Farnham and Farnham

[2007] FamCA 1688

FAMILY COURT OF AUSTRALIA

FARNHAM & FARNHAM [2007] FamCA 1688

FAMILY LAW – CHILDREN – With whom a child lives – Relationship between father and child – Father’s mental and emotional health and propensity to violent and threatening behaviour make it difficult to see how the child could enjoy a meaningful relationship with the father – Evidence indicates child’s exposure to harm or abuse would be extreme in the company of the father – Consideration of s 60CC factors – s 61DA presumption rebutted – Mother to have sole parental responsibility for the child
Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA & 65DAA
APPLICANT:	Mr Farnham

RESPONDENT: Ms Farnham

INDEPENDENT CHILDREN’S LAWYER: Mr Terry Stephen

FILE NUMBER: ADF 579 of 2003

DATE DELIVERED: 22 November 2007

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Burr J

HEARING DATE: 22 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: No appearance by or on behalf of the Applicant

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms M Dickson

SOLICITOR FOR THE RESPONDENT: Women's Legal Service (SA)

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr M Pickhaver

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

Orders

1. All previous current Orders be discharged.

2. The child … born … June 2000 do live with the mother who shall have sole parental responsibility for the said child.

3. The appointment of the Independent Children’s Lawyer be discharged.

4. All applications be dismissed and removed from the pending list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 579  of 2003

MR FARNHAM

Applicant

And

MS FARNHAM  

Respondent

REASONS FOR JUDGMENT

1. I have before me today the Amended Response filed by the mother in these proceedings on 7 August 2007.  In it she seeks a raft of Orders relating to the child of her relationship with the father, that child being … (“[the child]”) born in June 2000.  Thus the child has relatively recently turned 7 years of age.

2. There has been a relatively extensive history between the parties commencing in this Court on 11 March 2003.  Those proceedings ultimately led to final Orders being made on a default basis by Registrar Kelly on 17 August 2004 and, pursuant to those Orders, the child was to reside with the mother who was to have sole responsibility for her day to day care, welfare and development and the child’s contact with the father was to be as agreed.

3. Subsequently the matter was re-agitated by the father when he filed an Application for Final Orders on 24 February 2006.  Of recent times though his attention to the matter has been marked by non-compliance and on the last occasion or two, non appearance.  The father has been called three times today and there is no appearance by him.  This is despite the Court having written to him advising him of the hearing before Registrar Thomas on 4 October 2007 and there was no appearance by him on that day, and the letters to him forwarded by the mother’s solicitor on 8 October 2007 and 11 October 2007 (copies of which have been provided to me today by the mother’s Counsel).  For the sake of formality, I order that the mother’s solicitor file an Affidavit annexing those two said letters, although for now I will keep the copies tendered on the Court file.

4. The parties were married in November 1999 and the child was born a short time thereafter in June 2000.  The parties’ marriage did not survive for long and they separated in April 2002.  Since that time the mother’s role in caring for the child in the face of some extreme and intimidatory behaviour by the father, has been a particularly difficult one.  However, having ready all of the materials relevant to this application on the Court file, it is to be said that her attention and devotion to the task has been exemplary.  Despite the considerable obstacles placed in her path by the father’s ill health and consequent quite dangerous, violent and threatening disposition, she has done her best for a long time to maintain the father’s relationship with the child and when that ultimately failed, to maintain a relationship between the child and the paternal grandmother.  In fact the child sees the paternal grandmother on a regular basis and they have a close and loving relationship.

5. In reaching my decision in this matter I have had regard to a number of documents on the Court file which I would have to say are extremely compelling.  One of them is a report of Dr B dated 15 September 2006 which is annexed to the affidavit of the Independent Children’s Lawyer filed on 21 September 2006.  Dr B records within that report the considerable difficulties the father has encountered with his mental and emotional health, and consequent physical health and as a consequence, the numerous difficulties which have been confronted by the mother in these proceedings.  His recommendations were quite clear that the child was to continue to live with her mother and that some cautious steps ought to be taken to introduce a contact (as it then was) regime with the father.  All of that though was very much dependent upon a psychiatric evaluation of the father.

