WA Family Court chief judge Stephen Thackray also found that David Farnell’s past as a convicted sex offender, including being jailed in 1997 for abusing three girls, should not prevent him having custody of the girl Pipah because the judge believed he was reformed.
She was better off in Australia than Thailand and strict monitoring would include Mr Farnell never being allowed to be alone with Pipah, Justice Thackray said.
Pipah’s surrogate mother Pattaramon Chanbua had challenged Mr Farnell and his wife Wendy Li in court for custody of Pipah, because she believed him to be a pedophile and wanted to bring her back to Thailand to be with Gammy.
The Farnells, from Bunbury, south of Perth, attracted widespread negative coverage around the world in 2014, when it was revealed that WA’s Department for Child Protection was investigating if Pipah was safe with them, along with accusations they had lumped Gammy and the high cost of caring for him with the surrogate mother.
They were also condemned after being accused of accessing for themselves a trust fund set up for Gammy that had raised more than $235,000.
But Justice Thackray expressed sympathy, noting they had been called the most hated couple in Australia. He found accusations that they abandoned Gammy, because he had Down syndrome, and the trust fund claims false.
“The anguish this caused the Farnells was exacerbated by the fact that the story was untrue,” he said.
“They had in fact donated to the fund all the money they were entitled to receive from 60 Minutes for the interview they gave when the original story broke.”
The founder of the Hands Across the Water fund Peter Baines, who criticised the Farnells after a journalist told him they were trying to access the fund, told AAP on Thursday he accepted that he was wrong but had believed what he was told.
The judge said misunderstandings had led to a “tragic collision course” between a couple who saw it as their last chance to have children and the surrogate mother who decided the children were her’s.
Expert evidence pointed to a low risk of Mr Farnell reoffending – four to seven per cent according to a psychologist’s report.
“It must be stressed that there were only two options. I have chosen the one least unsatisfactory for Pipah,” Justice Thackray said.
Child Protection Minister welcomed the decision and said she was confident that enough work had been done to protect the safety and wellbeing of the child.