FARNAM & FARNAM

[2012] FamCA 742

FAMILY COURT OF AUSTRALIA

FARNAM & FARNAM [2012] FamCA 742

FAMILY LAW – CHILDREN – with whom the child spends time – benefit of the child having a meaningful relationship with her mother – where there is a risk of exposing the child to neglect in the care of her mother - orders for the child to spend time with the mother on a monthly basis – orders providing for extra time with the mother on special occasions and communication on a regular basis – where the parties agreed that the father retain residence of the child –where the child had initially resided with her mother following the parties’ separation – where the mother required a carer from age 16 years - where there were allegations of sexual abuse as against the mother’s carer, following which the child was put into the father’s care - where the mother was incapable of properly parenting the child due to her personality disorder –  where the father had previous issues with alcohol and substance abuse

FAMILY LAW – CHILDREN – Injunction – orders to restrain the father from drinking and from using corporal punishment on the child - where the father’s alcohol abuse had adversely effected his parenting, including a tendency to increase his use of corporal punishment – where the father had recovered from his alcohol addiction and had a relapse closer to proceedings – where the father was confident about his permanent recovery

FAMILY LAW – CHILDREN – Other orders in the Best Interests of the Child – orders made for child to receive medical treatment for serious medical condition – where the issue was raised by the independent children’s lawyer and orders were made in accordance with their recommendations

Family Law Act 1975 (Cth) s 60CC

R v R: Children’s Wishes (2000) FLC 93-000

APPLICANT: Ms Farnam

RESPONDENT: Mr Farnam

FILE NUMBER: (P)NCC 1350 of 2009

DATE DELIVERED: 31 August 2012

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATES: 19, 20 & 21 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Mooney

SOLICITOR FOR THE APPLICANT: Barbara Garrick & Associates

COUNSEL FOR THE RESPONDENT: Mr Santone

SOLICITOR FOR THE RESPONDENT: Dawson Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Allen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Denise Clark Solicitors

Orders

1. That all previous parenting Orders discharged.

2. The father shall have the sole parental responsibility for the child T born … January 2001 (“the child”).

3. That the father shall advise the mother in writing (which includes by text message and email) of long term decisions including but not limited to change of school; non-urgent medical treatment and religious instruction NOTING:

   (a)the father expects that the child will attend for secondary education at  High School H;  and

   (b)the father intends to obtain medical advice on the need for treatment for the child’s spine and to follow the recommendations made by such advising practitioners.

4. The child shall spend time with and communicate with the mother as agreed between the parties and failing such agreement:

   (a)the last Saturday of each month from 11.00 am to 3.00 pm commencing Saturday 25 August 2012 and extending to 10.00 am to 5.00 pm from the time the child commences at high school in 2013;

   (b)at Christmas from 12.00 noon until 4.00 pm Christmas Day;

   (c)on the child’s birthday from 10.00 am to 2.00 pm if the birthday falls on a non-school day or on the Saturday following if the birthday falls on a school day;

   (d)on Mother’s Day from 10.00 am to 4.00 pm;

   (e)by telephone each Wednesday and Friday between 7.30 pm and 8.00 pm with the mother to initiate the call and the father to ensure the child is available to take the calls in private.

5. Changeovers shall occur at mutually convenient places including Warners Bay, as agreed between the parties, but failing agreement outside C Police Station, …. and the parents and Ms M may affect the changeovers.

6. Ms N is not permitted to be present during the time that the child spends with the mother other than for the purpose of driving the mother to and from changeover.

7. That each party as soon as practicable telephone the other upon the happening of any of the following:

   (a)       The child becoming seriously ill;

   (b)       The child being hospitalised;  and

   (c)       The child becoming involved in an accident requiring medical attention.

8. That both parties are restrained from using corporal punishment on the child or allowing third parties to do so.

9. That the father shall maintain contact for himself, T, J, Ms M and her other children with the Whole Family Team through Hunter New England Local Health District and shall follow the recommendations of the Director-General of the Department of Family Services in the discharge report dated 28 February 2012.

