidence:
I am concerned that this boy is subject to a series of very subtle cues that cause him to feel a sense of restraint about his relationship with his father, and um, I can’t with certainty advise the Court whether this is a conscious thing coming from the maternal environment or whether it stems from an underlying anxiety, or whether there is a co-dependence, there is potentially multiple things happening. But I have formed the view, having now met this little boy twice, that there are subtle cues that this boy should not enjoy an unencumbered relationship with his dad. And, whilst the mother may argue she’s never, you know, spoken ill of the child, and has never done anything that would influence the child, I’ve seen videos of this boy being questioned about ah, dad said he’s gonna kill mum. And the questions are suggestive, um leading, um coercive, and to pre-suppose that doesn’t land with this boy in a very distinct way, in the way in which I’ve described, it’s just entirely counter-factual and illogical in my view. So, we’re not talking about, just to clarify, we are not talking about this boy being scared of his dad, we’re talking about this boy feeling pressure from one side of his family, his mother’s side, the maternal environment, about the relationship he has with the paternal side of his family. And that pressure might not be overt, although at times, there has been demonstrable examples of where it’s been counter-productive and unhelpful, it’s more subtle than that, there’s more nuance to it than that. It’s about having a sense of restraint….
The mother is a competent, loving parent, but that doesn’t extend to being a competent, loving separated parent, where she is not an island on her own, you know, not requiring to consult with the child’s other parent, she can’t make unilateral decisions, she can’t expose this boy to a whole lot of treatments, and assessments, and interviews, and professional consultations without involving this boy’s dad. And so, some of these things are quite subtle, but they’re important when we start to evaluate, well what’s it going to look like when this kid’s 13 or 14, and starting to assert his will a bit more forcefully in what he wants to happen. And what we tend to see, and again this is anecdotal, but it is supported empirically, these kids start to split off from one of their parents, when they’re about 12, 13, 14 years of age. And it can go in either directions. And that subtle influence, and those messages of restraint, under cover of solicitude, you’ll be ok with your dad, that sends – the optics of that – kids are smart, they’re perceptive, they’re intuitive, they pick up on that. And after years and years and years of growing up in that sort of environment, they go it’s too hard, and they can’t compartmentalise their experience anymore, so they stop going to one of their parents entirely, and they split off from one of their parents, and that often then, I see these matters in our rooms, um it gets pretty hard to put the toothpaste back in the tube at that point when they’re split off. And that’s my concern for this boy.
[35] Family Report, paragraph 44.
Accordingly, it is Dr D’s opinion that on the current trajectory, there is a likelihood that X will split off from one of his parents and stop spending time with them. The limitations in Ms Rapallo’s parenting capacity arising from her paranoia, risks X continuing to benefit from a meaningful relationship with both of his parents in the medium term. As Dr D opined in January 2022, albeit in the context of the then existing care arrangements continuing, “there is a risk of this child eventually beginning to reject his father”.[36]
[36] Affidavit of Dr D filed 3 February 2022, Annexure 2 (“Child Impact Report”), paragraph 33.
Ms Rapallo challenged Dr D’s assessment on the basis that there is no conflict in front of X. That submission does not grapple with the thrust of Dr D’s evidence about the cues X picks up from his mother. Dr D also did not fail to attend to X’s denial that “either parent was inclined to denigrate or outwardly undermine the other”.[37] Nor is Dr D’s opinion impugned by Ms Rapallo’s contention that X is well adjusted, well-mannered and an otherwise healthy boy.
[37] Family Report, paragraph 31.
Dr D opined in January 2022 that “children who are raised by separated parents who fail to communicate and send messages of restraint are far more likely to encounter an array of problems in their childhood and adolescence.”[38] Ms Rapallo has nevertheless continued to fail to communicate with Mr Whalan in relation to the provision of care for X and has taken active steps to limit that communication. She has continued to impose messages of restraint on X’s relationship with his father. So much reflects poorly on her capacity to provide for her son’s needs.
[38] Child Impact Report, paragraph 29.
Ms Rapallo was at pains to point out that X is well-adjusted and progressing well at J School. Nevertheless, in November 2021, she sent the following text message to Mr Whalan:
[X]would be delighted that you now want him to attend [K School] next year for grade 1 in 2022 with his cousins. Rates notices are required as proof of residence for zoning. Enrolment forms are still online. [Mr L] is awaiting your correspondence.
