KINGS & MURRAY

[2011] FamCA 1139

FAMILY COURT OF AUSTRALIA

KINGS & MURRAY [2012] FamCA 1139

FAMILY LAW – CHILDREN – Parenting orders – undefended hearing – where the father withdrew from the proceedings but seeks that a notation be made for parents to engage in mediation in 12 months time – where there is no evidence about circumstances in 12 months time – no order or notation made about mediation – parental responsibility – where the parents cannot cooperate to co-parent the child – finding that there has been violence – presumption of equal shared parental responsibility rebutted – sole parental responsibility allocated to the mother – child shall live with the mother – where the father seeks that

Family Law Act 1975 (Cth), ss 60CC, 61DA, 68B

APPLICANT: Ms Kings

RESPONDENT: Mr Murray

FILE NUMBER: CAC 1200 of 2010

DATE DELIVERED: 6 February 2012

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 6 February 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: No appearance by or on behalf of Mr Murray

SOLICITOR FOR THE RESPONDENT: Ms Kings represented herself

Orders

1. In accordance with the request sent to the Court by Mr Murray this day by e-mail all his existing applications are withdrawn and accordingly dismissed.

2. All existing orders relating to Z (“the child”), born .. August 2006, are discharged. 

The following orders are made after an undefended hearing before me this day in relation to the applications made by Ms Kings and in relation to the orders sought by her contained in the Minute of Orders filed in this Court on 25 January 2012 which I accept has been sent to Mr Murray’s parent’s address as Mr Murray’s address for service.

1. Ms Kings have sole parental responsibility for Z, born … August 2006.

2. The child will live with her mother.

3. No order is made in relation to any communication or time that the child might spend with her father.

4. i          The applicant mother will advise the respondent father about any major accident or major health issue in relation to the child to the last communicated address of the father or communication point. 

1. The respondent father is required to maintain an address or communication point with the applicant.  Any communication pursuant to this Order will be made to the last notified address or contact point of the father.

1. The respondent father may contact the B School and arrange, at his expense, to be included in the list of those receiving notices and reports from the school or any other communication from the school.  He may produce this Order to the school in justification of his contact with the school if he wishes to do so. 

2. The respondent father be and is hereby restrained from harassing, threatening or intimidating the applicant, Ms Kings or the child, born … August 2006, and is further restrained from approaching within a hundred metres of either the child or her mother. 

3. The respondent is further required immediately upon his meeting either the child or her mother unexpectedly in a public place to remove himself immediately.

10. These orders are orders made pursuant to s 68B of the Family Law Act 1975 which are orders for the personal protection of the applicant mother and the child and any police officer who believes on reasonable grounds that Mr Murray against whom the injunctions are directed has breached the injunction by:

1. Causing or threatening to cause bodily harm to the protected persons, or

2. Harassing, molesting or stalking the other person

the police officer may arrest the respondent without warrant.

11. Notwithstanding the above orders, the respondent may communicate with the child by sending gifts or written communications to the C Town address of the applicant’s father or the D Town address of the applicant’s mother for forwarding to the child. 

12. If at some point the child wishes to seek the respondent father and to resume some form of contact with him the applicant mother will do all things reasonably within her power to facilitate this occurring. 

13. The Orders made by Registrar Parker on 30 August 2010 and subsequently affirmed by me on 1 November 2010 relating to the placing of the child’s name on the Airport Watch List is hereby discharged and I request that the Australian Federal Police make appropriate notations to ensure that this occurs.

14.a.     Nothing prevents the applicant from visiting New Zealand with the child for the purposes of a holiday.

b.Notwithstanding the last mentioned suborder the applicant be and is hereby restrained from relocating from Australia to New Zealand or any other place permanently without a prior order of this Court and she be and is hereby restrained from removing herself or the child from Australia for that purpose.

15. Order 15 sought by the applicant is refused on the grounds of lack of jurisdiction.

16. Notwithstanding the respondent’s request to do so, the respondent be and is hereby restrained from serving any application he may file in relation to the child without it at first instance being considered in Chambers by a Judge of this Court. 

17. No application in this matter may be made otherwise then in the Canberra Registry of the Family Court without the leave of a Judge of the Family Court. 

18. After consideration by a Judge of this Court in Chambers of any application filed by Mr Murray, if that Judge considers it appropriate to do so and not to dismiss the application summarily such directions will be given for service upon the respondent as may be appropriate. 

19. All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.

20. Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it.  Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.