10. In the event that the mother asks the father to participate in mediation and nominates a Mediation Service to use, then the father shall do everything necessary to participate in such mediation with the mother, in order to restore communication between the parents for the sake of their daughter.

11. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Farnam & Farnam has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC 1350 of 2009

Ms Farnam

Applicant

And

Mr Farnam

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These are competing applications by the parents of one child, T, aged 11 years (“the child”).  The applicant mother is Ms Farnam (“the mother”).  The respondent father is Mr Farnam (“the father”).  Both parties are 30 years of age.

2. The parents agree that the child should continue to live with her father.  The issues for determination are how the child should spend time and communicate with her mother and in what circumstances.

History

1. The parties began a relationship in 2000.  At that time the mother, then aged 18, had been receiving a Disability Pension for two years.  The mother has always had problems with her knees and ankles . She explained that “at times they are weak and I may have a fall and need a carer to assist me if I hurt myself.”[1]

   [1]  Affidavit of mother filed 17 February 2012 at par 6

2. The father became the mother’s carer shortly after they started living together.  the child was conceived early in the relationship and was born in January 2001. 

3. In 2002 the parties married and lived together for a further four years, separating briefly in 2004 before their final separation in mid 2006.  The mother alleges that the father had begun drinking heavily and that this was a factor in the breakdown of their marriage.

4. The child lived with her mother and spent time with her father every second weekend after the separation.

5. Following separation a new carer began living with the mother, Mr A aged about 17 years when he took on the carer’s role. 

6. After separation the relationship between the parents dramatically deteriorated.  The mother obtained an Apprehended Violence Order (AVO) due to her concerns about ongoing intimidation by the father.  Changeovers became increasingly hostile.  The mother feared that the father’s abuse of alcohol was having an adverse impact on his care of their daughter.  On one occasion in late 2006, there was a physical fight between the father and Mr A, where third parties became involved and police were called.

7. The mother continued to facilitate contact for the child and her father, but it became sporadic.

8. In March 2007 the mother was told by a JIRT team about an allegation of sexual abuse by Mr A of the child.  Mr A was directed to leave the mother’s house and an AVO issued for the protection of the child from Mr A. The mother collected the child from school the following day.  Her mother, the maternal grandmother, came to stay in the mother’s home to help her.

9. Despite the mother knowing the continued risks posed to the child of the father’s drinking and despite the fact that the child had always lived with the mother, after a few days, on 2 April 2007, the mother decided to place the child into the father’s care.  The child has remained living with her father since then, a period in excess of five years.

10. The reasons given by the mother for taking this step are set out in her affidavit as follows:[2]

    ·The maternal grandmother advised her that she, could be charged for kidnapping if she remained living in the maternal grandmother’s home helping her to care for the child.

    ·The mother herself assumed that because of the allegations against Mr A and JIRT’s involvement, it was the right thing for the mother to do.

    ·The mother did not want to “get into trouble” or cause trouble for her mother.

    [2]  Affidavit of mother filed 17 February 2012, pars 64, 65

11. The child did not see her mother at all for the next two and a half years.  The mother did not pursue the relationship. 

12. In 2009 the AVO against Mr A expired and he returned to live with the mother as her carer.

13. The first application to the Federal Magistrates Court was made in June 2009.  Two months later some supervised time between the mother and daughter began.  However, after three months the mother’s situation changed.  The maternal grandmother became unwell and was unable to supervise the visits. She died shortly after in November 2009 within a matter of weeks of becoming ill.

14. Subsequently, the mother’s mental health deteriorated.  She attempted self harm and became a voluntary patient at Hospital M.  After a few months she and Mr A moved to Forster, so there was again an extended period of absence of the mother from the child’s life.

15. From October 2009 and 16 April 2011, the child saw her mother in person on two occasions.  Thereafter, supervised time at the Rainbows Contact Centre began and continued fairly well on a monthly basis.

