Perks and Doney

[2014] FCCA 2404

FEDERAL CIRCUIT COURT OF AUSTRALIA

PERKS & DONEY [2014] FCCA 2404

Catchwords:
FAMILY LAW – Parenting orders – consideration of whether a child should visit a parent in jail.

Legislation:

Family Law Act 1975, ss.60B, 60CC(2)(2A)(3)

Crimes (Administration of Sentence) Act 1999, s.77

Applicant: MS PERKS

Respondent: MR DONEY

File Number: PAC 5288 of 2012

Judgment of: Judge Dunkley

Hearing dates: 13 and 16 October 2014

Date of Last Submission: 16 October 2014

Delivered at: Parramatta

Delivered on: 25 November 2014

REPRESENTATION

Solicitors for the Applicant: Ms Beach of Mahony Family Lawyers

The Respondent appeared in person.

ORDERS

1. The Orders sought by the father in his Response filed 3 May 2013 is dismissed.

2. Confirm Orders 1 and 2 made on 17 April 2013.

3. Remove all outstanding Applications and Responses from the list of cases awaiting finalisation.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5288 of 2012

MS PERKS

Applicant

And

MR DONEY

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 23 November 2012 Ms Perks (hereinafter the mother) commenced parenting proceedings with respect to a child X born on (omitted) 2008. X is six (6) years old.

2. At the time the mother filed her Initiating Application, Mr Doney (hereinafter the father) was in prison.

3. In November 2009 the father committed serious criminal offences. He has since been sentenced in the District Court of New South Wales with respect to those offences. He has been in custody since 14 January 2010. His earliest parole date is 13 October 2018. His head sentence expires on 13 October 2021.

4. The parties separated in November 2009.

5. The father has not spent ‘face to face’ time with X since being taken into custody. X was then aged 20 months.

6. Consequently X has no existing relationship with her father. She likely has little to no memory of him, although she knows of him. Her mother has placed his photo in her bedroom.

7. On 17 April 2013 it was ordered by consent and on a final basis:

   1. That the mother have sole parental responsibility for the child X (“the child”) born (omitted) 2008.

   2. The child shall live with the mother.

Issues

1. This case is then about what time (if any) and what communication (if any) X should have with her father.

Orders Sought

Father

1. That the child, X born (omitted) 2008, spend time with the Respondent father as follows:

   a)Timed prisoner’s telephone calls twice a week.

   b)Timed prisoner’s telephone calls for Christmas, Easter Sunday and X’s birthday.

   c)That the father be permitted to receive recent photographs of X.

   d)That the father be permitted on-site prison visits once fortnightly. The paternal grandparents to transport X to and from (omitted) Correctional Centre.

   e)The father be permitted to receive copies of school reports.

   f)That the father spend time with X when he is released from prison.

Mother

1. That the father shall not spend any time with X.

2. That the father shall not communicate with or contact, nor attempt to communicate with or contact X.

Documents

Mother

·Initiating Application filed 23 November 2012; and

·Affidavit of Ms Perks sworn 2 September 2014.

Father

·Response filed 3 May 2013;

·Affidavit of Mr Doney sworn 16 September 2013;

·Affidavit of Ms M sworn 8 August 2014; and

·Affidavit of Mr K sworn 8 August 2014.

Exhibits

·Exhibit A – A tender bundle of documents

·Exhibit B – photocopy of envelope and letter from Mr Doney to X dated 9 November 2013

·Exhibit C – Article in Australian Family Lawyer by the Honourable John Fogarty AM

·Exhibit D – Copy of western line train and bus timetable

Conduct of Proceedings

1. The father appeared by Audio Visual Link (AVL) on day one of the hearing from (omitted) Correctional Centre where he is currently an inmate.

2. The solicitor for the mother had sent the father a tender bundle of documents. He acknowledged having received it and read it. He did not oppose the tender. It became Exhibit ‘A’.

3. The AVL became disrupted towards the end of the first day of hearing and the proceedings were adjourned part heard to 10am on Thursday 16 October 2014.

4. The father was brought to Court on 16 October 2014 by Corrective Services on a warrant pursuant to section 77 of the Crimes (Administration of Sentence) Act 1999 to avoid further delay in the hearing.

5. The father’s parents although they filed Affidavits were not made available for cross examination. In the end, for reasons explained later in this Judgment nothing turns on that fact.

