Darbin and Presley (No. 2)

[2008] FamCA 835

FAMILY COURT OF AUSTRALIA

DARBIN & PRESLEY (NO. 2) [2008] FamCA 835

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – Best interests

Family Law Act 1975 (Cth)

APPLICANT: Mr Darbin

RESPONDENT: Ms Presley

FILE NUMBER: HBF 1669 of 2004

DATE DELIVERED: 28 April 2008

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Mushin J

HEARING DATE: 28 April 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lee

SOLICITOR FOR THE APPLICANT: Ogilvie Jennings

SOLICITOR FOR THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Fitzgerald

SOLICITOR FOR THE APPLICANT: Legal Aid Commission Of Tasmania

Orders

1. The child … born … June 2002 live with the father.

2. The father have the sole duty and responsibility of making all parenting decisions both long term and day-to-day with respect to the said child.

3. Subject to paragraph 4 hereof all questions of the mother spending time with the said child be reserved.

4. Notwithstanding paragraph 3 hereof the mother spend time with the child as may be agreed between the parties in writing subject to the following:

   a.that it take place in Hobart; and

   b.that it be supervised by the Hobart Child Contact Centre, the parties  hereby required to comply with all reasonable directions of the Centre in respect of such time.

5. The mother be and is hereby authorised to communicate with the child by letters, cards and gifts as she may determine.

6. The father do all things and sign all documents necessary to enable the mother at her expense to:

   a.obtain school reports of the child’s progress at school and discuss any such report with a teacher or teachers at the said school no more than once in each school term subject to any requirement by the school; and

   b.be advised by the father of any serious medical condition suffered by the child, the mother being thereupon authorised to obtain a report from a relevant medical practitioner and discuss such report with such medical practitioner subject to any reasonable requirements of that practitioner.

7. General liberty be reserved to both parties to apply.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

IT IS NOTED that publication of this judgment under the pseudonym Darbin & Presley is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBF 1669 of 2004

MR DARBIN

Applicant

And

MS PRESLEY

Respondent

REASONS FOR JUDGMENT

1. These are proceedings concerning a child who is five years and 10 months of age.  He is a child of the parties.  He has obviously had a highly dysfunctional life for various reasons which I will describe in due course.  He has lived with his father in Hobart for the last two years as a result of orders of the Court and a recovery order, the mother having removed him from Hobart in the latter part of 2005.

2. I turn to the background facts of this matter.  The father was born in November 1955 and the mother was born in May of the same year.  The parties commenced living in what is known as a de facto relationship in approximately September 2000 and married in Hobart in April of 2002.  They separated in November 2004 and have lived separately and apart since that time.  The child was born in June 2002.  Following the separation of the parties, he initially lived with the mother.

3. It is relevant to set out several facts relating to the time before the parties commenced their relationship.  When he was about 22 years of age, the father was living in Queensland.  He perpetrated a rape of a woman of about the same age.  The only factual detail that I have of that rape was partly from the father and partly from a newspaper article at the time which is an exhibit before me.  It was a particularly brutal rape.  It involved dragging the victim out of her car, punching her in the face, threatening her, driving her to a remote spot and raping her.

4. If there is any credit that can be given to the father in respect of this event, it was that he did not put the victim through the trial.  He pleaded guilty to the rape and was sentenced to imprisonment for a term of 11 years with a minimum of eight years.  The sentence itself is evidence enough of how serious the matter was, particularly because there was no directly relevant prior conviction which might have otherwise increased that sentence.  It is unusual in cases of this sort but the father has demonstrated to me what I accept is real and deep contrition for that heinous crime.

5. As so often happens in these circumstances, it would appear that he was extremely drunk.  He appears to have received some sort of counselling or other professional assistance while he was in prison and has not offended again in any relevant way.  He came to Hobart in about 1989 and has lived here ever since.  The mother came to Hobart perhaps a year or two earlier and lived here until events which I will shortly outline.  The parties met here, married here, and lived here throughout cohabitation.  The child being also born here.  So that Hobart is indeed the centre of this family’s existence.

6. I have a picture in my mind of this family which consisted not just of the parties and their one child, but of several other children of the mother by different relationships. This is a family which can only be described as highly dysfunctional.  While extremely serious allegations are made, particularly by the mother against the father, of family violence, the credibility of the mother on various aspects of disputed evidence in this matter does not enable me to make the clear, positive findings that might otherwise be made in these circumstances.