16. However well cared for she was in her father’s home, it must have been bewildering for the child that she hardly saw her mother at all over such an extended period of time.  It is a matter of significance that in her affidavit sworn 15 February 2012, the mother concludes with this statement:  “The strain of losing contact with [the child] has been a big issue for me to deal with….” This statement by the mother is indicative of her evidence that reflects little understanding of the impact on the child of losing contact with her mother.

17. By the time the matter came before me for final hearing, the child and her mother were spending pleasurable supervised periods of time for four hours on a regular monthly basis, engaging in activities which the child enjoys, such as ice skating, craft workshops, swimming and shopping.  The mother has developed a positive relationship with Ms M, the father’s partner. 

18. The mother continues to have Mr A as her carer and although the mother says she has both a car and a driver’s license, Mr A drives her around, the mother feeling unable to drive herself.  The mother is hoping to increase her periods of time with the child, building up to alternate weekends during school time and for half school holidays.[3]

    [3]  Amended Application filed 1 March 2012  pages 2, 3 & 4

Applicable law

1. In determining what is in the child’s best interests the Court must consider the matters set out in s 60CC of the Family Law Act 1975 (Cth) (“The Act”).

Primary Considerations s 60CC(2)

Section 60CC(2)(a) The benefit to the children of having a meaningful relationship with both of their parents

1. In his last report dated 10 June 2011, the Court appointed expert Dr R expressed the opinion that the mother had a severely impaired parenting capacity and an extremely limited ability to offer parenting to the child:  “At best she may be able to offer some aunt-like experiences”.[4]

   [4]  Report of Dr R dated 10 June 2011  p 15, line 554-557 inclusive

2. On the one hand, it is difficult to reconcile this view with the fact that the mother was the primary carer for the child until she was six years old.  However, it accords with the decision of the mother to place the child into the care of the father in March 2007, for the reasons stated and to wait two years to initiate contact with the child.

3. The mother says she was heartbroken at the loss of her daughter.  I accept that she was.  I also accept that she felt that she had to do what she did and felt powerless to rectify the situation.

4. Dr R also expressed the view that the mother suffers from Dependent Personality Disorder and is unable to function independently.  This diagnosis appears to be consistent with the evidence of the sudden change in the child’s residence during March 2007 and the evidence overall of the mother’s inability to act independently and to cope alone.

5. Dr R qualified his report somewhat in his oral evidence, demonstrating a little more optimism about the relationship between the mother and daughter.  His initial recommendation was that there be recognition contact only.  This would involve contact four times a year for several hours, together with telephone contact once a week.  In his oral evidence the doctor suggested that monthly contact between the child and her mother could be considered, especially if the mother continued to involve the child in activities that she enjoyed.

6. I concluded the change of recommendation to more regular contact in

   
   

   Dr R’s oral evidence related to two things.  Firstly, a pattern of regular supervised time which appeared to have worked well for the child and her mother and secondly, the need to develop the relationship to the maximum extent, given that the father was under considerable pressure in his household and had relapsed with his drinking and then recovered.  In that latter circumstance, Dr R said that the less detrimental alternative was the father.

7. Accordingly, there being some prospect of the restoration of a meaningful relationship, the orders provide for regular monthly contact and at other special times, extending to a full day once per month when the child is at high school.

8. I accept that there is a meaningful relationship between the child and her father.  He has provided all of her care over the past five and a half years, supporting her through the loss of the relationship with her mother.  The father has been assisted in the last two years by his partner Ms M.

S 60CC (2) (b) the need to protect the child from physical or psychological harm.

1. The father has struggled, both with addictions and personal obligations to his own children; his partner and her children.  His partner Ms M, has six children, L (10), S (9), W and H (5) and G (almost 3).  Two of those children, L and G, are members of the household.

2. The father and Ms M have one child together, J aged

   
   

   18 months.  Ms M has made an application in Queensland for her other three children to live with her.

3. The father recently had a relapse with his abuse of alcohol as a means to cope with his increased responsibilities.  He said he was using alcohol to calm down but it was not working.  Clearly, the father became quite ill and at one point, used heroin a week before the detox program which he undertook. The father remains positive that the relapse will not be repeated.