Chronology

(omitted) 1974

Father born

(omitted) 1976

Mother born

(omitted) 2007

Parties commence a relationship, they never live together

(omitted) 2008

X born

2009

Father self-harms

November 2009

Fathers uses a motor vehicle to injure other persons

Parties separate

14 January 2010

Father admitted to (omitted) Hospital.

Father arrested and enters into custody.

12 April 2011

Father sentenced in Gosford District Court with respect to a number of offences including those of November 2009

28 January 2014

Father sentenced in Mount Druitt Local Court

Evidence

1. The father has a long history of alcohol and illicit drug misuse. He started drinking alcohol aged 6, drinking heavily in his teens. He commenced cannabis use from age 12, speed use from age 16 and ‘Ice’ use in 2009[1]. He says he has not used drugs in prison although his mother tried to smuggle drugs into prison for him.

   [1] See pages 39 and 49 of Exhibit ‘A’

2. The father has a long criminal history[2] starting from 1991 when he was a juvenile. In July 1992 he was sentenced to his first custodial sentence as an adult.

   [2] See pages 217 – 235 of Exhibit ‘A’

3. In 1994 he received a further custodial sentence.

4. In 1996 he was again sentenced to a period of imprisonment. He also received a custodial sentence in 1997.

5. In 2000 he received a further custodial sentence, as he did again in 2004.

6. In 2006 he was sentenced in the Penrith District Court to a sentence of two years and six months with a non-parole period of fifteen months on a charge of aggravated sexual assault on a victim under the age of sixteen years. He was at that time aged 32 years.

7. On 12 April 2011 he was sentenced in the Gosford District Court for the offences for which he is currently in prison. Those offences include:

   a)Make a false statement to obtain money;

   b)Cause grievous bodily harm with intent (four charges);

   c)Assault occasioning actual bodily harm.

8. The facts on which he was sentenced on 12 April 2011 are set out in Exhibit ‘A’ at pages 175 to 183.

9. It is apparent from those facts that his mother Ms M knew of the offences for at least a month prior to his arrest.

10. The facts indicated the father went to great lengths to cover up the offences including self-admitting to the (omitted) Hospital on 13 January 2014 claiming mental illness.

11. On 28 January 2014 the father was convicted in the Mount Druitt Local Court of using a postal service to menace/harass and contravene an Apprehended Violence Order. The sentence is being served concurrent with his current sentence. It therefore has no deterrence impact for the father.

12. The Local Court imposed sentence has no deterrence impact because the father was at this time in jail. His prison records indicate Corrective Services have concerns he has on more than one occasion threatened either the mother or a previous partner with whom he has children by letters sent from jail.

13. The father says he is unlikely to again use drugs on his release. The attempt his mother made to smuggle drugs into prison for him tends to undercut this assertion.

14. The father says the mother has sought to exclude the paternal family, some of whom are near neighbours of the mother, from X’s life.

15. The father says he has no memory of the threatening letters, which are Annexure ‘B’ to the mother’s Affidavit because of the medication he was taking.

16. The father has a diagnosis of mental illness. His mental illness is being treated in prison. He still has hallucinations and hears voices occasionally saying he should harm people.

17. The father has recently been reclassified as a minimum security inmate and is now in (omitted) Correctional Centre which has facilities for children’s visits which are available on a Saturday or a Sunday between 9am and 3pm. Such visits have to be organised ahead of time through the Correctional Centre between Tuesday and Thursday.

18. An organisation known as “Shine for Kids”[3] is able to provide support to children who visit jails, including the jail at (omitted).

    [3] See Annexure “D-2” to the father’s Affidavit sworn 16 September 2013

Determination

1. In Volume 20 No.2 Australian Family Lawyer the Honourable John Fogarty AM provides a helpful analyses of the case law pre and post 2006 and an extremely helpful framework around which the evidence in a case about children visiting parents in jail can be considered.

2. That article[4] is not binding on me. It is a helpful aide. The decision I make must be undertaken pursuant to the Family Law Act 1975.

   [4] Exhibit ‘C’

3. Because this is a parenting case that falls to the determined pursuant to the Family Law Act 1975 the best interest of X is the paramount consideration in any orders made. Orders must also be reasonably practicable.