7. Obviously, the seriousness of the allegations requires a particularly significant degree of evidence to satisfy me on the balance of probabilities as is required by Division 12A of Part VII of the Family Law Act 1975.  Further, it is an unusual case to the extent that by virtue of the way in which it has unfolded and the various proposals of the parties it has strangely become unnecessary for me to make a clear determination of the issue of family violence and I emphasise that that is an extremely unusual course for me to take in these cases.

8. As I have already said, following the parties’ separation, the child remained in the primary care of the mother.  The relationship between the parties continued to be dysfunctional.  It seems to be common ground that the father had at best very little time with the child and probably none at all with the exception of his third birthday in June 2005 when I think there was some time spent at McDonald’s.  There is an issue between the parties at this time as to whether the father was interested in pursuing a relationship with the child or whether the mother denied him that opportunity.

9. The dysfunctionality of the family makes it difficult for me to determine that issue and again because of the circumstances to which I have just referred it does not require a determination.  Amongst other things, there is a dispute between the parties as to the role of the father during the cohabitation with respect to parenting of the child.  That is a matter of what appears to be contradictory evidence by the mother who in an earlier affidavit suggested that there was a sharing of responsibilities and in a later affidavit suggested that the father played very little role indeed.  Once more, it is unnecessary for me to decide that matter. 

1. It is common ground that the mother unilaterally removed the child from Hobart in the latter part of 2005.  The father had filed an application in August 2005 seeking final orders at which time the mother appears to have agreed to his having contact with the child.  However, it seems that she later withdrew her consent.  The mother having removed the child from Hobart, the father caused an application to be filed on 8 December 2005 seeking a recovery order.

2. On 27 January 2006, a further application was made for a Commonwealth Information Order to obtain the whereabouts of the mother and that order was made on 3 February of that year.  On 27 March 2006, the proceedings came before Benjamin J in Hobart on which date his Honour ordered that the mother return the child to Tasmania by 5 pm on 5 April 2006.  His Honour also provided that on the condition that the mother complied with that first order that the child live with the mother, that they both be jointly responsible for long-term care, welfare and development and that the father have what was then termed “contact” with the child on each Tuesday between 9 am and 4 pm, each Saturday from 10 am to 4 pm, and other specific days, being Christmas, Boxing Day, Easter Sunday, his birthday, and at other times as may be agreed.

3. A specific provision of the order was that the mother not bring the child into contact with one Mr C who is one of the people to whom I shall refer in due course.  His Honour also then provided that in the event that the mother did not comply with that order to return the child to Tasmania as his principal residence, a recovery order issue and that thereafter pending further order and on that condition, the child live with the father.  In that event, all questions of the mother’s contact with the child were reserved.

4. What was then known as a “Child Representative” was appointed and leave was given for re-listing.  The mother did not return the child to Tasmania in accordance with his Honour’s order and the recovery order issued pursuant to that order on 27 March 2006.  The consequence of the mother’s breach was also to place the child in the interim residence of the father.  There had been some difficulty in locating the mother.  She had initially moved from Hobart to New South Wales, but was located at T in South West Queensland.  The father travelled to that town and was present with the Federal Police on 22 April 2006 when the police executed the recovery order and delivered the child into the father’s care.

5. He returned to Tasmania with the child, who has been living with him in Hobart since that time.  It is also pertinent to note that that is the last day up to the present time on which the mother has had any contact or communication with her son.  The father and mother have not had any direct communication since the McDonald’s Family Restaurant event on the child’s birthday in June 2005. 

6. There are several disturbing matters which require some attention at this stage.  The first of those is that having referred to the father’s sincere contrition for the rape in the late 1970s and having referred to his not having re-offended in any relevant way at all, there is a comparatively minor, but nevertheless disturbing event which occurred in 2002.  On 26 June, the father went into the Centrelink office at G and according to the manager of that office at the time “was quite abusive and demanding, refused to listen to what staff were trying to tell you, and made threats against the staff.”  The manager decided to ban the father from entering any Centrelink office in Tasmania for a period of 12 months, effective from 27 June 2002. 

7. On 10 April 2003, contrary to the banning to which I have referred, the father again entered the G Centrelink office and refused to leave when asked to.  There is clear statutory authority in Centrelink to take this course, including to require somebody who has been so banned to leave.  There was an attempt in re-examination to suggest that the father had entered perhaps believing that the order had expired.  I do not regard that attempt as having been successful.

