NOEL & FAUCHER

[2012] FamCA 166

FAMILY COURT OF AUSTRALIA

NOEL & FAUCHER [2012] FamCA 166

FAMILY LAW - PRACTICE AND PROCEDURE – where the father did not appear at the hearing – where the father was warned of the risk of orders being made by default in his absence – where the Court was satisfied that the father was aware of the listing – where the Court proceeded on a default basis.

FAMILY LAW - CHILDREN – final orders – parental responsibility – whether the presumption of equal shared parental responsibility in s 61DA has been rebutted – where there is a history of serious domestic violence perpetrated by the father – best interests – orders that the mother have sole parental responsibility.

FAMILY LAW - CHILDREN – final orders – with whom a child lives – where the child has had little or no relationship with the father – best interests – orders that the child live with the mother.

Family Law Act 1975 (Cth) ss 60CA & 60CC

APPLICANT: Ms Noel

RESPONDENT: Mr Faucher

INDEPENDENT CHILDREN’S LAWYER: Denise M Rieniets & Assoc

FILE NUMBER: ADC 3508 of 2010

DATE DELIVERED: 15 March 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

EX TEMPORE JUDGMENT OF: Burr J

HEARING DATE: 15 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Ms Parker
SOLICITOR FOR THE APPLICANT:	Georgina Parker Lawyers

COUNSEL FOR THE RESPONDENT:	Not Applicable
SOLICITOR FOR THE RESPONDENT:	Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Lee
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Denise M Rieniets & Assoc

Orders

1. All current Orders made by this Court be discharged.

2. The mother have sole parental responsibility for the child H Faucher (“H”) born … April 2005.

3. H live with the mother.

4. The father be restrained and an injunction is hereby granted restraining the father from:-

   (a)    attending at the school that H attends or within the vicinity of the school;

   (b)    removing or attempting to remove H from the care of the mother;

   (c)    assaulting, molesting, harassing, abusing or contacting the mother or members of her family.

5. The mother be at liberty to change H’s permanent place of residence from Town 2 and to enroll H in an alternative school to the Town 2 Primary School.

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

7. All proceedings before the Court be otherwise dismissed and removed from the pending list.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Noel & Faucher has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3508 of 2010

Ms Noel

Applicant

And

Mr Faucher

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. I have before me today the mother’s Initiating Application filed on 16 June 2011.  For today’s purposes I deal with the final orders sought by her and they are to the effect that previous orders be dismissed and that the mother have sole responsibility for the child H Faucher (“H”) who was born in April 2005 and who is hence almost seven years of age.  The mother also seeks an order that H live with her.  There are injunctions she seeks as well. 

2. On 9 March 2012 when there was no appearance by the father at the adjourned hearing of the proceedings, I made an order which was to the effect of requiring the father to attend on today’s date in the event that he wished to further dispute the proceedings before this Court.  There is no appearance by him today.

3. I am satisfied that he is aware of the listing of the matter today and of the potential consequences of his non attendance.  I am further satisfied that he was advised both by the mother’s solicitor and by the Independent Children’s Lawyer that the proceedings were again before the Court today and that if he did not attend, then orders in terms of the mother’s application were likely to be made by default.  I am so satisfied of his knowledge to that effect by the affidavit filed by the mother’s solicitor dated 15 March 2012 and the affidavit handed to me today sworn by the Independent Children’s Lawyer.  I thus intend to proceed on a default basis. 

4. The father has been an active participant in these proceedings until relatively recently.  He certainly attended the proceedings before the Court on 16 December 2011 and it was at that time that the adjournment to 9 March 2012 was ordered.  Thus he was certainly aware of that adjourned date for the proceedings as well.  There was a notation in the orders made on 9 March 2012 to the effect that the father had though not yet complied with various orders made by the Court on 28 September 2011.  So whilst he was an active participant in some respects, he had not complied with a number of previous orders made by the Court. 