21. Pursuant to s 62B and s 65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled Parenting orders - obligations, consequences and who can help, a copy of which is annexed to these orders.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC1200/2010

Ms Kings

Applicant

And

Mr Murray

Respondent

REASONS FOR JUDGMENT

The parties’ applications

1. The orders in this matter are made after an undefended hearing before me this day in relation to the applications made by Ms Kings (“the mother”) and in relation to the orders sought by her which are contained in the Minute of Orders filed in this Court on 25 January 2012. I accept a copy of the Minutes of Orders has been sent to Mr Murray’s (“the father’s”) parents’ address as the father’s address for service.

2. My reasons for my decision are as follows.  This matter has a very long history before the Court.  There have been many orders made relating to the child Z.  In the present proceedings, an e-mail was received by this Court from the father this day (e-mail marked exhibit “J1” in the proceedings) and note that a copy of the e-mail was given to Ms Kings prior to proceedings commencing in this Court today.  In his e-mail the father says as follows: 

   In any case, until further notice, I am withdrawing all applications to the court in relation to [the child Z].

3. The father then gives some reasons for that.  He indicates that he will not be in Court on this day and asks (and I note for the purposes of these proceedings) that he wants it to be noted that:

   I will some time in the future wish to rekindle my relationship with my daughter [Z] as I love her very much. 

4. He seeks that there should be two matters noted in relation to any orders made this day in his absence.  (This presupposes that he expects that orders will be made in his absence, and I note that he has been given notice of the orders that were being sought by the mother on this day.) 

5. The two notations are as follows:

   a)That 12 months from this date the parties will engage in good faith and undertake mediation with a view to the purpose of re-initiating physical contact between the father and the child.

   b)That failing any positive results from such mediation the father be granted leave to file an application with the Court for the purposes of re-initiating a relationship with the child, and any application by the father for this purpose not be filed until 12 months after the date of these orders.

6. These are not sought as orders on his part, but for the purposes of my consideration of the matter, I treat them as if they were, in effect, an application for an order because it is only in that context that they might reasonably be examined.

7. The first of the orders sought by the father in this context would require the parties to begin a further mediation process in 12 months’ time.  This is not an order which I believe to be appropriate to make as a final order in these proceedings.  No one can say the circumstances that will be applicable to the parties in 12 months time - or to the child.  To commit the parties, and impliedly the child, to some process of further communication, mediation, conciliation or any other form of negotiation in 12 months time without there being any justification demonstrated therefore is, in my opinion, premature and unreasonable.

8. It is clear from the orders sought by the mother that if the child wishes to resume communications with her father she will try to facilitate that.  I accept the father may not accept that she will so try, but it may be of some consolation to him that in the orders being made I make such an order.  An order relating to mediation at some time in the future would not be practicable. 

9. Further, I decline to permit, particularly in a matter of this sort, an open opportunity for the father to file a further application in 12 months time - or at any time.  I am not precluding his making any such application because it seems to me that there may always be circumstances which could give rise to a justification for further proceedings before this Court.  However, bearing in mind the law and, in particular, the need for the child to be protected from serial proceedings before this court, it would be necessary for any application by the father to demonstrate a compliance with what has been referred to as the rule in Rice v Asplund[1] and to demonstrate that there is a basis for proceedings to be reinstituted.

   [1] (1979) FLC 90-725.

10. If the father makes such an application in the future it should, at first instance, be made in Chambers - without being served upon the mother - to avoid the mother’s having to engage in further legal proceedings until there has been a determination that there is a proper basis for her to be served with the documents and for the matter to proceed.  Accordingly, such a restriction will be imposed by order of this court. 

Best interests of the child

1. The paramount consideration in relation to any parenting orders in this court is the best interests of the child. 

2. In this regard, the best interests are to be determined in accordance with the provisions of s 60CC of the Family Law Act 1975.  These are constituted by two primary considerations and a number of additional considerations. 

Primary considerations

1. The primary considerations are:

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

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

2. The additional considerations are lettered (a) to (m) and I will refer briefly to those which I consider to be relevant in these proceedings. 

3. However, dealing first with the primary considerations.  In this matter, there have been disputes between the parties for over about six years about the time the child might spend with her father.  It would be reasonable to say that there have been many formulae considered and endeavoured to be introduced to permit some form of relationship to continue.  Without assigning blame to either parent, it is clear that these arrangements have all failed.  And, at present, there is no reasonable prospect of a practicable institution of a physical or oral communication or relationship between the child and her father.  I come to this conclusion based on the material filed by the mother and upon the father’s acknowledgement of this situation in exhibit “J1”. 

4. Second, there is a need to protect the child from physical or psychological harm given the long history of litigation between the parties and the allegations in the past of physical violence.

5. In addition, I am satisfied from exhibit “M1”, a record of police matters relating to the father, that whether or not he has been convicted of or orders have been made about domestic violence or apprehended violence against him, there is a history of his being involved in altercations which are of a serious and significant nature. These altercations appear to have occurred from the time of separation from the mother.  These would cause me to be concerned that, if the child were to have time with him at this point (in circumstances where he has not attended to oppose the orders that are presently being made), there might be an unacceptable risk of her exposure to violence or to some psychological harm.

