Gulloway and Tarneit

[2008] FamCA 412

FAMILY COURT OF AUSTRALIA

GULLOWAY & TARNEIT [2008] FamCA 412

FAMILY LAW – CHILDREN – Sole parental responsibility

Family Law Act 1975 (Cth)

FATHER: MR GULLOWAY

MOTHER: MS TARNEIT

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 1146 of 2005

DATE DELIVERED: 17 JUNE 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 16 JUNE 2008

REPRESENTATION

COUNSEL FOR THE MOTHER: MS SNYDER

SOLICITOR FOR THE MOTHER: SUSAN SNYDER

FOR THE FATHER: NO APPEARANCE

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MR LAMPE

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: LAMPE FAMILY LAWYERS

Orders

1. That all existing orders be discharged.

2. That the mother have the sole parental responsibility for the child … born … December 2002.

3. That all extant applications are otherwise dismissed and all proceedings are removed from the list of cases awaiting a hearing.

4. That the Independent Children’s Lawyer be discharged from the proceedings.

AND THE COURT NOTES

A.The father has not attended the final hearing this day and there are now no existing orders for him to spend time with or communicate with the child.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1146  of 2005

MR GULLOWAY

Father

And

MS TARNEIT

Mother

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. On 16 June 2008, I made final orders in this parenting application concerning the child of the parties who was born in December 2002. 

2. The father in the proceedings who was the initial applicant, failed to appear.  I am satisfied that he had sufficient notice of the proceedings for them to proceed in his absence.

3. I was informed by the Independent Children’s Lawyer that last Friday, a person who identified herself as the father’s mother telephoned the office of the Independent Children’s Lawyer to indicate that the father was in gaol.  She said that she was not sure for how long or why he was in gaol.  Added to that is the fact that as a consequence of the orders I made earlier in the proceedings, Ms Snyder, the solicitor for the mother, contacted the Victorian Office of Corrections giving them documents upon which the mother relied for these proceedings.  Ms Snyder told me that she was assured that the documents would be sent on to the father. 

4. It is important to also factor in that I have evidence from the mother that the father has not had any face to face time with the child since late 2007 and no telephone communication since earlier in 2008.

5. Notwithstanding the father is apparently in prison, even his mother seems vague about his intentions.

6. It is also to be noted that the father had been the applicant and did not appear when I made orders on 21 April 2008.  In preparation for that day, a letter was sent from my chambers on 15 April 2008 setting out what requirements I had for fixing the matter for trial.  The court file shows that the letter was sent to the father at G Street, S, and I have been told that that is the address of his mother.  The court record shows that that is the address that the father was using.  On 27 June 2007, Victoria Legal Aid who were the solicitors on the record for the father filed a Notice of Ceasing to Act.  In that Notice, they advised that the last known residential address for the father was G Street, S.

7. In the circumstances, having regard to the fact that this case involves a child in the care of the mother, it is appropriate for the case to proceed to finality as quickly as possible.  In so far as the father feels aggrieved by the orders that I have made, he will have his appropriate remedies to rectify the position.

8. The mother is 27 years of age.  The father is 28 years of age.  The relationship between the parties commenced whilst they were very young.  Throughout the relationship, according to the mother, there were occasions of violence and drug taking.  The relationship ended in March 2004.  At that time, the child was only 16 months of age, he having been born in December 2002.

9. The mother asserted that she had been the person primarily responsible for the welfare of the child and subsequent to separation until now, that does not seem to have been a contentious matter.  In an affidavit that the father filed on 21 March 2005, he complained that he had had difficulty arranging “contact” about the child.  The appropriate inference can therefore be drawn that notwithstanding his complaint, it was the mother who was caring for the child on a permanent basis. 

10. The father acknowledged in that same affidavit that he spent time in the Western General Hospital suffering from “nervous stress and seizures”.  He said that they were all related to his breakdown of the relationship and the separation from the child.

11. In an affidavit that the father filed on 11 July 2005, he responded to the assertions of the mother.  He conceded to having a history of drug use, criminal behaviour and imprisonment.  He denied violence towards the mother.