Ms Rapallo accepted that she had no reason, let alone a good reason, to change X’s school. She accepted Mr Whalan did not then want X to change school. She said that she honestly did not know why she sent the message. That she would propose a change of schools for X without reason, also reflects poorly on her capacity to provide for her son’s educational needs.
Ms Rapallo refused to consent to X attending school swimming classes in a timely fashion, despite agreeing that he would benefit from attending. Arrangements were made for one-on-one supervision of X given his past epilepsy, but no written consent was forthcoming for X prior to his school swimming class on 10 October 2022. X’s teacher reported to Mr Whalan that X was visibly upset and required comfort. Ms Rapallo also failed to provide consent for an excursion for X in July 2021, for an incursion in October 2022 and for a Grade 1 activity night, which included a school disco. That Ms Rapallo was not only unable to successfully communicate with Mr Whalan about those issues, but also with the school, also reflects poorly on her capacity to provide for X’s needs. She herself admitted in oral evidence that she was not doing everything she can to co-parent with Mr Whalan.
Ms Rapallo sought to explain her reflexive responses to Mr Whalan in refusing to consent to activities for X, by reference to feeling under pressure to respond and becoming defensive. She was asked whether she had sought psychological assistance given her responses, to which she gave evidence that she had seen her psychologist once or twice in 2022. Her recognition of the difficulties attendant upon her communication with Mr Whalan has not resulted in any serious attempts to address it. That she is now apologetic for her conduct does not demonstrate an improved capacity to provide for X’s needs in the future.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of X and of either of his parents, and any other relevant characteristics of X
X has previously suffered from epilepsy, although he is not now medicated for the condition. To the parties’ credit, they were able to successfully negotiate his care during a hospital stay in October 2019 after his first seizure.
If X is an Aboriginal child or a Torres Strait Islander child, his right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture), and the likely impact any proposed parenting order will have on that right
X is not an Aboriginal or Torres Strait Islander child.
The attitude to X, and to the responsibilities of parenthood, demonstrated by each of X’s parents
Despite a final Order for equal shared parental responsibility being made in March 2018 by consent and an interim consent Order to the same effect being made in March 2022, Ms Rapallo has consistently failed to comply with it. She gave oral evidence that she has “always made an attempt, to, again, co-parent with respect and honesty”. In sharp contradiction to that evidence, she has repeatedly, and intentionally, refused to permit Mr Whalan to have access to information in relation to X’s medical needs, and refused to provide consent to psychologists seeking to involve his father in therapy.
In May 2020, Ms Rapallo obtained a mental health referral for X to attend a psychologist at M Group. Ms Rapallo claimed in oral evidence that she raised that referral with Mr Whalan after the fact. When that evidence was challenged, she said that she asked the psychologist to contact Mr Whalan. When it was put to her that it was the psychologist who chose to contact Mr Whalan, she gave oral evidence that she had provided Mr Whalan’s phone number. She ultimately accepted that she did not tell Mr Whalan anything before Mr Whalan was contacted by the psychologist at the time of X’s second appointment.
When Mr Whalan spoke to the psychologist on 14 July 2020, he discussed with her X’s presentation in his home and is recorded as stating that going to a psychologist could be counter-productive and cause him more anxiety in light of the animosity between his parents. Mr Whalan did not consent to the treatment and so it was withdrawn.
Ms Rapallo unilaterally obtained a further referral for a mental health plan for X in August 2021. I reject Ms Rapallo’s evidence that she thought she had asked Mr Whalan about that referral. She has no record of any such communication. She was subsequently non-responsive when it was put to her that she did not ask Mr Whalan’s permission for the referral. Ms Rapallo omitted contact details for Mr Whalan on the psychologist’s intake form. Notes from the psychologist confirm that Ms Rapallo refused consent for the psychologist to contact Mr Whalan. There would have been no reason for Ms Rapallo to fail to provide that information or consent if Mr Whalan was already aware of the referral. Ms Rapallo accepted that the information she provided about Mr Whalan in the intake form was relentlessly critical of him.
In relation to an appointment with the psychologist on 14 October 2021, Ms Rapallo initially gave evidence that she did not remember speaking with the psychologist on that day, before giving evidence that she briefly said hello, before eventually giving evidence that she did not recall. She was taken to the psychologist’s notes of the appointment which record her declining the recommendation that the psychologist have a separate session with Mr Whalan. She adamantly denied that she had declined to provide her consent. She could provide no explanation of the inconsistency between her not recalling the appointment and her adamant denial of the contents of the notes. I find that Ms Rapallo again failed to accept the psychologist’s recommendation that Mr Whalan be involved in X’s therapy.
