Foley and Foley

[2009] FamCA 652

FAMILY COURT OF AUSTRALIA

FOLEY & FOLEY [2009] FamCA 652

FAMILY LAW – CHILDREN – application by the mother seeking an injunction restraining the father from allowing the children to reside at or visit any premises occupied by a dog or to come into contact with the father’s partner’s dogs – where the parties have previously resolved all other issues in dispute by consent – where one of the children was previously injured by the father’s partner’s dog – whether the father demonstrates an appropriate capacity to protect his children – where the father is no longer in a relationship with his partner – unnecessary to make any order – application dismissed

Family Law Act 1975 (Cth) ss 60CA & 60CC(2)(b)
APPLICANT:	Ms Foley

RESPONDENT: Mr Foley

FILE NUMBER: ADC 5437 of 2007

DATE DELIVERED: 25 June 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

EX TEMPORE REASONS OF: BURR J

HEARING DATE: 25 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Berman

SOLICITOR FOR THE APPLICANT: Angela Ferdinandy

COUNSEL FOR THE RESPONDENT: Not applicable

SOLICITOR FOR THE RESPONDENT: Husband in person

Orders

1. That paragraph 1 of the mother’s Amended Application in a Case filed on 3 July 2008 be dismissed.

2. That paragraph 3 of the Orders made by the Honourable Justice Strickland on 8 August 2008 be discharged.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 5437  of 2007

MS FOLEY

Applicant

And

MR FOLEY

Respondent

REASONS FOR JUDGMENT

1. I have before me today contested proceedings between the parties in respect of one very limited issue.  It arises originally from an Amended Application in a Case filed by the wife on 3 July 2008 and in particular, paragraph 1 thereof in which she sought the following order:-

   “That the husband be restrained and an injunction be granted restraining the husband from allowing the children to reside in or visit any premises occupied by any dog or to come into contact with any of the husband’s partner’s three dogs, or from permitting any other person to do so.”

2. In weaving its way through the Court’s system it came before Strickland J on 8 August 2008 and his Honour made a consent order in paragraph 3 in these terms:-

   “By consent that at all times the husband ensure the safety of the said children in relation to any dog.”

3. This is the remaining issue in dispute between the parties.  To their credit, they had earlier resolved all of the more significant issues that impacted upon them, particularly in relation to property and children’s issues.  Orders resolving both of those issues were made on the same day, namely 23 March 2009.  They were orders made by me by consent and they recorded that the children live with both of their parents for significant portions of each week but with the majority of each week being spent with the mother.   Importantly though the Orders recorded the parties’ agreement that they have equal shared parental responsibility for the children.

4. In determining this issue I must have regard to the provisions of Part VII of the Family Law Act 1975 as amended, and in particular Section 60CA. That section requires me in making my decision today to have regard to the best interests of the children as the paramount consideration. That section guides me to Section 60CC which indicates that there are both primary and additional considerations to which the Court must have regard. Probably the most relevant of those is the second of the primary considerations, namely:-

   (b)the need to protect the child from physical or psychological harm and being subjected to, or exposed to, abuse, neglect or family violence.

   In my view, none of the additional considerations bears any particular additional relevance to the matters before me for determination.

5. Put simply, the specific issue is as to whether or not the father demonstrates an appropriate capacity to protect his children from dogs. This situation arose specifically from an incident which occurred on 1 June 2008.  At that time the child was in the care of the father and the father was visiting his fiancée Ms H who owned three dogs, one being a Kelpie Cross.  The parties are not in dispute that on that day the child was bitten on the left eyebrow by the Kelpie Cross.  There was some dispute between Counsel for the wife and the husband as to what terminology might properly describe what happened on that day but in any event the dog either “nipped” or “bit” the child leaving him with a relatively minor injury to his left eyebrow. 

6. Thereafter, there was some communication between the solicitors for each of the parties dealing with this particular topic.  Of particular concern as it emerges from the documents is the husband’s propensity in his evidence today and in the communications between solicitors, to blame the child for the injury.  In his solicitor’s letter there were various references to things such as the child tormenting the dogs, being rough in his conduct with the dogs, chasing them with a sword and kicking them in the stomach.  There was also a reference, probably particularly unfortunate in its expression, that if there was any maliciousness it came from the child and not from the dog.  That, in my view, significantly sheets the blame home to the wrong quarter.  In my view it is totally unrealistic and entirely improper to blame a child for the injuries that it has sustained in dealing with the dog.  All possible precautions must be taken when children are around dogs or in any other situations where some danger may be faced by them, by the parent who is charged with their care to exercise all reasonable caution and ensure that children are free from the possibility of injury in those or any of the other circumstances that arise in life.

7. It was the father’s evidence that he has taken significant steps to educate the children as to appropriate behaviour around dogs and he has noted a particular and confidence boosting change in the children, particularly in the child, when there are dogs around.

8. The issue though, in my view, is rather more whether or not there is any evidence to suggest that the father is not capable of exercising proper care and responsibility towards the children, responsibility which was by agreement given to him on an equal footing by the wife.

9. Issues around dogs and safety in society generally, I believe, are sheeted home more appropriately to the allocation of parental responsibility.  Thus there would be a myriad of examples, some of which I promoted in discussion with Counsel and the husband, in which children could find themselves at risk. 

10. If the father was still in a relationship with Ms H and the children were therefore exposed to these three dogs, but particularly the Kelpie Cross which has already bitten the child once, then it may well have been appropriate to make a specific order to deal with that specific occasion and eventuality.  However, the father’s evidence is that he is no longer in a relationship with Ms H and as a consequence the dogs have gone with her.  I accept his evidence in that regard and in my view that specific possibility of danger and risk to the children has been removed.  In my view it is otherwise appropriate to trust the husband and indeed the wife in the proper exercise of their parental responsibility which has been entrusted to each of them.  In my view it is unnecessary to make any other specific order in relation to that matter.  If it is otherwise necessary for me to do so, I dismiss paragraph 1 of the wife’s Amended Application in a Case filed on 3 July 2008.

I certify that the preceding ten (10) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr.

Associate: 

Date: 25 June 2009