12. During the period of 2005 when the parties were engaged in interim proceedings, the Court made an order for the child to have separate representation.  When the matter was before the Court on 11 July 2005, all parties consented to an interim order that the child reside with the mother and that she have the sole responsibility for the decisions relating to the child.  At that time, the father was to spend time with the child at the Gordon Homes Contact Centre for two hours every alternate week.  Importantly, in those orders, Senior Registrar FitzGibbon said that the implementation of the time at Gordon Homes was not to commence until a psychiatric report had been prepared on the father. 

13. Dr K swore an affidavit in the proceedings.  It was filed on 28 November 2006.  Dr K prepared a report attached to his affidavit which was dated 9 February 2006.  He had seen the father on 2 February 2006 no doubt in compliance with the orders to which I have just referred. 

14. According to the historical account given by the father, he had a past medical history of epilepsy but no past psychiatric history.  He admitted a conviction and imprisonment for drug offences and having been fined in 1999 for being in a fight. 

15. Dr K said that the father was someone of average intelligence.  He said his personality was such that there was some immaturity.  He described him as being of rather rigid temperament. 

16. Dr K described him as having an immature personalty disorder.  He said he was in remission from “multi-substance abuse problems including heroin”.  Dr K felt that specialist psychiatric treatment had nothing to offer and that it was appropriate to wait the passage of time.  He said that if he remained free from substance abuse, there would be an improvement in the personality disorder.

17. In summing up, Dr K described the father as having serious psychiatric problems but they were showing signs of improvement.  There was little doubt in Dr K’s mind that any time between the child and his father needed to be at least supervised at that point in time.

18. It was put on behalf of the mother that notwithstanding the father had been able to see the child at Gordon Homes regularly each alternate week, he had not availed himself of the opportunity to do so.  A similar comment was made in respect of the telephone communication.

19. Having regard to all of those factors, there is little more that needs to be said about the historical facts of this case.  It is more important that I concentrate on what is being offered by the mother for the future care of the child.  I have little confidence about what the father can offer.

20. The child is now at R Primary School.  He commenced earlier this year.  According to his mother, he is happy and healthy.

21. The mother has repartnered.  That relationship has existed for about three years.  There is a child of that relationship S who was born in March 2007.

22. The mother and her partner live with the children in rented accommodation.  Their relationship and environment seems settled on the material that I have read.

23. The mother works part-time and is otherwise supported by her partner and payments from Centrelink. 

24. Notwithstanding the protestations of the father to which I have earlier referred, the mother described the relationship as one in which he punched, pushed, poked and spat on her.  This included knocking her out when she was 15 years of age.  According to the mother, he punched her in the face as late as 2003.  According to the mother, the father has served at least three terms in prison involving convictions for theft, drug use and burglary.  It is clear on the evidence from the mother that the father has not fulfilled the opportunities to have a meaningful relationship with the child in that he has not attended all of the possible contact visits organised through Gordoncare.

25. As a result of the failure of the father to attend those Gordoncare Centres, the service has been suspended.  Even if I was therefore mindful to make some sort of arrangement along the lines suggested by Dr K that it be supervised, the father would need to renegotiate with Gordoncare so that he would have a relationship with them.

26. The only conclusion that I can draw is that the father has not provided a stable environment that would benefit the child.

27. Notwithstanding the father has not participated in the proceedings, I have before me an application for parenting orders.  Because of that, s 60CA says that when deciding whether or not to make a particular parenting order, I have to regard the best interests of the child as the paramount consideration.  In doing that exercise, the Family Law Act 1975 (Cth) (“the Act”) requires that I consider the matters set out in s 60CC.

28. Section 60CC(2) requires me to firstly consider the two primary considerations.  The first of those is the benefit to the child of having a meaningful relationship with both of his parents.  There can be little doubt that his relationship with his mother is close, loving and meaningful.  There is no evidence before me that the father has a consistent relationship with the child nor one that is without risk of interruption.  Whilst it is an admirable objective to have a meaningful relationship, it is not one that the Court can foist upon a parent who is either reluctant or incapable of creating the appropriate environment.  In this case, I am satisfied that the father does not have the will to pursue the sort of relationship that the child is entitled to have with both parents.