The March 2022 interim consent Orders also restrained both parties from taking X to any medical centre other than the one nominated in the Orders. Within two weeks of that Order being pronounced, without notice to Mr Whalan, Ms Rapallo took X to a different medical centre. Ms Rapallo attempted to explain her breach of the Orders by referring to matters that were well known to her prior to the making of the Orders, including the location of X’s medical records and reference to him attending a wedding in January with loud drums. Her belief that she was acting in X’s best interests by breaching Court Orders has no basis in fact. It is reflective of an extremely poor attitude to the responsibilities of parenthood.
In September 2022, Ms Rapallo again took X to a medical centre other than the one specified by the interim Orders. When asked why she did so, she answered “I don’t know, I don’t recall the reason.” The notes of the consultation on 12 September 2022 record her falsely telling the doctor that Mr Whalan now wants counselling to go ahead for X. Ms Rapallo’s claim that she could not recall whether she had asked Mr Whalan are fanciful in light of the history of this issue.
The March 2022 Orders restrained the parties from taking X to any psychologist without the express written consent of the other party. Ms Rapallo also breached that Order when she arranged for X to attend upon a psychologist at N Psychology on two occasions.
Ms Rapallo’s repeated failure to advise Mr Whalan of the therapy she had arranged for X in breach of Court Orders, reflects very poorly on her attitude to the responsibilities of parenthood. I accept Mr Whalan’s submission that she has demonstrated a preparedness to disregard the authority of the Court. Further, her failure to consent to the psychologists contacting Mr Whalan deprived X of the very treatment she considered he needed. There is no construction of those events that can be seen to promote X’s best interests.
Ms Rapallo gave evidence to this Court that co-sleeping stopped at the beginning of 2022. Despite that evidence, during the psychology sessions in September and November 2022, co-sleeping is raised by her as an issue needing to be addressed. When that inconsistency was drawn to her attention, she gave evidence that she “didn’t explain it correctly”. Neither alternative explanation could be seen as being in X’s best interests. Either she lied to the Court about whether or not he was co-sleeping during 2022, or she lied to the psychologist engaged by her to provide treatment for X in breach of Court Orders.
It was put to Ms Rapallo that the reason she arranged for X to attend psychologists in breach of Orders was to support her position that week about time was bad for X. She responded that “No, I wanted to reassure X that it’s all ok.” It is fanciful to suggest that her actions of obtaining mental health referrals and having X attend a psychologist were a way of reassuring X of the appropriateness of his living arrangements. There is no suggestion in any of the medical notes that was the purpose of the sessions. I do not accept her evidence.
Ms Rapallo’s poor attitude to the responsibilities of parenthood is also demonstrated by her failure to provide timely consents to X to attend school activities and events. She accepted that she refused to consent to X attending a Harmony Day event at school.
Any family violence involving X or a member of his family
In 2018, Mr Whalan deposes to Ms Rapallo attending his home on the morning of his birthday. After he opened the door, he deposes to asking her why she was at his home, to which she replied to wish him a happy birthday. He deposes that as she said that, “she hit me four times to the head”, leaving scratch marks on the back of his head.[39] Ms Rapallo challenged that evidence by suggesting that he himself took a photograph of the injuries rather than having someone else take the photograph. She also suggested that because she was right handed, any injury would be to Mr Whalan’s right hand side. There is no logical reason why that is so, nor does the fact Mr Whalan turned left, cast doubt over the allegation given by Mr Whalan’s unchallenged evidence that he turned in the direction of an open doorway. Ms Rapallo’s challenges to Mr Whalan’s evidence were ineffectual. That she was not convicted of assaulting Mr Whalan does not establish she did not do so. I am persuaded that Ms Rapallo assaulted Mr Whalan in 2018 as alleged by him.
[39] Affidavit of Mr Whalan’s filed 30 January 2023, paragraph 25.
On 27 January 2022, Mr Whalan deposes to Ms Rapallo sending the following text message to him: “I was walking down O Street last Friday about 1030 when I say [sic] Ms P struggling with her suit case getting in her front door”. [40] He deposes to that message being a breach of the interim Intervention Order then in place. That evidence was not challenged and I accept it.
If a family violence order applies, or has applied, to X or a member of X’s family, any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order, and any other relevant matter
[40] Affidavit of Mr Whalan’s filed 30 January 2023, paragraph 67.
