Pearce and Gough (No. 2)

[2008] FamCA 995

FAMILY COURT OF AUSTRALIA

PEARCE & GOUGH (NO. 2) [2008] FamCA 995

FAMILY LAW – CHILDREN – with whom a child should live – father’s application previously dismissed – no appearance by father at the hearing – father’s reply dismissed – spending time with the father is likely to cause the child psychological harm -  mother to have sole parental responsibility for the child

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA

APPLICANT: Mr Pearce

RESPONDENT: Ms Gough

FILE NUMBER: ADF 1477 of 2005

DATE DELIVERED: 21 August 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 21 August 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr J.F. Hicks

SOLICITOR FOR THE RESPONDENT: Alderman Redman Lawyers

Orders

1. That the father’s Reply filed on 9 July 2008 be dismissed and removed from the active pending cases list.

2. That all previous parenting orders be dismissed.

3. That the mother have sole parental responsibility for the child … born … January 2002.

4. That the said child live with the mother.

5. That the father spend no time with the child.

6. That the father be restrained and an injunction be granted restraining him from approaching, contacting or communicating with, assaulting, harassing, threatening or intimidating, directly or indirectly, whether in person, by telephone, in writing or otherwise, the mother and the said child.

7. That on or before 22 October 2009 the mother notify the father in writing, two months in advance, by letter to the father’s address for service any intention to permanently change the said child’s place of residence to a location further than 120 kilometres from the Adelaide GPO.

8. That until 22 October 2009 the mother maintain a post office box address for service upon her of Family Law proceedings instituted by the father being post office box ….

9. That pursuant to Section 62B and Section 65DA(2) 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 are set out in the attached Fact Sheet.

10. That all applications and responses be dismissed and removed from the active pending cases list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1477 of 2005

MR PEARCE

Applicant

And

MS GOUGH

Respondent

EX TEMPORE REASONS

INTRODUCTION

1. This matter was listed for trial today on the mother's Further Amended Response filed on 20 June 2008.  That response not only responded to the application of the father but also responded to an application by the paternal grandparents of the child the subject of these proceedings.  However that latter aspect of this case has been dealt with separately. 

2. In terms of this part of the case - namely, the proceedings as between the father and the mother - the orders sought in that amended response that are relevant to the hearing listed before me today are paragraphs 1, 2, 4, 5, 6 and 7, and they are as follows:

   “1. That the mother have sole parental responsibility for the child […] born […] January 2002 also known as […] (hereinafter called “the said child”)

   2.    That the said child live with the mother.

   …

   4.That the father spend no time with the child.

   5.That the father be restrained and an injunction granted restraining him from approaching, contacting or communicating with, assaulting, harassing, threatening or intimidating, directly or indirectly, whether in person, by telephone, in writing or otherwise, the mother and the said child.

   6.That on or before 22 October 2009 the mother notify the father in writing, two (2) months in advance, by letter to the father’s solicitors of any intention to permanently change the said child’s place of residence to a location further from the Adelaide GPO than 120 kilometres.

   7.That until 22 October 2009, the mother maintain a Post Office Box address for service upon her of Family Law proceedings instituted by the father.

   …”

3. On 22 April 2008 I made an order that the amended application filed by the father on 3 August 2007 be dismissed and removed from the active pending cases list.  I will come to the reasons for judgment that I delivered at that time in relation to that order, but the effect of that was that the father no longer had any application before the Court seeking orders in relation to the child the subject of these proceedings.  That left only the mother's further amended response to which I have already referred.

4. The father filed a Reply on 9 July 2008 in which he sought a number of orders, including that the child live with the mother, that the father communicate with the child in writing and that the father communicate by telephone with the child.  The father was able to file that reply but, as was canvassed, certainly on 22 April 2008 and maybe even subsequently, given that I had dismissed the father's amended application, all his reply was able to deal with were the orders sought by the mother in her amended response.

5. In the father's reply he did that, in that he sought an order, for example, that the child live with the mother, which was an order sought by the mother as well.  However, the father went on and sought orders which went beyond simply replying to the mother's further amended response.  That, obviously, was an issue that needed to be sorted out at the hearing, which was listed to commence today.  However, the father has not attended.  He was represented previously, but his solicitors filed a Notice of Ceasing to Act on 16 July 2008.  Those solicitors have represented the father for some time and, importantly, as far back as December 2007 when this matter first came before me for hearing as a trial.

6. The father has not filed any documents subsequent to the reply that I have just referred to.  As I say, he has not attended today.  In the Notice of Ceasing to Act the father's solicitors set out that they had advised the father that the next time this case was listed was today, namely, 21 August 2008. However, nothing has been heard of him by the Court.  The mother gave some brief oral evidence before me today and she said she has no knowledge of the father's current circumstances, she had not heard from him, she had not heard of him.  She assumed that he was still living in Canberra but that was purely an assumption on her part.