8. So there remains some question mark over the father’s ability to control anger.  There does not appear to be anything more recent than that.  There are greater concerns on the mother’s side and they relate to matters of parenting and people with whom she associates.  It would appear that two of her other children were removed by relevant state departments on the basis that there were care and protection issues involved.

9. It is not relevant for me to make findings with respect to those matters.  It is sufficient to find that on at least one occasion a relevant State Government protection authority has been concerned about the mother’s parenting ability such as to remove two children from her care.  The second and more concerning issue with regard to the mother is her proclivity to mix with people in respect of whom one must have real questions as far as being around children is concerned.

10. A Mr C, to whom I have already referred, was charged with carnally knowing another daughter of the mother.  He was presented for trial for carnal knowledge and was acquitted by the jury.  As a result of that, he was discharged.  That does not mean an end to the matter as far as the best interests of children are concerned pursuant to the legislation which I administer.  He now appears to live in the same premises as that child who herself appears to be very significantly dysfunctional and there is a question about the nature of their relationship.  There is certainly not enough evidence to find that that of which he was acquitted by the jury, clearly on the basis that they were not satisfied beyond reasonable doubt, might be able to be found as being correct on the balance of probabilities.  I have concerns about that gentleman generally and one of the greatest of those concerns is that the mother does not have any concern about him.  I do have a considerable concern that the mother does not act protectively towards her children and these events concerning that child are but one example.

11. There are others.  There is one other acquaintance of the mother who apparently has downloaded as many as 30,000 images of child pornography.  Contrary to popular belief, child pornography is not a victimless crime.  It is an extremely serious crime involving victims and usually enormous numbers of them being the children who are the subject of these appalling displays.  I am not at all sure that the mother appreciates the potential seriousness of this matter and again I have a question mark in my mind as to her ability to act protectively towards her children.

12. In this context, I now turn to the various proposals put by the parties for the determination of these applications. On behalf of the father, who is the applicant, it is submitted that the child should continue to live with him in Hobart.  It is sought that he have sole parental responsibility and that the mother spend time and communicate with him by ordinary pre-paid post and at the Hobart Children’s Contact Centre on what is referred to as a “highly supervised basis”.

13. The independent children’s lawyer essentially adopts the position of the father and submits that further detailed orders be made which include the mother being authorised to communicate with schools and medical institutions to enable her to be involved in her son’s life.  In this context and on the basis of the facts as I have related them, it is startling to note that the mother’s firm proposal, which is  unwavering, despite many entreaties by me, is that she will not return to Tasmania under any circumstances whatsoever even to exercise a right of spending time with her son.  Given that proposal, the manner in which this matter might be determined becomes very significantly proscribed. 

14. I then turn to the legislation.  I am firstly required by section 60CA to regard the child best interests as the paramount consideration in making these orders.  Paramount does not mean sole.  It means most important.  I am then required to have regard to the objects and principles underlying Part VII of the Act relating to the making of parenting orders.  They are contained in section 60B.  Essentially, the Parliament has legislated to provide that to the greatest degree possible both parents, no matter what their status, be involved in the upbringing, communication and care of their child to the greatest degree possible.  The amendments to the Act which came into force in July 2006 promote that principle to the highest degree.  However, the objects and principles are strictly subject to my not finding that any particular order to give effect to them is contrary to the child’s best interests.

15. It is therefore appropriate that I turn to those best interests.  It is first necessary for me to consider the presumption contained in the Act with regard to shared parental responsibility.  That presumption is contained in section 61DA.  It is a rebuttable presumption and the grounds of rebuttal are that it does not apply if there are reasonable grounds to believe that the child has been subjected to abuse or exposed to family violence.  It may also be rebutted by evidence that satisfies me that it would not be in the best interests of the child for his parents to have equal shared parental responsibility.

16. It is submitted by both the father and the independent children’s lawyer that the presumption should be rebutted.  I accept that submission.  My reasons for that are:  first, the total inability of the parties to in any way cooperate with each other in determining anything with regard to the child’s interests and upbringing;  second, the extreme degree of disinterest in the child by his mother demonstrated by the proposal which she has put to the court;  and, thirdly, that the mother has had no experience of parenting or communication with the child for almost exactly two years.