29. The second primary consideration is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.  All of those concerns are a problem in this case.  Without supervision, having regard to the psychiatric diagnosis by Dr K of the father, I could not be comfortable in saying that the child would be protected from both physical and psychological harm.  The father has a criminal history involving dishonesty and violence.  He has a history of drug usage.  The father has been diagnosed as having a psychiatric disorder.  All of those are a cocktail of potential problems for a child of the age of this child.  It is important that he be protected from risks associated with a father who may flare when angered and fail in his duty when drug affected.

30. Any meaningful relationship combined with a need to protect the child from those aspects of harm would certainly require supervision by someone in whom the Court could have confidence.

31. In also determining what is in the child’s best interests, there are the additional considerations set out in s 60CC(3).

32. There is little weight to be given to the views of a child of the age of this child in circumstances where the parenting issues are complex as they are here.  I am satisfied that the child has a very close relationship with his mother and with his sibling from her new relationship.  There is no suggestion that the relationship with his step-father is anything other than positive and stable.  I do not have any confidence that I fully understand the nature of the relationship between the child and his father.  That is entirely the responsibility of the father who notwithstanding his protestations in 2005 about the mother’s attempts to keep him out of the child’s life, has failed to fulfil the opportunities to develop that relationship.

33. I am also satisfied that the mother has endeavoured to facilitate the relationship particularly having regard to the fact that it was at the contact centre but that the father has not assisted in his own son’s development.

34. I have no evidence as to what would occur with the child should he be away from his mother in any event. 

35. There may very well be some practical problems in developing the relationship through a supervised intermediary at this stage having regard to the fact that the father is apparently in prison.  If what his mother told the Independent Children’s Lawyer is right, it is apparent that he is not communicating his own movements to his mother. 

36. It is also clear that the father has very limited capacity to understand the needs of a child particularly in relation to the provision for that child’s needs.  I am satisfied on the material that I have read that the mother is otherwise providing for those emotional and intellectual needs. 

37. Section 60CC(3) requires me to take into account the attitude towards the child and the responsibilities of parenthood demonstrated by each parent. I am satisfied that the mother has been responsible but the father has not. I have already set out the circumstances under which the father could have developed some form of relationship, albeit strained, with the child and he has failed to do so.

38. This is also a case in which I am satisfied that notwithstanding the protestations of the father about not having been violent towards the mother, her evidence is strong and compelling notwithstanding it has not been tested.  I am satisfied that the father has been violent towards the mother and that he needs to understand the impact of that violence upon the possibilities of developing a relationship with his own son.

39. It is important in this case that I make orders that will end all of these proceedings to give certainty to the child.  That is not to say that the father cannot get his act together or his house in order so that he might have some meaningful relationship with his son in future.  For him to do so, he would need to satisfy the Court that he has undertaken considerable reform to his attitude not only to parenting and towards the mother but also to his responsibility as a member of the community.  It is a well-known fact that the criminal jurisdiction courts do not sentence people to terms of imprisonment except as a matter of last resort.  I have therefore concluded that the father has still some serious problems to overcome before he will become a responsible member of the community.

40. Sections 60CC(4) and (4A) require me to take into account how each party has participated in and facilitated the parenting responsibilities relating to the child.  I am satisfied that the mother has fulfilled those responsibilities but that the father has not and for the reasons that I have set out, it is in the best interests of the child that no orders are made at this stage for the father to have any part in the future life of the child until such time as he has proved that he something to offer this child.

41. For all the reasons that I have set out, I am satisfied that it is appropriate to make the orders that I propose as being in the best interests of the child.

42. Section 61DA(1) says that when I make a parenting order, I must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.  That is quite distinct from sharing of time. 

43. Section 61DA(2) says that the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or another child, who at the time was a member of the parents’ family (or that other person’s family) or family violence.  I have little hesitation in saying in this case that the father has perpetuated family violence upon the mother and in those circumstances the presumption should be rebutted.

44. Section 61DA(4) however goes on to say that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child.  This is a case in which the father has not participated in a meaningful way in the development of the child nor has he shown the sort of responsibility required of parents who have an interest in children.  In those circumstances, I could not be satisfied that it is in the best interests of the child that the parties have equal shared parental responsibility.  This is a case therefore where the burden of making decisions will fall entirely on the mother and in the circumstances that have prevailed, that is appropriate.

45. Accordingly, these are the reasons for the orders that I have made.

I certify that the preceding Forty Five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  17 June 2008