Multiple Intervention Orders have been in place between X’s parents pursuant to applications by each of them. All have been granted on an interim basis, on an ex parte basis without challenge to the evidence or ultimately resolved by agreement between the parties, without any findings having been made.
Ms Rapallo applied for her first Intervention Order against Mr Whalan in June 2017, days after the release of a family report prepared in previous proceedings in this Court. Mr Whalan applied for his own Intervention Order against Ms Rapallo in November 2018. In May 2019, those proceedings were resolved by way of an Undertaking granted without admissions.
In July 2019, both parties again made applications for Intervention Orders against each other. Both were resolved in September 2019 by the granting of final Orders without admissions for eight months.
In April 2020, both parties applied to extend the final Intervention Orders. Ms Rapallo’s application was subsequently dismissed. Ms Rapallo re-applied for another Intervention Order in July 2021. On 9 February 2022, the parties co-signed a consent minute to withdraw their respective applications. Mr Whalan’s application was subsequently withdrawn. Ms Rapallo subsequently reneged on the agreement resulting in several Court appearances, before ultimately withdrawing her application in September 2022.
On 9 December 2022, Ms Rapallo again applied for an Intervention Order against Mr Whalan resulting in the grant of an interim Order in place until the return of that application on 17 February 2023.
Dr D made the following observations in January 2022:
… I would consider it is abjectly unhelpful for the parties to have resorted to such frequent use of intervention orders and police reports, in circumstances where neither is in acute danger. I am unconvinced that the level of threat or risk posed by the conduct of either parent, while probably unhelpful, justifies such excessive use of services that are designed to keep the most vulnerable members of the community safe. Their respective behaviour in this respect has been churlish, immature, strategic, and defensive.[41]
[41] Child Impact Report, paragraph 31.
Ms Rapallo’s pursuit of the application then on foot despite having agreed to withdraw it reflects poorly on her capacity to put the “rubbish”, as she described it in closing submissions, behind her. Undeterred, she made a further application in December of 2022. So much contradicts her expressed desire to work towards an effective co-parenting relationship with Mr Whalan.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to X
The parties have been involved in multiple proceedings in this Court, and a multitude of Intervention Order applications in the Magistrates Court. Regrettably, it appears that there is a likelihood of further proceedings given the entrenched conflict between the parties.
It is Dr D’s recommendation that in the longer-term X would be best served by living one week with each parent. In the event that I determine X should now live primarily with Mr Whalan, that recommendation raises the prospect of further litigation. In a laudable effort to avoid that eventuality, Dr D suggested in his report that the “court may wish to consider an order that is self-executing, whereby X’s time with each parent defaults to a week-about configuration, once Ms Rapallo has completed any psychological/pharmacological treatments that are needed to reduce her paranoid ideation.”[42] His oral evidence in relation to the likely efficacy of therapeutic intervention was circumspect, indicating that treatment would not only require an expert with particular expertise, but intensive sessions weekly or bi-weekly for an extended period of time of six to twelve months.
[42] Family Report, paragraph 45.
Dr D also observed the substantial discrepancies between the narrative Ms Rapallo had provided him and the narrative she subsequently provided to Associate Professor G. Dr D considered that some aspects of that narrative recorded by Associate Professor G were ludicrous and suggest an attempt to retrofit alternative explanations in support of her allegations. As Dr D observed, regrettably, there is an absence of introspection or contrition in her subsequent presentation to Associate Professor G.
In oral evidence, Dr D was appraised of the allegations Ms Rapallo now makes of Mr Whalan poisoning her on three separate occasions, including twice prior to her interviews with him and of Mr Whalan behaving in a sexually inappropriate way with X. Her evidence that she was unaware of those matters prior to meeting Dr D was clearly false. Dr D confirmed that she made no such allegations during the 105 minute assessment with her in December 2022. Although Ms Rapallo challenged the duration of that assessment, she adduces no contradictory evidence in relation to it, and I find no basis to conclude that Dr D’s evidence in that respect is unreliable. Having been appraised of those new allegations, Dr D considered that the self-executing order is no longer appropriate. I accept that opinion. The escalation in Ms Rapallo’s false allegations over the last two months, including some raised for the first time during the trial itself, suggests that her paranoid ideation is worsening rather than improving.
