Harden and Ferrero

[2018] FCCA 2606

FEDERAL CIRCUIT COURT OF AUSTRALIA

HARDEN & FERRERO [2018] FCCA 2606

Catchwords:
FAMILY LAW – Parenting – final orders – undefended hearing – complete non-participation in proceedings by Father – one child aged 4 years – where Mother seeks sole parental responsibility and live with orders – where Mother seeks that the Father spend time with the child as agreed with such time to be supervised or as the Court directs – where the Father has engaged in acts of family violence – where the Father has issues relating to alcohol abuse and possible cannabis abuse – where the Father has completely disengaged from the child showing neglect for child’s needs – best interests of child.

Legislation:

Family Law Act 1975 (Cth), Pt.VII

Applicant: MS HARDEN

Respondent: MR FERRERO

File Number: NCC 1013 of 2018

Judgment of: Judge Betts

Hearing date: 19 July 2018

Date of Last Submission: 19 July 2018

Delivered at: Wauchope

Delivered on: 19 July 2018

REPRESENTATION

Counsel for the Applicant: N/A

Solicitors for the Applicant: Tony Cox Lawyers

Counsel for the Respondent: N/A

Solicitors for the Respondent: N/A

THE COURT ORDERS ON A FINAL BASIS THAT:

1. The matter proceed by way of undefended hearing.

2. All previous parenting Orders be discharged.

3. The Mother have sole parental responsibility for the child [X] born 2014 (“the child”).

4. The child live with the Mother.

5. The Respondent Father spend time with the child as agreed in writing with the Mother and on such conditions as the Mother requires which may include a requirement that such time be supervised. For the purpose of this Order ‘writing’ includes text message and email.

6. The Respondent Father communicate with the child as agreed in writing with the Mother. For the purpose of this Order ‘writing’ includes text message and email.

7. All extant applications are dismissed.

8. The proceedings are removed from the Active Pending Cases List.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WAUCHOPE

NCC 1013 of 2018

MS HARDEN

Applicant

And

MR FERRERO

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

BACKGROUND:

1. This is an application for parenting orders in relation to a child, [X], born on 2014 who is presently four (4) years and four (4) months old.

2. The application is brought pursuant to the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”).

3. [X] lives with the Applicant, his mother, Ms Harden. For convenience, I will refer to her in these reasons as “the Mother”.  The Respondent to the proceedings is [X]’s father, Mr Ferrero, who again, for convenience, I will refer to in these reasons as “the Father”. 

4. Like many proceedings that come before this Court, this case has an unfortunate flavour about it. 

5. The parties were in a relationship between 2013 and 2017, being a relationship in which the Mother complains that she was the victim of family violence and of the Father’s alcohol abuse.  I will refer to these matters a little later in the reasons.

UNDEFENDED HEARING:

1. These proceedings are being determined on an undefended basis today because the Father has not, at any time, participated in these proceedings. 

2. The Mother filed her Initiating Application on 3 April 2018.  Therein she sought sole parental responsibility for [X], that [X] live with her, and that the Father spend time with [X] as agreed, with such time to be supervised or as the Court directs.  In support of her Initiating Application, the Mother filed a Notice of Risk on the same date, and an Affidavit. 

3. The Mother’s Notice of Risk raised serious concerns about the Father’s apparent difficulty in controlling his temper.  This was a theme of her Notice of Risk. She also asserted that [X] had, on occasions, witnessed the Father’s verbal abuse. 

4. In relation to “other risks”, the Mother stated in her Notice of Risk that: 

   ‘The respondent father by way of nature has a bad temper and the child of the applicant mother has been subject to this over the course of the relationship.  Whilst I do not know as to his current situation, I am concerned that he continues to use illicit drugs.’

5. The Mother’s Initiating Application and supporting material were attempted to be served upon the Father by one Mr S, a licensed process server from Town A.  Mr S was unable to personally serve the Father with the material for the reasons set out in his Affidavit of Service, which was filed on the Mother’s behalf on 23 April 2018. 