5. The mother and the father commenced a relationship in 2001 but did not commence living together until February 2005.  In the interim though, the mother had secured a domestic violence restraining order against the father which was to operate for a period of 12 months.  That order was secured in a Magistrates’ Court.  Clearly a reason the parties must have had as to their decision to live together was because the child H was born shortly after the time they commenced living together, her birthday being in April 2005.

6. However the relationship did not last long as they separated only some three months later in July of 2005 and the mother again secured a domestic violence restraining order against the father from the Magistrates’ Court, that order having been secured on 18 August 2005.  Proceedings were then taken between them in this Court and they were able to reach agreement and consent orders were made on a final basis on 5 June 2006.  Those orders were to the effect that H was to live with the mother and spend time with the father. 

7. Further proceedings were engaged between the parties in July 2010 and in September 2010 an Independent Children’s Lawyer was appointed.  That ultimately resulted in further final orders being made by consent between the parties on 21 March 2011.

8. Shortly after the making of those consent orders the father was charged with an assault upon the mother which occurred in the presence of the child H, those charges being laid on 5 June 2011.  This prompted the mother to file the Initiating Application with which I now deal. 

9. On 30 June 2011 this Court ordered the suspension of the father’s time to be spent with H.  In August 2011, the father was convicted of aggravated assault upon the mother and placed on a good behaviour bond for a period of 18 months.  That prompted the re-appointment of the Independent Children’s Lawyer on 1 September 2011 and on 28 September 2011, I made orders further suspending the father’s time with H.  A further domestic violence restraining order was secured by the mother against the father in the Magistrates’ Court on 17 October 2011.

10. The matter further came before this Court on 16 December 2011 when I continued the orders suspending the father’s time with H.  That order was again repeated on 9 March 2012 when there was no appearance by the father.  Thus in an almost seven year period now since the parties last cohabited, there have been a number of proceedings taken between them both in this Court and in relation to the violence perpetrated by the father against the mother. 

11. All of those occasions of violence by the father are clearly disturbing events, but made more so by the fact that on 24 June 2011 the assault upon the mother was in the presence of H.  What made the matter worse was that that assault occurred in circumstances which were supposed to be safe for both the mother and H, namely during a contact handover outside the father’s home.

12. When making any orders in a parenting dispute, I must have regard to the provisions of Part VII of the Family Law Act 1975 as amended. Section 60CA of the Act requires me to consider H’s best interests as the paramount consideration when making any order. In undertaking that exercise, I am guided to Section 60CC of the Act which is divided into two primary considerations and a number of additional considerations. The two primary considerations are, firstly:-

    (a)the benefit to the child of having a meaningful relationship with both of the child’s parents;

    and secondly,

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

13. It is without question that the first of the primary considerations is overridden by the second, namely, the need to protect H in the face of a long history of violence and abusive behaviour by the father.  This is the matter which must direct the Court’s determination.

14. In then dealing with the additional considerations, the first of them requires 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 views;

15. Whilst there is no direct evidence of H’s views, she has been in the mother’s primary care for a lengthy period of time and further was witness to the assault upon the mother inflicted by the father in June 2011.  There can be no question in my mind that if H was asked to express a view it would be clearly to the effect that she wanted to live with her mother and I am satisfied that she would also have significant reluctance in pursuing any relationship with her father.  Indicative of this is the victim impact statement which is annexed to the affidavit of the mother’s solicitor filed on 15 March 2012.  It is a victim impact statement for a child or a young person and is of a drawing made by H.  It is sad to see that it says “dad punched mum”.

16. Paragraph (b) requires me to consider:-

    (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);

17. All of the evidence points to a very close, loving and nurturing relationship between the mother and H.  Nothing of that kind can be demonstrated in the relationship between the father and H.  He has had multiple opportunities since 2005 to form a close and loving relationship with his daughter, but then on each occasion that he has been given that opportunity with the mother’s consent and endorsed by Orders of this Court, he has failed to do so.  It is clearly demonstrated by his inability to respond in an appropriate manner towards the mother and his series of violent actions taken against her are quite appalling.