17. Having found the rebuttal of the presumption and decided that it is not in the child’s best interests that it should apply, I am not then required by the legislation to consider whether the parties should equally share time with the child.  However, it is still necessary for me to consider that independently of its operation as a result of any finding for shared parental responsibility.  No party, including the independent children’s lawyer, proposes that there should be equal shared time and for the reasons that I found the rebuttal of the presumption, I also find that that is an appropriate course to take.

18. Each party seeks that the child should live with him or her, on the part of the father in Hobart and on the part of the mother in South Australia, and it now behoves me to note, as I note that I have omitted, the mother’s primary position is that the child live with her in South Australia.  It is also necessary to consider whether either party should spend substantial and significant time, but before doing that it is necessary for me to find the question of where the child will live.

19. In this regard I have been greatly assisted by the report dated 15 November 2007 from the court’s Family Consultant, Ms M, who was also cross-examined briefly during these proceedings.  Ms M is a very highly qualified expert witness, has very great experience in this area, and has provided a thorough and comprehensive report of matters relating to the child.  She was not in any way seriously challenged by any party and I find that her report is totally acceptable in every way.

20. Her recommendation, which I am not required to accept, is that the child live with his father, that his mother communicate with him by post, and that she spend time with him supervised by a children’s contact service in Tasmania, presumably Hobart. 

21. In my further consideration of these matters, I must also take into account the various matters referred to in section 60C(c) of the Act which contains both primary and additional considerations.  As far as the primary considerations are concerned, the benefit of the child having a meaningful relationship with both of the child’s parents and the need to protect him from physical or psychological harm, both of those are relevant here.  However, I must also take into account various other matters.  The child is too young to express views and in addition to that, the evidence satisfies me that he has a speech difficulty.  That has not been detailed in any significant way, although I note the very supportive affidavit by the principal of his school.

1. He clearly has special needs and is obtaining care from an appropriately qualified person.  He is speech deprived and so his means of expression even given his age are even more limited.  I am required to take into account the nature of the relationship which the child has with his parents and other persons.  For the last two years, the child has had virtually no relationship whatsoever with his mother and I see that as being exclusively his mother’s doing.  His mother has made no effort whatsoever to obtain the address and telephone number of the father which is in the phone book, to communicate with him through the solicitors, or to come to Tasmania.  I do not accept that it is an appropriate reason for the mother not to come to Tasmania that she regards herself as being physically threatened by the father.  There are ample means of protection with regard to that and if she were to place the priority of her son above everything else, that is a problem, which if it exists, could be overcome.  As well as that, in my view the father has a greater willingness and ability to encourage a continuing relationship between the child and his mother than does his mother to encourage that relationship between him and his father.

2. They are both extremely critical of each other, but I have been more impressed with the father’s insight into the child’s needs than I have been with the mother.  I find that the mother has virtually no insight or perception into any of his needs while the father has a significant degree, although not as high as one might hope.  I view the father as having a much greater capacity to provide for the child’s needs than does the mother.

3. The mother’s somewhat apparently chaotic lifestyle, the dysfunctional nature of her family involving her other children, and questions about people with whom she associates are matters which concern me very greatly indeed.  In my view, the father demonstrates a far higher degree of responsibility and attitude towards parenthood than does the mother for the reasons which I have stated.  There does not appear to be any present issue of family violence and again I refer to my findings with respect to the evidence.

4. I have no doubt that the order which I will make, which must be final in my view for the sake of the child and his best interests, will promote to the highest degree possible the bringing to the end of these proceedings and litigation between the parties.  There is then no other issue relevant to those considerations. 

5. All of the above leads me to the conclusion that the child’s best interests are better served by living in Hobart with his father.

6. As far as the mother spending time with the child is concerned, I have already noted her proposal and her attitude.  In my view, an order is likely to be of little worth.  I am going to provide for the ability of the parties to agree on the mother spending time in Hobart initially at a contact centre, but I am not going to order her to do so because my understanding of her position is that she has no intention of doing so.  It is appropriate that she should have the right to communicate with the child with regard to birthdays and other things, to send him gifts and cards, and also to be able to know what’s going on with his education and also with any serious medical matters and orders will be made along those lines.

7. Accordingly, the question of whether there should be substantial and significant time becomes completely irrelevant in a case such as this and it is unnecessary therefore to further consider that aspect of the matter. 

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate: …

Date:  16 October 2008