Ultimately, neither party proposed a self-executing order as initially contemplated by Dr D. Any construction of such an order is not without complexity. It would need to provide for conditions that need to be met in order for the Court to be satisfied that X’s time with the mother should necessarily increase. Not only are those conditions difficult to precisely identify, but there is inevitably a risk of dispute between the parties as to whether the conditions have been satisfied, raising the spectre of further litigation in and of itself. I am not ultimately satisfied that a self-executing order substantially reduces the risk of future litigation.
Any other relevant fact or circumstance
Not relevant.
PARENTAL RESPONSIBILITY
Given the findings I have made that Ms Rapallo has perpetrated family violence, the presumption of equal shared parental responsibility is inapplicable. Ms Rapallo nevertheless proposes that the parties have equal shared parental responsibility for X. There is a complete absence of evidence that the parties are capable of communicating or cooperating to comply with the mandatory requirements that attach to the making of such an order.[43] I accept Dr D’s unchallenged opinion that the “co-parenting relationship is irrecoverable”.[44]
[43] Family Law Act 1975 (Cth), s 65DAC; Boyle & Zahur & Another (2017) FLC 93-814 at [22].
[44] Family Report, paragraph 46(a).
By way of a further recent example of the absence of any functional co-parenting relationship, in November 2022, X told his father that he had been seeing a psychologist who Mr Whalan identified as Dr Q. On 10 November 2022, Mr Whalan made arrangements to speak to Dr Q. Later that same day, Ms Rapallo sent the following message, amongst others, to Mr Whalan on the parenting application:
You are waisting [sic] [X] money, my time and resources . STOP now. You are a bipolar, controlling , manipulative excuse for a person. I pray for your healing, you ill soul. I prey [sic] for [X]’s continued vibrant health as he is when in his mothers care. I prey that he doesn’t have the same mental drives as you you damaged soulless individual.[45]
[45] Affidavit of Mr Whalan’s filed 30 January 2023, paragraph 122(c).
Ms Rapallo admits that she understood the requirements of an Order for equal shared parental responsibility which has been in place since at least March 2018 and has nevertheless failed to comply with it. I am not satisfied it is in X’s best interests for his parents to have equal shared parental responsibility for him.
In breach of both the Order for equal shared parental responsibility and specific restraints on the parties taking X to different general practitioners or psychologists without consent, Ms Rapallo did just that. Her failure to adhere to Court Orders she herself proposed as being in X’s best interests, amply satisfies me that it is now in his best interests for Mr Whalan to have sole parental responsibility for long term decisions for X. Whilst that is a significant step, Ms Rapallo has, for reasons she has been unable to satisfactorily explain, unilaterally made such decisions contrary to X’s best interests.
Ms Rapallo will not be entirely deprived of input into major long term decisions for X on Mr Whalan’s proposal, which requires him to consult with her in relation to them and make a genuine effort to agree prior to any final decision being made. I find such an outcome to be in X’s best interests.
In circumstances where Ms Rapallo has previously breached Orders that limit the medical practitioners upon whom X can attend, I am satisfied that the continuation of that injunction is in X’s best interests. So much will ensure continuity in his medical treatment.
There is insufficient evidence before the Court to satisfy me that X’s best interests will be served by remaining at the same primary school until grade 6, as is proposed by Ms Rapallo. Both parties propose each of them be authorised to obtain information directly from X’s school and medical practitioners, as well as be permitted to attend events and specialist appointments.
CONCLUSIONS
Regrettably, I am unable to conclude that Ms Rapallo’s general competence as a parent, the strength of her bond with X, and the longer term desirability of X living equally with each of his parents outweighs the risk to X of being exposed to his mother’s paranoia, persecutory and delusional beliefs. As Dr D opines, “the cumulative psychological risk for this boy growing up with a mother who believes the father is intent on killing her, is a factor that cannot be overlooked.”[46]
[46] Family Report, paragraph 45.
Ms Rapallo’s inability to move beyond the dispute between her and Mr Whalan, along with the escalation in her fanciful allegations of misconduct against him, supports Dr D’s opinion that “[w]hen the litigation concludes, Ms Rapallo’s behaviour will not stop, likely escalate.”[47] Such a conclusion is also supported by Ms Rapallo’s application for a further Intervention Order in December of 2022 without any recent factual basis, given my findings.
[47] Family Report, paragraph 44.
X’s best interests are now served by living primarily with Mr Whalan. So much will afford him the opportunity to attend and participate in school events and excursions without Ms Rapallo’s historical interference. It will afford him the opportunity to participate in regular extra-curricular activities during the week rather than doing so only fortnightly. It will minimise the extent to which he is “infused with messages of risk and threat”.[48] It will minimise the other risks opined by Dr D of growing up to reject one of his parents, likely his father, or struggling to individuate.