4. The father has a long held view that the mother gave priority to her relationship with her carer Mr A, over her relationship with her daughter:  “I was upset that she abandoned her daughter to be with Mr A.”  However, the father has taken a pragmatic view.  He is not sure whether there was sexual misconduct involving the child with Mr A and he continues to be concerned that she appeared to have more sexual knowledge than could be accounted for. 

5. He received some comfort from the expressed view of Dr R that it seemed unlikely that the child had been sexually assaulted by Mr A.  His pragmatism comes in the form of a statement that he knows there will never be any certainty on the topic.  Likewise, he does not accept the mother’s assertion that there is no intimate personal relationship between herself and

   
   

   Mr A, but accepts that it is not his business.

6. The father expressed a willingness to participate in mediation with the mother to see if they could restore communication for the sake of their daughter.

7. The father was frank about the extent to which his drinking had affected the child, including a quickness to use physical punishment, namely smacking, when he was affected by alcohol.  He agreed to an order that there be no physical punishment and that order has been made.  He also conceded that the child had become more independent than she should have at this age and had seen things she should not have as a result of his conduct.  He further explained how she had sought help from neighbours when he had failed to meet her needs for supervision, hygiene and even food.

8. In addition, the child has had to deal with a breakdown of the father’s relationship with Ms M a constant supportive figure in her life.

9. The father had previously concealed from the Court the breakdown of the relationship as well as the extent of his drinking.  He said and I accept that he knew that there would be subpoenae evidence and the fact of his rehabilitation in Hospital M would become part of the evidence.

10. The father says he is no longer drinking alcohol at all.  If that continues to be the case it will be a very positive step for his daughter.  The father also expressed a willingness to accept guidance and advice from the Director-General of the Department of Community Services for as long as necessary.

11. The child does have a meaningful relationship with her father, but clearly it was strained to the limit when the father relapsed into alcohol abuse and drug use.  He lost focus of her needs at that time and she was, at least on some occasions, exposed to neglect, which although it has not given rise to psychological harm, has detrimentally affected her life and impacted on her education.

12. I accept that Ms M loves the child and treats her as one of her own children.

Section 60CC(3) Additional considerations

Section 60CC(3)(a) Any views expressed by the children and the weight it should give to the child’s views

1. The child told Dr R in answer to a question about seeing more of her mother that she would like to see her mother on Saturdays.  She said she was disappointed that she did not see more of her mother.  She said that she got on well with Ms M and her children.  Although she could hardly remember Mr A, she had found him annoying and that she did not like her father’s drinking. 

2. The child presented to Dr R as a child who was developing well both cognitively and emotionally for her age.

   She was progressing surprisingly well despite the chaos in her life and the limitations of her parents.  She was quite insightful into the problems of her mother and her father’s alcohol abuse[5].

   [5]Report of Dr R dated 10 June 2011, p 18, lines 640-643

3. The case of R v R: Children’s Wishes (2000) FLC 93-000 provides at [43] that:

   The court will attach varying degrees of weight to a child's stated wishes depending upon, amongst other factors, the strength and duration of their wishes, their basis, and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications

4. The child was 10 at the time she expressed her views and some weight should be given to them. 

5. She has suffered significant losses, most particularly the loss of her relationship with her mother and the loss of her father’s support when he was adversely affected by alcohol.  She has had inadequate levels of support and attention from her parents, although she loves both of them.  Her expressed wish to spend more time with her mother should be given considerable weight. 

1. Accordingly, the orders provide for unsupervised time on a regular monthly basis, which strikes a balance between not overloading the mother and providing for the child to spend more enjoyable time with her mother, especially as she grows older.

Section 60CC(3)(b) The  nature of the relationship of the children with each of their parents and other persons

1. The child has her most significant relationship with her father, but is hopeful of enjoying more time with her mother over the coming years.  She has an important affectionate relationship with Ms M and also enjoys relationships with Ms M’s children.

Section 60CC(3)(c) The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship

1. The mother failed to participate in the child’s life for many years.  She felt unable to make contact with the father.  The father felt unable or unwilling to make contact with the child’s mother, seeing her as having abandoned their daughter.  The impact of this resistance to communication has fallen on the child.