6. I have also relied upon the report of psychologist Dr W dated 9 January 2007 which is annexed to the affidavit of the Independent Children’s Lawyer filed on 18 January 2007.  That report of Dr W is indeed a comprehensive one but makes particularly disturbing reading.  I do not intend to do it any injustice by seeking to summarise it but it describes the father as having extreme psychopathic traits exacerbated by his alcohol and drug problems and on page 10 of his report within paragraph 3.6 Dr W says this:-

   “ …. It was noted that [the father] scored in the ‘extreme’ range and at that time was judged to be ‘the most extreme category of psychopath’.”

7. The mother’s solicitor filed a further affidavit on 19 October 2007 to which are annexed a number of documents.  Among those documents is a psychology report prepared by Dr A dating back to 1993.  Again, it makes particularly disturbing reading in that Dr A describes the father, on page 10, as exhibiting “a number of personality characteristics that may well make him an extremely dangerous person.  Given his intense interest in guns and his extreme level of expressed aggression, the potential for homicidal acts must be considered a very real possibility.”

8. Subsequent to that and in fact as recently as August 2007, the father was detained under the Mental Health Act and the reports contained in the aforesaid affidavit filed on 19 October 2007 and associated with that detention indicate that the father made a number of threats to bomb the hospital if he was not discharged and that he remained verbally abusive and particularly aggressive and threatening.

9. Given all of that history it is, as I said earlier, to the extreme credit of the mother that she tried for so long to maintain a relationship between the child and the father in circumstances which were safe for the child.  It is a credit to the paternal grandmother also that she did what she could to assist that relationship with her son and put herself in the place of endeavouring to ensure the child’s safety on occasions that she supervised time that her son spent with the child. It seems regrettable that all of this has come to naught in that all recent reports indicate that the father is still struggling with his health and it seems that there are lengthy periods when he either does not take appropriate medication or he completely diminishes or overrides the benefit of that medication by his addiction to drugs and alcohol.

10. Having considered all of those matters, I need also to consider the relevant provisions of the Family Law Act 1975 as amended. Section 60CA requires me to consider the interests of the child as being the paramount consideration and in doing so, I am guided to Section 60CC of the Act which sets out some primary considerations and some additional considerations. The primary considerations are that I have to consider the benefit to the child of having a meaningful relationship with both of the child’s parents. Given the father’s extreme illness and propensity to violent and threatening behaviour, it is difficult presently to see how the child could enjoy a meaningful relationship with her father. If indeed he is able to address his many health issues it may not be a matter that is completely beyond possibility but all present indications suggest that it would be difficult.

11. The second primary consideration is the need to protect the child from physical or psychological harm and being subjected to, or exposed to, abuse, neglect or family violence. This primary consideration is particularly relevant to my determination today.  All of the materials to which I have referred above indicate that presently the child’s exposure to such harm or abuse would be extreme in the company of her father, particularly any unsupervised time that he may have with her.

12. Additional considerations require me to consider:-

(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's wishes;

1. The child is too young really for those views to have any impact upon my determination but as to the question of whether or not she would like to reside with her mother, it is quite obvious that that issue would be determined in the affirmative.  The mother has been the primary carer for the child and her principal anchor in life. 

(b)the nature of the relationship of the child with:

(i)     each of the child's parents; and

(ii)    other persons (including any grandparent or other relative of the child);

1. The child’s relationship with her mother is clearly the most important relationship to her. As I said, the mother has battled through some extraordinarily difficult times to remain focussed on the child’s well being throughout.  It is to her utmost credit that she has been able to do so, despite those appalling difficulties that she has faced.  The child’s relationship with her father may be retrievable in the future, but is presently made impossible by his ill health.  As I said earlier, the child though enjoys an excellent and close relationship with the father’s mother and thus she will maintain her contacts with the father’s side of the family through that very important and significant relationship.