7. I am satisfied that the father was aware of the listing today. Indeed not only would he have been aware of that from the notice of ceasing to act, but this listing was provided at a time when the father was represented, and his solicitors and indeed his counsel who appeared were well aware of this date.

8. In these circumstances, given that the father is not here to pursue his reply, I propose to make an order dismissing that reply and removing it from the active pending list.  That still leaves, of course, the mother's further amended response and I have embarked on a hearing of that response on the basis of that being an undefended response.

FACTUAL BACKGROUND

1. The subsequent history of this matter is well documented firstly in my reasons for judgment delivered ex tempore on 5 December 2007.  I do not propose to reiterate what I said in those reasons for judgment, I will come to a summary of it in a moment.  For the purposes of this exercise, I refer generally to those reasons which in effect deal with the relevant events from March 2007 to December 2007.

2. The second document I want to refer to on this topic is my reasons for judgment delivered on 22 April 2008.  As with the earlier reasons for judgment, I do not propose to read any of that out now but I refer to those reasons generally as providing relevant background material from December 2007 through to April 2008.

3. In terms of the relevant background subsequent to 22 April 2008, I have already dealt with that in my introduction.  By that I mean I have referred already to the further amended response filed by the mother, the reply filed by the father, and the Notice of Ceasing to Act filed by the father's solicitors.

THE CURRENT CIRCUMSTANCES OF THE PARTIES

1. Because the father has not prosecuted his reply and he has not filed any affidavit in support of that reply, I do not have any evidence before me as to the father's current circumstances.  However his circumstances insofar as they are relevant, up to, certainly, April 2008, are well documented in my reasons for judgment of December 2007 and of 22 April 2008.

2. In terms of the current circumstances of the mother and the child, the mother gave oral evidence before me today on that topic and she tells me that the child who is now six years of age attends school where she is in a reception/year 1 class.  She is doing well at school, she makes friends easily, and she has a group of friends at school.  The mother describes the child as happy, intelligent, wise.  She is shy but she is also a leader rather than a follower.  Importantly, the mother's evidence is that the child has no current health issues.  She wears prescription glasses but that is not of any significant concern.

3. The mother and the child live in rented accommodation comprising two bedrooms and the usual conveniences.  That home is approximately five minutes away from the school that the child attends.  The mother has her own motor vehicle, and she takes the child to school and collects her at the end of the day.

4. The mother told me the activities that the child engages in, namely, she is about to commence guitar lessons and she undertakes drama classes at the moment.  The mother also told me of the activities that she undertakes jointly with the child, such as playing games and visiting parks and beaches and the like.

5. The mother is not working.  She is currently studying part-time at a local TAFE, where she is undertaking a course in information technology.  She will finish that course at the end of this year.  She undertook that course with a view to obtaining employment in due course and that is still her plan. 

6. The mother and the child have lived in their current accommodation since March this year.  The mother tells me that she is happy where she is, and she has no current intention of moving.  She has a six-month lease but she is confident that she can renegotiate the continuation of that lease.

7. The mother looks after the child on a full-time basis; she is able to tailor her studies around the child's attendance at school.  However, there are times when the mother has appointments and the like, and she has child care available to her at those times.  That occurs rarely and on average once a month.

8. The mother has family in South Australia but they are not family that she has any particular involvement with.  Her mother resides in New South Wales, and they have regular contact.  In terms of support for the mother in South Australia, she relies on a close network of friends.

9. In terms of her financial position, the mother receives a government benefit and manages on that.  She has never received any financial support from the father.  She has not re-partnered, this child is her only child, and there is no other person who resides in the household.

THE ISSUES IN DISPUTE

1. The issues are quite straightforward given that the only application before me is the mother's further amended   response.  Perhaps I should say that the mother's counsel has provided me with a summary of argument today which sets out the orders that the mother now seeks.  There is a slight variation to the orders in her further amended response but, in summary, it is:   that all previous orders be dismissed; that the mother have sole parental responsibility for the child; that the child live with the mother; that the father spend no time with the child; that there be an injunction granted restraining the father from approaching, contacting or communicating with the mother and the said child. 

2. The mother also seeks an order that on or before October 2009 she notify the father in writing, by letter, of any intention to permanently change the child's place of residence to a location further from the Adelaide GPO than 120 kilometres.  The mother also seeks an order that until that same date, 22 October 2009, she maintain a post office box address for service, being Post Office Box ….

3. It would appear that there is no issue and can be no issue that the child should remain living with the mother.  In reality, the only issue is whether there should be an order that the father spend no time with the child, and that an injunction be granted restraining him from approaching, contacting or communicating with, assaulting, harassing, threatening or intimidating, directly or indirectly, whether in person, by telephone, in writing or otherwise, the mother and the said child.

THE EVIDENCE

1. The evidence comprises the mother's Affidavit filed on 2 October 2007 and her Affidavit filed on 10 April 2008, but limited to paragraphs 10 to 15 inclusive.  The mother also relies on an Affidavit filed by the father on 21 October 2004, but specifically paragraph 10 of that affidavit where he deposes to entering a guilty plea to various charges involving the mother and the child which are highly relevant to this matter and which are set out in the factual background above.