6. Of some relevance to this case is the manner in which the process server came to serve the documents by post.  In his Affidavit, he deposes that when he had attended the Father’s home – a remote rural property - he found that there was no one at home.  He had left his contact details at the property and made inquiries with neighbours and established that a male by the name of “Mr H” owned and lived at that particular address.  He telephoned “Mr H, who advised that the Father was living there and that he worked as a (occupation omitted) in the local area.  He provided Mr S with a mobile number for the Father. 

7. That same day, Mr S telephoned the Father on the number provided in an effort to arrange a time to meet with him and effect service.  According to Mr S, their conversation went as follows:

   “Hi, Mr Ferrero.  I have some documents I have been instructed to deliver to you.  Can you let me know the best time and place to meet you?”

   Mr Ferrero became extremely angry.  He said:

   “I have no interest in accepting any documents.  I haven’t seen my child for over 12 months.” 

   He further said:

   “Fuck her! I’ll make this as hard as possible, so it costs her as much fucking money as possible.”

   Mr S asked:

   “Do you have a solicitor who could accept service on your behalf?”

   He said:

   “I don’t have any fucking money for those Cs...”

   He then told the process server to:

   “Fuck off”

   And:

   “Don’t come back to the property I’m never there”

8. Subsequently, Mr S delivered the documents to the Father’s address and placed them in the letterbox on 17 April 2018.  After having done so, he telephoned the Father’s mobile number once again, confirming with the Father that he had placed the documents in the correct mailbox. 

9. In many ways, the rude and aggressive manner in which the Father spoke to the process server, who was merely doing his job, corroborates the very complaint that the Mother makes about him in her material - that he had a “bad temper”.  Indeed, one would think that his behaviour on this occasion put the matter beyond much doubt. 

10. The Father has never filed any response material since being served. Pursuant to rule 4.03 of the Federal Circuit Court Rules 2001 (Cth) his material ought to have been filed some time around the end of April or early May.

11. When the proceedings came before this Court on 16 July, Mr Cox appeared for and with the Mother.  The Father was called but did not appear.  On that basis, the proceedings were adjourned to today to proceed on an undefended basis, and that is how I propose to proceed.  

SHORT HISTORY:

1. [X] has always been in the primary care of his Mother.  The Mother’s case is that she fell pregnant early in the relationship and that her relationship with the Father was a difficult one throughout.  She makes the general complaint that the Father, who already had older children to a previous relationship, did not particularly want to have another child and showed little interest in [X] when he was young. 

2. The Mother’s unchallenged evidence is that, while the parties were together, the Father provided no financial support for [X], such that the Mother had to rely on the Maternal Grandmother to provide them with support.  The Maternal Grandmother loaned the Mother money to buy clothes, baby formula, petrol for her car so she could get to work, and also assisted with daycare fees.

3. Moreover, during the relationship, the Father had little to do with [X] and was usually not happy when asked to look after him.  She gives evidence of an occasion when she went to feed the animals at their property and that when she returned, the Father in fact had no idea where [X] had gone.  She later found [X] outside.

4. A recurring theme of the Mother’s material is that the Father would be regularly drinking alcohol at the local pub, that he would return from the pub smelling of alcohol and would usually behave aggressively towards her on these occasions.  She complains in her material, and I accept, that over time the Father’s verbal aggression towards her increased.  The Mother deposes to a particular disagreement between the parents in which the Father was verbally aggressive and the Police ended up having to be called. The Father had followed the Mother and [X] around the house screaming at them and would not let them leave.  She deposes that after dialling ‘000’ the Father took her phone from her, and that by the time the Police arrived, he had successfully begged her to tell Police that it was all just a misunderstanding.  In the result, the Mother did tell the attending police not to worry about the matter. 

5. Unfortunately, the Father’s behaviour did not change. 

6. The Mother’s unchallenged evidence is that the Father tried to shoot the family dog and later displayed a completely callous response to the dog’s injury after the dog was left wounded and bleeding. 

7. Another recurring theme of the Mother’s material is that the father regularly consumed marijuana during the relationship. 