Additional considerations

1. I take account of the child’s views as expressed in the material I have before me, noting that the father believes that such views have been conditioned by the child’s mother.  I make no finding in relation to that and I do not need to do so.  I accept that the child’s views at present are that she does not wish to see her father and I have no evidence to support the father’s allegation. 

2. The child has a clear, appropriate and supportive relationship with her mother and that relationship has been her sustaining force in the course of these long proceedings between the parties, which have occupied almost all of the child’s young life.

3. The relationship she has with her father is at present non-existent.  I note, however, the orders I propose to make would (at the request of the mother) facilitate the child’s resuming her relationship with the father at some point if she wished to do so. 

4. I do not believe that the child’s father is capable of facilitating a close and continuing relationship between the child and her mother.  I make no finding in relation to the willingness and ability of the mother to facilitate such a relationship between the child and her father.  I note, however, that it is the mother’s application that she would so facilitate such a relationship if the child seeks it.

5. The arrangements proposed in my orders will not produce any significant change in arrangements for the child. There is nothing further under s 60CC(3)(d) I need to take into account.

6. Because of the nature of the orders, paragraph (e) is not applicable. 

7. In relation to paragraph (f), I am satisfied that the applicant mother has the capacity properly to look after the child and to provide for her needs, including her emotional and intellectual needs.  I am not so satisfied about the father.

8. Subparagraphs (g) and (h) do not have any particular application to this matter.  These relate to the child’s background, cultural matters and the fact that she is not an Aboriginal child. 

9. I note that the dispute between the parties has centred, to some extent, on their respective attitudes to the child and to the responsibilities of parenthood.  It is unnecessary for me to canvass these in any particular detail because these proceedings are undefended.  I note, however, that I am satisfied that the mother has demonstrated a proper and protective responsibility towards the child and that the father by, in some respects withdrawing from these proceedings, has demonstrated a concentration on the child’s wellbeing rather than on pursuing the litigation before this court which may have caused the child further distress.

10. There are instances of family violence and family violence orders, parts of which are recorded in exhibit “M1” and further recorded in the affidavits filed on behalf of the mother and in part corroborated by some of the comments made by the father in the material filed by him.  The removal by these orders of the father from any direct contact with the mother or with the child and the injunctions imposed mean that there is no particular concern about family violence to the child’s mother or to the child in the future.

11. In saying this, I acknowledge that an order of the court does not, of itself, prevent something from occurring.  However, because I have accepted that these orders would be for the personal protection of the child and her mother, it does facilitate immediate police action if there should be any breach of these orders or any violence offered or threatened towards either the child or her mother. 

12. Section 60CC(3)(l) requires that I should make an order, if I can, which would be least likely to lead to the institution of further proceedings in relation to the child. In this regard, the order I make does not accept the father’s proposition that he be at liberty to reinstitute proceedings at an (apparently) arbitrarily chosen period of 12 months. The orders I make do not preclude the father making an application if he considers it to be in the child’s best interests to do so. However, the qualifications in my order mean that the mother and the child will not be directly involved, initially, unless there is a proper ground for that application.

13. There are no other relevant facts or circumstances which bear significantly upon my decision.  I note that my primary decision was that the mother should have sole parenting responsibility.  I acknowledge s 61DA of the Act provides that 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 that child.  However, that presumption does not apply if there are reasonable grounds to believe that a parent of a child has engaged in abuse of the child or family violence. In this case, leaving aside the issue of abuse which was the subject of previous determinations before this court, I am satisfied there has been violence.

14. Even if I were not so satisfied, s 61DA(4) provides that the presumption may be rebutted if the court is satisfied that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility  In my opinion, the evidence amply demonstrates that the father and the mother cannot work cooperatively to exercise equal shared parental responsibility. In such circumstance, it is important for the child’s best interests that she should have one parent who will have responsibility for her.  Accordingly, in my opinion, the presumption is rebutted.  There should be sole parental responsibility for the mother.  I note qualifications on that, suggested by the child’s mother, to the extent that information will be supplied to the father in relation to certain matters and I accept that is appropriate.

15. I also note for the purposes of this judgment that the rebuttal of the presumption for equal shared parental responsibility does not mean a denial of parental obligation.  The obligations of each parent in relation to the child are not rebutted by this determination or by the orders.  The father remains a person who has obligations to his daughter which I hope he will meet in the future. 

1. Otherwise, the matter is removed from the pending cases list and I make the usual order in regard for the return of material produced in response to subpoenas.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 6 February 2012.

Legal Associate: 

Date:  21 February 2013