2. The father was sentenced to 12 months imprisonment, to be served by way of 26 periods of periodic detention.  What is significant about that is that between January 2003 and June 2003- namely, between the date of the assaults and the conviction - the mother had taken the child to visit the father in prison on two or three occasions.  The mother's evidence is that that was the last time the father had any contact, so-called, with the child.  Since then the child has been solely in the care of the mother without any time spent with the father, either face‑to‑face or by telephone communication or otherwise. 

3. I said earlier that I would come back to my reasons for judgment delivered in December 2007 and then April 2008.  I do not consider there is any need to dwell on those two judgments for very long, save and except again to refer to them generally as setting out, firstly, the reasons for adjourning the trial in December 2007 and then, secondly, the reasons delivered on 22 April 2008 for dismissing the father's amended application and then providing for the matter to proceed on the mother's amended response. 

THE BEST INTERESTS OF THE CHILD

1. I do not propose to refer to each and every one of the relevant factors arising from a consideration of section 60CC of the Family Law Act, save and except to say the following. In general terms, I accept the mother's submission that there will be no benefit to the child in having a meaningful relationship with the father and that spending time with the father is likely to cause the child psychological harm.

2. The basis for that includes, for example, the father's emotional reactivity, the contents of the father's web site and his motivation regarding it - that one day the child would be able to read that material - the father's failure to take responsibility for his violent behaviour, the father's ongoing marijuana use, and his failure to undertake counselling and/or therapy as was previously ordered.

3. In terms of additional considerations, I refer to such matters as the child having expressed apprehension about seeing her father in her interviews with the family report writers, those reports having been prepared some time ago but still highly relevant in terms of deciding this matter. 

4. There is then the relationship the child has with each of her parents. The child has a close relationship with her mother but given the lack of contact between the child and the father it is safe to say the child has no relationship with the father at the moment.

5. In relation to the capacity of each of the child's parents to provide for the needs of the child, there is no issue about the mother's capacity to so provide, but there is a significant question mark as to the father's capacity.  Certainly it is untested because he has not had the child in his care to be able to demonstrate any capacity, but, given his circumstances, his history, the evidence surrounding his behaviour and conduct, what has been described as his emotional reactivity, his lack of counselling, his ongoing drug use, his failure to take responsibility for past violence, I have little hesitation in finding that, on the current evidence, he has no capacity whatsoever to provide for the needs of this child.

6. Of course, I need to reiterate that the history of this matter entails violent behaviour on the part of the father and, significantly, in relation to the child herself.  I have referred already to the incident that occurred on 3 January 2003 and which led to the father pleading guilty to various charges, including charges involving the child.  Thus there are serious concerns about the safety of this child if the child was to spend any time with the father and, on the evidence, I have no confidence of the father's ability to protect the child from any harm.

7. That was the position as at December 2007, but the father has not done anything to assuage those concerns by his behaviour subsequent to December 2007.  He was incarcerated for I think a period of at least three months as a result of inappropriate behaviour and conduct outside the Family Court in Canberra in December 2007.

8. It is also significant in my view that the father has chosen not to attend today and thereby not pursue his reply.  In the context of the case I can only assume that the father does not have an interest in pursuing orders in relation to his child.

9. On the evidence that is before me, I have no hesitation in finding that the orders sought by the mother are in the best interests of the child at the present time and obviously into the immediate and foreseeable future. 

10. It is a sad circumstance for a child not to know her own father and it may be that if the father is able to take responsibility for his actions, and sort out his life there will come a time when it is in the best interests of the child to establish a relationship with him. However at the present time all of the evidence points to it not being in the best interests of this child to have any time with, or to have anything to do with her father and he has no-one else to blame but himself for that state of affairs.

11. I need also to address the issue of parental responsibility. The mother seeks an order for sole parental responsibility, but section 61DA(1) of the Family Law Act provides as follows:

    When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

    However, in my view the presumption does not apply because of section 61DA(2), namely, there is evidence of family violence in this case, perpetrated by the father.

12. It seems that I am still obliged to go on and consider whether in any event it is in the best interests of the child here for there to be equal shared parental responsibility.  In that regard there is simply no evidence that points to it being in the child's best interests to have equal shared parental responsibility. 

13. The mother has been the one who has taken on the responsibility of caring for and raising this child.  The father has gone off on a frolic of his own, behaved and conducted himself totally inappropriately, and in my view, to repeat, there is no basis for making an order that there be equal shared parental responsibility. 

14. I should mention, finally, the injunction sought for the protection of the mother and the child.  Again there is ample evidence before me of the inappropriate behaviour and conduct of the father to justify such an injunction being granted and I propose to do so.

I certify that the preceding 40 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 21 August 2008.

Associate