8. Things finally came to a head in May 2017 when the Mother left the Father for good, taking [X] with her.  She deposes that they were having a Mother’s Day dinner, at which point the Father became incredibly angry because [X] was running around.  He started yelling at [X] and, as a result, everyone else ended up looking at them. 

9. The next day, the Mother moved out to the Maternal Grandmother’s home for a couple of nights and took [X] with her. 

10. Shortly after she returned to their home, the Father again became angry at her, and this time she says the Father told her not to come back. 

11. From that point, the Mother was living at the Maternal Grandmother’s home with [X].

12. The Father clearly wanted to play some role in [X]’s life at that stage although the Mother’s Affidavit material makes clear that at least some of his motivation related to his desire to reconcile their relationship.  She gives evidence, which I accept, that he was trying to convince her to take him back, and that he on occasion said things to [X] which were an endeavour to involve him in the reconciliation process, such as saying to [X], “I love your mum.  Tell Mum to come home.” 

13. On 17 June 2017, the Father attended at the Maternal Grandmother’s home and he read out a letter that he had written, which is annexed to the Mother’s Affidavit.  It is a very lengthy handwritten letter which strikes me as a plea from the heart for reconciliation.  It makes reference to the Mother’s alleged behaviours during the relationship and to her alleged mental health issues, and it makes particular reference to a miscarriage that the mother had had during the relationship. 

14. Most significantly for present purposes, the Father admits to – or at least impliedly admits to - some of the aggressive and angry behaviour of which the Mother complains.  For instance, in relation to the Police event referred to earlier, he says:

    “And I can’t forgive myself for when she felt she had to ring the police,  I’m not sure what or how Ms Harden said or told you what happened that day to cause that to happen, but all I can say is that it never should have escalated into the situation it did, I’m sorry.  The police did come and asked her a lot of questions about me and whether she “felt” threatened, intimidated or physically or verbally abused, or anything else, and the answers were all no!”

15. The Father goes on in that letter to admit that he was causing various problems in the Mother’s life due to his own actions, and he admits that he did not help her enough in the care of [X].  In relation to the final breakdown of the relationship around the Mother’s Day dinner, he states in the letter that:

    “I will never forgive myself for doing that.  I can only say I’m sorry and I mean it”

16. The letter did not achieve the desired effect in that the Mother did not want to resume the relationship with him.  The Father continued to spend some time with [X] and to communicate with him, although he continued to act in a manner that was perhaps emotionally manipulative to [X] in terms of still involving him in the possible reconciliation he was seeking with the Mother. 

17. The Father ultimately stopped spending any time with [X] in October 2017 for reasons best known to him. 

18. The Mother attempted to continue some form of contact between the Father and [X], asking if he wanted to see [X] at Christmas 2017.  She sent him a text message, which is annexed to her Affidavit, in which she invited him to spend time on Christmas Day with the child, but warned him that if he acted like a child, he would be asked to leave.  She said:

    ‘The day will be about [X], not you and what you want.’

19. Her text is dated 15 December 2017.  The father did not respond, but on 18 January 2018, he sent this message:

    ‘Leave me alone.  Your son doesn’t have father a because you chose for him not to have one ok’

20. As indicated, the child [X] has remained in the Mother’s care, who in the meantime has undertaken a Building Connections program to help her build skills in interacting with the Father.  It is to her credit that she undertook such a program, but it is notable and regrettable that the Father has completely disengaged from his son.  He has not, as indicated, filed any response material in these proceedings, and his response to the process server is much the same as what he had earlier said to the Mother.  He is maintaining his angry and offended position at the expense of developing a relationship with his son, and this is a real tragedy.  However, this is a Court of law, and my role is to make orders that are in [X]’s best interests. 

THE LAW:

1. These proceedings are conducted pursuant to the provisions of Part VII of the Family Law Act.  In considering what orders to make, I am obliged to regard [X]’s best interests as the paramount consideration:  section 60CA. 

2. The objects and principles of Part VII of the Act are set out in section 60B.  I am also mindful of the best interests’ considerations in section 60CC. 