4. When considering what parenting orders are in X’s interest the Court is informed by the objects in s.60B. In deciding what is in X’s best interest the Court must consider the factors in s.60CC(2)(2A) and (3) in light of the evidence.

5. Informed by the s.60B objects, theoretically children are considered to obtain a benefit from a meaningful relationship with both parents, which is safe for them.

6. In this case for reasons discussed no benefit arises for X in having a relationship with her father other than knowing or hearing of her paternal identity. Currently it would not be safe for her to have a relationship with her father, because she would likely experience psychological harm.

7. The need to protect X is to be given greater weight that her right to have a meaningful relationship with her father.

8. X has expressed no views. Given her age, six years, little weight would have been attached to those views even if they existed. She has no views probably because she does not really know who her father is.

9. The mother exercises sole parental responsibility by consent order. This is a reflection of the circumstances that have existed since January 2010 and is in X’s best interest.

10. The father since January 2010 has had some telephone communication with X, such communication was stopped by the mother because X at the time was too young to sustain and manage such communication. She would talk briefly, put the phone down, walk away and become disengaged.

11. More recently the father has written to her. The content of that communication has been unhelpful and undermining of X’s relationship with her mother, and not entirely child focused. I conclude it was likely to expose X to psychological harm.

12. The father because he is in jail likely has no income and is unlikely to provide financial support for X. Although both parties’ evidence is silent as to this factor.

13. X has always lived with and been cared for by her mother. For this reason I am comfortably satisfied X’s most important relationship is with her mother. There is no evidence other than that the mother loves X and provides appropriate care for her and focusses on and meets all X’s needs, and in return X loves her and is dependent on her.

14. The mother sought to downplay the father’s involvement with X in the 20 months post her birth until his imprisonment. His involvement was limited as they never lived together as a family unit, and his involvement was limited to short periods when he was visiting the mother or she was visiting him.

15. X now attends school and there is no evidence that suggests she has any trouble separating from the mother or being absent from her care for the duration of the school day.

16. Both X’s paternal grandparents say they have spent no time with X since the father was placed into custody. For this reason I am satisfied X has no real relationship with either. X on the evidence of the mother does not recognise them even though they live across the street from the mother and X’s home. The mother says X has asked “who is that man waving at me” referring to the grandfather.

17. If the grandparents were to transport X to (omitted) to visit the father by car the travel would be about a four hour round trip.

18. If the mother undertook the transport the time would be the same but she would be incurring the expense.

19. Public transport by rail from (omitted), the main rail station nearest to the mother’s home is available, but there is no evidence as to the cost of that trip. The travel time is about two hours each way[5].

    [5] See Exhibit ‘D’

20. In addition taxi or bus transport would be necessary from (omitted) rail station to (omitted) Jail. The cost and frequency of such transport is not recorded in the evidence of the parties.

21. The mother is the only person with a demonstrated capacity to provide for X’s needs.

22. How X would emotionally respond to four hours in the train or car each alternate weekend with the paternal grandparents interposed with a visit in a jail to a person with whom she has no relationship is unknown. If it was a negative experience it is unknown how the grandparents would cope with this as they don’t speculate on this in their Affidavits.

23. In any event, given the paternal grandmother knew of the father’s serious criminal activity in 2010 and seemingly did nothing to report it to the police, and given was also banned from visiting the father for two years because she attempted to smuggle marijuana to him in jail I conclude she would not tell the mother, if there was a problem.

24. If the father said something untoward to X during a prison visit, again for the same reasons she would be unlikely to inform the mother.

25. X is a six year old girl who has no relationship with and very little knowledge of her father or her paternal family.

26. The father and paternal grandfather are Aboriginal men of the (omitted) group. The paternal grandfather says his ancestors are from (omitted).

27. The mother is not Aboriginal but is not opposed to X learning of her culture but is dependent on others to teach X about her Aboriginal culture.

28. The paternal grandfather could impart this cultural knowledge to X if they spent time together, and says he wants to do so.

29. There is no evidence other than that the mother has a proper attitude towards X and demonstrates a proper attitude to the responsibilities to parenthood.

30. The father demonstrates the exact opposite.

31. He has knowingly engaged in serious criminal activity without regard for many years. This is poor role modelling for X.