[48] Family Report, paragraph 44.
Mr Whalan’s proposal for X to spend time with Ms Rapallo is consistent with Dr D’s recommendation which I conclude to be in X’s best interests. Whilst Dr D did make some suggestion that a lesser amount of time might be temporarily appropriate in his oral evidence, I am not satisfied the balance of the evidence supports such a conclusion. X will have the opportunity to spend substantial time with his mother on weekends and during school holidays, and on occasions of significance. I agree with Mr Whalan that limiting X’s time with his mother during summer school holidays to a period of two one week blocks is currently in X’s best interests, given her paranoia and delusions about his safety in his father’s care.
Neither party made specific submissions with respect to X’s time with his parents on special occasions. There are minimal differences between their proposals. I prefer Mr Whalan’s proposal which is more clearly drafted, minimising the likelihood of disputation between the parties.
Ms Rapallo proposes that changeover at non-school times occurs at McDonald’s Suburb J. The parties have been conducting such changeovers at each other’s residences for a substantial period of time. I am not now satisfied that X’s best interests are met by being required to attend a different location, which would require both parties to travel and the consequential possibility that one or the other will be delayed. However, I find no reason to require the parties personally to attend changeover and so will provide for the location venue at each party’s home. Given that conclusion, I consider it necessary for the parties to advise the other in advance of any changes to their home address as is proposed by Mr Whalan.
It is agreed that each parent will facilitate X communicating with the other parent upon X’s request. Ms Rapallo proposes that each parent communicate with X on three occasions each week. I am not satisfied such an order is in X’s best interests given Ms Rapallo’s paranoia and delusions. The evidence is replete with examples of difficulties that have arisen when the parties have sought to communicate with X during the other party’s time with them. Given the current Intervention Order in place on Ms Rapallo’s application, I am not satisfied it is in X’s best interests to be exposed to further disputation between his parents during the proposed thrice weekly communication proposed by Ms Rapallo.
It is common ground that a passport should issue for X and that the parties ought to have an opportunity to travel internationally with X upon notice. Ms Rapallo made no submissions about Mr Whalan being permitted to obtain that passport and retain it, which proposal I find to be in X’s best interests given he will be primarily living with his father. Neither party addressed the subtle differences between their proposals for travel. I prefer Mr Whalan’s proposal which provides greater certainty of the parties’ obligations. I consider that his proposal to have an overseas holiday with X for up to three weeks subject to the provision of makeup time to Ms Rapallo, is in X’s best interests given Mr Whalan will be primarily responsible for X’s care.
Mr Whalan proposes a broader range of mutual restraints on the parties discussing proceedings, exposing X to family violence and speaking disparagingly about the other. It is in X’s best interests that both of his parents are so restrained to minimise the extent to which he is exposed to such matters.
Mr Whalan seeks two orders that were conceded to by way of enforcement of a previous Order for Ms Rapallo to pay half the cost of a family report in the earlier proceedings. I am not satisfied further orders should be made effectively re-imposing the same obligations. If Ms Rapallo continues to be in breach of those obligations, Mr Whalan may seek their enforcement rather than re-statement.
Mr Whalan seeks liberty to provide copies of documents from these proceedings to the Magistrates Court of Victoria for the purpose of Intervention Order proceedings. Ms Rapallo made no submissions with respect to the application. Ordinarily, because the documents were obtained by compulsion of the Court’s rules and orders, they cannot be used for any other purpose unless received into evidence.[49] On its face, that obligation does not attach to all documents, save for these reasons given that were received into evidence. If I am wrong about that, I would find that special circumstances exist such that Mr Whalan ought be relieved of his obligation.[50] The relevant special features include that Ms Rapallo repeatedly gave evidence that her current application for an Intervention Order was a mistake that she regrets, that she advised the Court in closing address she would withdraw the application, and the negative impact the multiple intervention order proceedings have had on the co-parenting relationship between X’s parents. Further, X’s best interests are served by the Magistrates Court being appraised of relevant evidence and reasons from this Court.
[49] Hearne v Street (2008) 235 CLR 125 per Hayne, Heydon & Crennan JJ at [96].
[50] Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 at 225.
I certify that the preceding one hundred and thirty-one (131) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass. Associate:
Dated: 20 February 2023
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