3. Section 61DA relating to parental responsibility is also relevant.  I am also mindful of section 65DAA, although that section falls away in this particular case as I do not propose to make an order for equal shared parental responsibility.

Primary Considerations

Section 60CC(2)(a)

1. Turning then to the section 60CC factors, I am certainly satisfied that [X] benefits from having a meaningful relationship with his Mother, who is his primary carer, and no doubt with his grandmother as well. 

2. In my view there may be a benefit to [X] having a meaningful relationship with his father, but that will depend upon his father showing some maturity, some engagement, and a willingness to actually involve himself in his son’s life.  I would add here that it is not possible for [X] to develop a meaningful relationship with his father if his father is determined not to play a role in his life due to his own hurt feelings at the breakdown of the relationship. 

Section 60CC(2)(b)

1. The other primary consideration is the need to protect [X] from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence. 

2. On the Mother’s case, the Father has engaged in abusive behaviour towards her, and I would find he has engaged in family violence.  He has also behaved in a manner that might be regarded as neglectful of [X]’s needs.  Perhaps more significant has been his behaviour following the breakdown of the relationship, in which he has shown, after reconciliation attempts were unsuccessful, that he is willing to sacrifice a relationship with his son because of his own hurt feelings, which reflects, in my view, very poorly upon the Father.

3. The Father clearly has issues relating to anger management, and it would seem issues relating to alcohol abuse and possible cannabis abuse. 

Additional Considerations

Section 60CC(3)(a)

1. In terms of the additional considerations, I have no direct evidence as to [X]’s views at this point in time.  He is only four years old, and any views he has would carry little weight, if any, in any event. 

Section 60CC(3)(b)

1. In terms of the nature of his relationships, [X] has a close and loving relationship with his Mother.  One would think that he still maintains a relationship of some form with his Father, but that relationship has probably diminished significantly.  No doubt [X] also has a relationship with the Maternal Grandmother and other family members to whom he is exposed in the Mother’s care.

Section 60CC(3)(c)

1. This section looms large, in that the Father has voluntarily chosen not to play a role in [X]’s life now for some nine months, and this is a significant matter for the Court today. 

Section 60CC(3)(d)

1. I am not proposing orders that would result in any change in [X]’s circumstances; indeed, the orders that I propose reflect a continuation of his living arrangement with his Mother, in which he is now well settled. 

Section 60CC(3)(e)

1. There are no issues of practical difficulty or expense in relation to the Father spending time with [X], but the reality is that the Father is not making any endeavour to do so.

2. The orders that I propose to make will provide for the Father to have the opportunity to spend time with [X], and I do not see practical expenses and difficulties arising in this case. 

Section 60CC(3)(f)

1. In terms of parenting capacity, the Mother has a proven parenting capacity.  The Father does not. 

Section 60CC(3)(i) and (j)

1. The Mother has shown an appropriate and, in my view, a very positive attitude towards [X]’s parenting and to the responsibilities of parenthood, notwithstanding that she has been a victim of the Father’s aggression, and, on occasion, his family violence. 

Section 60CC(3)(l)

1. In my view, the orders that I propose to make are least likely to lead to the institution of further proceedings as best I can discern. 

Parental Responsibility

1. In terms of parental responsibility, it would be unreasonable to expect the Mother to communicate with the Father in the circumstances of this case, given that he has deliberately chosen not to play any role in his son’s life and has not come to Court today seeking any orders.  Indeed, his stated response to the process server that he hopes the proceedings cost her as much money as possible reflects very poorly on his attitude towards communicating with the Mother. 

2. I find that the presumption that an order for equal shared parental responsibility would be in [X]’s best interests does not apply here, given the Father’s perpetration of family violence.[1]  In any event, even if the presumption did apply, I would not be minded to make such an order for equal shared parental responsibility as I would consider it contrary to [X]’s best interests given the Father’s attitude.[2] 

   [1] Family Law Act 1975 (Cth) s 61DA(2)

   [2] Family Law Act 1975 (Cth) s 61DA(4)

3. For the reasons given, I make the orders that are set out at the commencement of these reasons. 

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Betts

Date: 13 September 2018