18. Paragraph (c) requires me to consider:-

    (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;

19. In my view, the mother could not have done more than she has.  Over that long history since the separation in 2005, there have been a number of occasions on which she has consented to the father spending time with H and affording to him the opportunity to form a close and continuing relationship with H.  In the vernacular, he has “blown” those chances on each occasion. 

20. In my view, subparagraph (d) is of no relevance in the determination of these proceedings nor is subparagraph (e).  Subparagraph (f) requires me to consider:-

    (f)the capacity of:

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

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

    to provide for the needs of the child, including emotional and intellectual needs;

21. The father has again failed critically in all relevant areas.  The harm that he has done to H emotionally by reason of his violent actions cannot be underestimated.  Yet throughout this time the mother has continued to attend to all of H’s needs, physical, emotional, intellectual and the like.  This too has been in the face of constant threats and violence by the father.  It would have required a very brave and resilient individual to continue to focus their attentions on H’s needs during those very difficult times.  It is a credit to her that she has been able to do so. 

22. Subparagraphs (g), (h), (l) and (m) are of no relevance, but paragraph (i) requires me to consider:-

    (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

23. In my view, I have covered this adequately in the reasons I have already iterated but to repeat, the father’s demonstrated attitude to H and to the mother has been quite appalling and is an abrogation, in my view, of all of his responsibilities as a parent.  The mother’s contribution is quite to the contrary. She has continued to act in a child-focused manner throughout these difficult times. 

24. Paragraphs (j) and (k) require me to consider:-

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

    (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;

25. I have already made mention of those matters in the reasons already given by me, but to further emphasise the seriousness of the father’s actions and the consequences that it has had for the mother and her family including H, it becomes starkly evident in the victim impact statements annexed to the aforesaid affidavit of the mother’s solicitor filed on15 March 2012.  There are two.  The first is by the mother and the second by her son, E, who is now 16 years of age having been born in July 1995.  Each of them describes the impact upon them of the father’s violence, specifically levelled towards the mother in the presence of H in June 2011.  The consequences for the mother have been quite severe.  She has clearly suffered significant harm to her emotional and psychological well being and is presently being administered medication for anxiety and depression by her general medical practitioner.  It has impacted upon her general sense of wellbeing, her family life, her relationships and her studies. 

26. A truly appalling component of the violence on that day was that it was directed at the mother during a period of handover between the father and the mother in respect of H.  That he should use an occasion of handover which was designed for him to spend enjoyable quality time with his daughter to inflict further violence upon the mother and consequently emotional harm upon H is a matter of great shame upon him.  An additional tragedy for the mother was that the father’s assault upon her was on the third anniversary of the death of her daughter C in a motor vehicle accident. 

27. I have indicated earlier the detrimental effect and impact it clearly had upon H in her young victim impact statement in the nature of the drawing, but E’s words in his victim impact statement also bring into stark effect the consequences of the father’s actions on that day and at other times.  It has clearly impacted upon him and has affected his family and social life. 

28. I then need to move to section 60CC(4) of the Act which in summary requires me to consider in what way each of H’s parents have fulfilled or failed to fulfil their responsibilities as a parent by taking or failing to take the opportunity to spend time with H.

29. Again, there is no question that there has been an absolute failure on the father’s part in that regard despite the frequent opportunities that the mother has presented to the father to participate fully in his daughter’s life. 

30. In my view, a review of the other relevant sections of Part VII provide no additional insight as to what might be the appropriate determination by this Court. 

31. In all the circumstances I am satisfied that it is appropriate to make the final orders sought by the mother.

I certify that the preceding thirty one (31) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr delivered on 15 March 2012.

Associate: 

Date: