Ferdinandi and Ferdinandi

[2009] FamCA 732

FAMILY COURT OF AUSTRALIA

FERDINANDI & FERDINANDI [2009] FamCA 732

FAMILY LAW - CHILDREN - With whom a child lives - Father filed a Notice of Discontinuance and has not participated in these proceedings - Child to live with the mother and the mother is restrained from permitting the child to have contact with the father unless she is satisfied the father is not using illicit substances or abusing prescription medication and is no longer involved in criminal activity - Mother to have sole parental responsibility for the child

Family Law Act 1975 (Cth)

APPLICANT: Ms Ferdinandi

RESPONDENT: Mr Ferdinandi

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: (P)NCC 1322 of 2008

DATE DELIVERED: 9 June 2009

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: The Hon. Justice Ryan

HEARING DATE: 9 June 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Moin & Associates
Mr Munday

RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms O'Rourke, Legal Aid NSW

Orders

1. That all prior parenting orders be discharged.

2. That the child … born … September 2005 live with the mother.

3. That the mother have sole parental responsibility for the child.

4. That the Independent Children’s Lawyer has leave and is directed to provide a copy of the report prepared by Ms S in March 2009 to the Director-General of the Department of Community Services.

5. The mother is restrained from permitting the child to have contact with her father unless the mother is satisfied that the father is not using illicit substances or abusing prescription medication and is no longer involved in criminal activity.

6. That 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 under the pseudonym Ferdinandi & Ferdinandi is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1322  of  2008

MS FERDINANDI

Applicant

And

MR FERDINANDI

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE

REASONS FOR JUDGMENT

1. These reasons were delivered orally.

2. This is an application for parenting orders concerning the parties' daughter. The child was born in September 2005.  The child was two and a half months when her parents separated.  She has lived with her mother ever since.

3. These proceedings commenced in February 2008.  During the course of the proceedings, because of the grave parenting issues raised in the parties' affidavits, the Court ordered an assessment by a Clinical Psychologist.  This was undertaken by Ms S whose report was released on 26 March 2009.  The report is relied upon by the Independent Children's Lawyer and the mother.

4. Following release of Ms S’s report the father filed a Notice of Discontinuance.  At the point he did so he was legally represented and as the procedural history demonstrates, he was aware that the matter was listed for final hearing today.  He has not appeared.  I am informed the probability is he has relocated to a place not known to those involved in the proceedings.

5. Ms S’s report records a very troubling history in so far as the father's use of illegal and prescription drugs of addiction is concerned.  She says, and it is clearly an opinion reached following inspection of a large volume of subpoenaed documents, that the father has an extensive history of violent and abusive behaviour and that he has been gaoled for domestic violence.

6. Ms S’s opinion is supported by the facts deposed to in the mother's affidavit.  Ms S comes to the view that although the child is unlikely to have conscious memory of life with the father and the violence which he inflicted upon the mother, it is to be expected that she has a subliminal recollection of his violence.  She has a heightened need for protection from him and further exposure to violence or danger.

7. The father's history of criminal activity, violence, impulsivity and irresponsibility; his drug use being associated with all of these factors, makes it plain that he is presently unable to exercise either his parental responsibility towards his daughter or could be trusted to spend time with her, even on a supervised basis.  The incidents recounted at pars 34 and 35 of Ms S’s report make this abundantly clear.

8. The sad reality of the child’s life is that of her parents, the only parent who is in a position to care for her, or indeed who is interested in caring for her, is the mother.  I say this with no disrespect to the mother, it being a reflection of disappointment that a person who is a parent (the father), fails to take reasonable steps to care for the child they have brought into the world.

9. There is no doubt on the evidence provided to me, that the orders proposed by the mother and supported by the Independent Children's Lawyer are in the child’s best interests as defined in the Family Law Act1975. 

10. I pause to observe that before the father contemplates bringing any further parenting application he should ensure that he has taken very serious steps to address his addictions and improve his lifestyle.

11. Should he present to the Court seeking time with his daughter, even on an unsupervised basis, he ought to appreciate that unless he has participated in something like a prolonged period of residential drug rehabilitation and can demonstrate that his propensity for crime is very much a thing of the past, his prospects of success are extremely limited.

12. I agree with the Independent Children's Lawyer that the recommendations made by the Single Expert for the release of her report to the Department of Community Services is an important child protection measure so that if per chance the mother decided to re-partner with the father, upon the Department of Community Services becoming aware of this one would expect it could act to ensure the safety of the child.  It being self evident that if the mother took this step without the father making the changes to which I have referred, she similarly would be prima facie unable to ensure the child's safety.

13. For these reasons I am satisfied that the orders identified at the start of these reasons are in the child's best interest.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate: 

Date:  13 August 2009