32. The father has no regard for authority, repeatedly breaching good behaviour bonds, disobeying traffic rules and ingesting illegal drugs. His disregard of family violence orders whilst in prison is another example of his complete disregard for the norms of social behaviour. He seeks to excuse this behaviour because of the effects on him of prescribed medication. I find this excuse to be unbelievable. There is no expert evidence to underpin it. Time with X on his release from jail would likely expose her to this behaviour, given it is long standing and entrenched for the father.

33. He knowingly forwarded correspondence in breach of an Apprehended Violence Order. He knowingly included passages in that correspondence which on the ordinary reading is threatening, including threats of removing X from the mother’s care which can only have been made for the purpose of upsetting the mother or in an attempt to coerce her into behaviour compliant to the wishes of the father. If X learnt of this it would I am satisfied scare and distress her.

34. The paternal grandmother is similarly a poor role model predisposed to engagement in potentially criminal behaviour.

35. The last Apprehended Violence Order that existed was to protect both the mother and X from the father. That Apprehended Violence Order expired on 18 June 2014. There are no current Apprehended Violence Orders to protect either the mother or X from the father. Given he is in jail that is unsurprising.

36. The father was found guilty of breaching the last Apprehended Violence Order through behaviour (letter writing) that he engaged in whilst in prison.

37. The need to protect X is to be given greater weight that the benefit of X having a meaningful relationship with the father. This need means she should have no telephone communication with the father nor receive letters from him so as to protect her. X receives no benefit from writing to someone she does not know.

38. Although the father is in jail and guards would be present during visits they are not supervisors to the extent that they would closely observe all interactions and conversations between the father and X. The father has demonstrated capacity to say unhelpful and perhaps harmful things in letters to X. He is likely to do so in face to face jail visits.

39. The paternal grandmother is unlikely to be a moderating influence on the father, given she has been willing to cover up his criminal activity and try and smuggle illegal substances to him in jail.

40. His parents would be unlikely to provide protection to X or be able to stop unhelpful paternal interactions.

41. The father by reason of his proven anti-social behaviour has nothing to offer X other than the knowledge that he is her father. The risk that she would be exposed to in visiting the father outweighs the benefit in knowing about her paternity.

42. Long trips each alternate weekend for X to visit the father are likely to be tiring for her. They are analogous to a weekend detention order for her in that for four hours each alternate weekend she will be confined to a car or a train and then inside a jail for the duration of the visit. Her lack of existing relationship with her father or paternal grandparents leaves her likely without the emotional resources to deal with this. She is unlikely to look forward to the experience.

43. The mother is stridently opposed to the concept of jail visits. She says it negatively impacts her health in a way that I find is understandable. Reducing her capacity to function optimally as a parent, in the circumstances where she is X’s sole parent, is not in X’s interests and is a further reason to dismiss the father’s application.

44. The father’s past history of threatening letter writing means X is on balance unlikely to get any benefit from receiving letters or cards from him. She is unlikely at this stage of her development to be able to write a reply without her mother’s help. The father was when giving evidence clearly frustrated he did not receive replies to his previous letters and cards. A repeat of no reply raises the unacceptable risk the father will write further threatening letters. Due to the length of his existing sentence he is unrestrained by the consequences of such behaviour.

45. Finally making orders for X to spend time with her father on his release is not in her interest. She will at that time have no relationship with him. She is likely for that reason to be extremely apprehensive.

46. The father has no demonstrated capacity to act within the norms of social behaviour and time with him may expose X to his criminal behaviour.

47. Orders for the paternal grandparents to transport X for the next four years at least to jail visits are not practical given their age and health[6].

    [6] See pages 40 and 41 of Exhibit ‘A’

48. Finally receiving photographs of X and her report cards whilst of no consequence to X places a burden on the mother that may compromise her parenting of X. For reasons already explained compromised maternal parenting capacity will not benefit X.

Conclusion

1. For the reasons set out there is no benefit for X in visiting her father in jail.

2. Nor is there any benefit in X receiving letters, cards or gifts from the father.

3. Finally she receives no benefit from telephone communication with him. Nor is there a benefit for X in the father receiving her photograph or school reports.

4. As such the orders sought by the father are dismissed as not being in X’s best interest. The making of no further orders also protects X into the future.

5. Given that the orders sought by the father are dismissed there is no need to make an order that X spend no time with the father.

6. His imprisonment until at least October 2018 means this is the reality for X and therefore nothing more is required.  

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Judge Dunkley

Associate: 

Date:  25 November 2014