(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

1. In my view, the mother has not only done what she could, she has probably done more than could have been expected of her in trying to encourage a continuing relationship between the child and the father.  Without any evidence from the father, it is not possible for me to make any findings as to what he might have contributed to continuing a close relationship with his daughter.  However again it is clear that his ill health has impeded his capacity to do so.

(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)     either of his or her parents; or

(ii)   any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

1. Again, there is no proposal that the child’s life change in any way in terms of her present circumstances.  The mother’s role needs to be endorsed by final Orders of this Court and, of course, as I have heard and seen from the filed documents, there will be no change in the child’s circumstances in terms of her relationship with the paternal grandmother.  In fact, it seems entirely predictable that their relationship will continue to grow and thrive.

(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

1. This sub-section is not relevant to my determination.

(f)the capacity of:

(i)     either of his or her parents; or

(ii)    any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living; to provide for the needs of the child, including emotional and intellectual needs;

1. Again, because of the father’s ill health, it is clear that he is not presently in a position to provide for the child’s needs in that regard.  However, the child’s mother and indeed her paternal grandmother clearly have that capacity.  The mother’s capacity appears to be enormous in terms of the difficulties that she has faced.

(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

and

(h)if the child is an Aboriginal child or a Torres Strait Islander child:

(i)     the child’s 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

(ii)    the likely impact any proposed parenting order under this Part will have on that right;

1. These sub-sections are not relevant for my determination.

1. the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

1. No additional matters for consideration emerge pursuant to this sub-section.  I have covered it in my reasons above.

(j)any family violence involving the child or a member of the child's family;

1. Again, I have touched upon this when dealing with the primary considerations.  The mother’s efforts have been more than commendable in shielding the child where she could from the potential violent consequences of the father’s ill health.

(k)any family violence order that applies to the child or a member of the child's family; if:

(i)     the order is a final order; or

(ii)    the making of the order was contested by a person;

1. The mother has secured a domestic violence restraining order against the father, which order is a final order made only recently.

(l)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 the child;

1. Again, the one and only Order that could be made in that regard presently is an Order that the child reside with the mother and that the mother have sole parental responsibility for her.

(m)any other fact or circumstance that the court thinks is relevant.

It is my view that there is no other additional fact or circumstance that warrants my consideration.

1. I then need to consider the provisions of Sub-section (4). 

2. Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:

   (a)    has taken, or failed to take, the opportunity:

   (i)     to participate in making decisions about major long-term issues in relation to the child; and

   (ii)    to spend time with the child; and

   (iii)   to communicate with the child; and

   (b)has facilitated, or failed to facilitate, the other parent:

   (i)     participating in making decisions about major long-term issues in relation to the child; and

   (ii)    spending time with the child; and

   (iii)   communicating with the child; and

   (c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

3. It is clear that again, the mother has done all that she could to fulfil her responsibilities as a parent in seeking to facilitate a relationship between the child and her father in the very difficult circumstances that she faced.  The same cannot be said of the father, again because of his ill health.

4. No other sub-sections within Section 60CC are relevant for my determination.

5. I need then to consider the provisions of Section 61DA which is the presumption of equal shared parental responsibility when making parenting orders. Again, there are numerous reasons already indicated by me as to why it is that that presumption ought to be set aside and that the mother ought to have sole parental responsibility. That particularly arises when one considers sub-section (2) which says:-

   (2)    The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child ) has engaged in:

   (a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)family violence.

6. I am satisfied that the presumption is well and truly rebutted on this occasion based on the evidence before me that it would not be in the child’s best interests for there to be equal shared parental responsibility.  Given that I have made that determination, it is not necessary for me to consider the provisions of Section 65DAA.  It is not necessary for me to consider the issues of equal time or substantial and significant time.

7. The application of the mother has the full and unwavering support of the Independent Children’s Lawyer and, in those circumstances and for all of the reasons expressed by me, I make Orders in terms of the Minutes this day signed by me.

I certify that the preceding thirty [30] paragraphs are a true copy of the reasons for judgment of the Honourable Justice  Burr

Associate 

Date:  22 November 2007