2. The mother has been unwilling to communicate with the father.  If she changes her view and decides to participate in therapeutic mediation, there will be a benefit to the child.  The order provides for the father to join in if the mother initiates the process.

Section 60CC(3)(d) The likely effect of any changes in the child’s circumstances

1. The child is likely to benefit from spending enjoyable periods of time on a regular basis with her mother and spending short periods of time on special occasions such as birthdays and Christmas.

2. Changeovers in the past have been problematic, but there is a cooperative relationship between the mother and Ms M which may mean that the child can pass more easily between the two households without being exposed to conflict and without being in the shadow of a police station.  At 11 years old the parents should recognise the impact of such a changeover point for the child.

Section 60CC(3)(e) the practical difficulty and expense of the children spending time with and communicating with a parent

1. The mother cared for the child for the first six years of her life with the assistance of the father.  The father has cared for the child almost exclusively for the past five and a half years of her life, with no financial support and little input from the mother.

Section 60CC(3)(f) The capacity of the child’s parents to provide for the needs of the children

1. The father has a capacity to meet the child’s emotional and intellectual needs, although he has lost capacity on more than one occasion throughout her life through the abuse of drugs and alcohol.  When sober and functioning he is a good father, interested in her education and supportive of restoring her relationship with her mother.

2. The mother has a limited capacity to provide for the needs of the child, . This is demonstrated by her behaviour in the past where she has subordinated her daughter’s needs to her own, whenever she has been under pressure.

Section 60CC(3)(g) The maturity, sex, lifestyle and background of the child

1. The child is 11 years old.  She starts high school next year.  She undoubtedly suffered from losing all contact with her mother for a period of many years.  She has become insightful about the problems of her parents and needs to be protected from feeling responsible for either of them.

Section 60CC(3)(j) Any family violence involving the child or a member of the child’s family

1. There has been in the past an AVO for the protection of the mother against the father in the very early years of their relationship and for the child against Mr A shortly after separation. 

2. In his report Dr R referred to the fact that the mother was confident that Mr A had never behaved inappropriately with the child and believed it was highly unlikely that he would sexually assault her.  I accept the opinion of Dr R that little confidence can be placed in the mother protecting the child if that meant taking a stand: 

   I believe that emotionally she can’t cope with conflict or emotional turmoil so her way of coping is avoidance[6]. 

   [6]  Report of Dr R dated 10 June 2011, p 21-22, lines 797-799

3. Dr R himself formed the view that it was highly unlikely that sexual abuse did occur.  However, there does not seem to be any independent reason for there to be a relationship between Mr A and the child.  She has very little memory of him and what memory she does have is negative. 

4. Accordingly, there is an order that Mr A be restrained from participating during periods of contact the child has with the mother other than assisting the mother with transport to and from contact changeovers. 

5. This order is not a critical reflection on Mr A.  It is to avoid a situation again arising where suspicions that the father or others may have about Mr A disrupt the relationship between the child and her mother.

Section 60CC(3)(l) Whether it would be preferable to make the order that would be lease likely to lead to the institution of future proceedings

1. The child is almost finished her primary education.  The orders provide for her to go on spending regular time with her mother in person and by telephone.  The relationship will develop if the mother continues to be committed to spending the time and trying to focus on those activities that are most enjoyable for the child at her age and stage of development..

Section 60CC(3)(m) Any other fact or circumstance that the Court thinks is relevant

1. The child has had a long standing problem inadequately explored and treated in relation to her spine.  The Independent Children’s Lawyer focused on the need for medical treatment to be undertaken in this regard and the father committed himself to obtaining medical advice on the need for treatment and accept the guidance of the Director-General.  

2. The Independent Children’s Lawyer also recommended that the father and his partner maintain contact with the Hunter New England Local Health District family team who have engaged with the family and prepared a discharge report[7].  An order has been made accordingly.

   [7]  Exhibit 5 Discharge Report 28 February 2012

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 31 August 2012.

Associate: 

Date: 31 August 2012