Marsh and King

[2014] FamCA 950

FAMILY COURT OF AUSTRALIA

MARSH & KING [2014] FamCA 950

FAMILY LAW – CHILDREN – Parenting orders – Undefended – Mother in prison for manslaughter – Mother does not participate – Orders made.

Family Law Act 1975 (Cth)

APPLICANT: Mr Marsh

RESPONDENT: Ms King

FILE NUMBER: DGC 1486 of 2008

DATE DELIVERED: 3 October 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 3 October 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Henwood

SOLICITOR FOR THE APPLICANT: John G O’Halloran

THE RESPONDENT: No appearance

Orders

1. That the father have sole parental responsibility for the child X born … 2008.

2. That the child live with the father.

3. That the mother be restrained by injunction from having any contact with the child X born … 2008.

4. That pursuant to s 65DA(2) and s 62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

5. That the solicitor for the father serve by post a copy of this order and in due course, a copy of the reasons on the mother.

6. That the reasons this day be transcribed and be made available to the parties.

7. That the application filed 24 June 2014 is otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Marsh & King 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 MELBOURNE

FILE NUMBER: DGC 1486 of 2008

Mr Marsh

Applicant

And

Ms King

Respondent

REASONS FOR JUDGMENT

1. This is an application that was filed on 24 June 2014 by Mr Marsh, to whom I shall refer in these reasons as the father, seeking orders relating to X (“the child”) who was born in 2008 and who is therefore coming up six years of age.  The respondent to the proceedings is Ms King, to whom I shall refer as the mother.

2. The proceedings having been issued, a hearing was fixed for 25 July 2014.  That appears to have somehow been adjourned until 20 August.  The registrar, on 20 August, was satisfied that there was sufficient evidence that the mother had been served with the documents and presumably, she was relying on the affidavit of Mr O’Halloran who said that he posted the documents to the P Correctional Facility, which is a prison.

3. There being no appearance on 20 August, the registrar adjourned the matter to today into the judicial duty list and ordered that the mother be served by post to the same address.  I now have an affidavit by Mr O’Halloran, again, indicating that he has sent those documents by post.  The court received an email or a telephone call from a person who named herself as R from Corrections Victoria, and the message reads:

   [R] from Corrections Victoria called and said that Ms [King] is aware of the hearing date on 3 October 2014;  however, has decided not to attend.

4. On the basis that the telephone call from Corrections Victoria corroborates the fact that the documents as set out in Mr O’Halloran’s affidavit were received, I think it is sufficient to say that the mother has had natural justice provided to her and she has had an opportunity to be heard.  I shall give leave to the father to proceed in the absence of the mother.  It must be also said that at no stage subsequent to June 2014 has any material been provided by the mother.

5. The mother’s history is sad, and it does not just necessarily relate to this proceeding.  The court file, which goes back to 2005, indicates that there were orders made in relation to a child, K, who was born in 2001- that order was made in 2005 – and an arrangement was made for a week about arrangement.  There is no evidence in relation to K in these proceedings.  There was a relationship then between the mother and the father which gave rise to the birth of Y who was born in 2007.  That relationship between the mother and the father came to an end sometime in early 2008, and prior to the birth of X, final orders were made that Y was to live with the father.

6. The child X was then born.  I have very little evidence as to what has happened to the child up until one catastrophic event which is set out in some detail in the annexure to the affidavit of the father filed on 2 October 2014.  That annexure is the sentencing remarks of a Judge of the Supreme Court of Victoria in relation to the mother from a sentencing hearing in early 2012. 

7. I do not propose to incorporate all of the detail in these reasons, save to say that the mother was in a relationship with a man other than the father.  An incident occurred and the man that she was with was stabbed by her with a knife and he died very quickly.  The mother was charged with murder, but a jury was satisfied, no doubt beyond reasonable doubt, that she was guilty of manslaughter and the sentencing judge sets out in some detail not only the circumstances of the offence, but also background of the mother.

8. It is not pleasant reading, but in relation to the child X, I would have some concerns about the approach that the mother might take to the child if she did not get her way.  I say that because there is evidence of other violent offences or conduct which are clearly inconsistent with responsible parenting.  The sentencing judge noted that the mother had attended upon a Mr N who is a psychologist.  Mr N estimated that her underlying intelligence fell at the high end of the average range and her mental status was otherwise unremarkable.  She had no clinical significant symptoms of anxiety or depression and her thought processes were lucid; she showed no sign of psychosis.  Nothing indicated that her moral reasoning was impaired.

9. Mr N told the sentencing judge in his report that he based the prospect of rehabilitation as bright;  he based that hope on a supposed watershed realisation of the mother’s part of her previous habit of “violent response to conflict” as not being normal.  His Honour obviously took the view that whilst this was a very serious event in which a young man was killed, the court had to denounce the mother’s resort to violence in terms of dealing with conflict.

10. I set this out in case any future application by the mother might be made.  I propose to injunct the mother from having any contact with the child.  Whilst the sentencing judge said, “There is otherwise no solid grounds for high optimism,” he thought that this was a case where condign punishment should follow and he sentenced the mother to eight years imprisonment and fixed a non-parole period of five years.  The mother had, at that stage, already served 760 days.

11. Thus it can be seen that she had been in custody for the best part of two years prior to the sentencing.  It seems that there was little, if any, relationship between the child and the mother.  The sentencing remarks otherwise do not paint a very bright picture for any future relationship between mother and child.  There is no contradictor in this case, but that does not mean that the father gets the parenting orders he seeks by default.

12. On any view, there is no relationship occurring between mother and child and on the basis of what I have read in the Supreme Court judge’s sentencing remarks, that is hardly surprising.  The mother’s message from Corrections Victoria of not wishing to participate and attend today just adds to the complications.

13. This is an application for a parenting order, and thus s 60CA of the Family Law Act 1975 (Cth) (“the Act”) applies; the court must, when making a parenting order, make an order which is in the best interests of the child. Section 60CC is the provision that the court must turn to, to decide what is in the child’s best interests.

14. Section 60CC is divided into two particular parts; the first relates to what is described as primary considerations, and the second is additional considerations.  The primary considerations relate to the benefit of a child having a meaningful relationship with both parents and if one looks at section 60B, that meaningful relationship is one of the primary aspirations that the Australian people has for all children. 

15. That is not possible in relation to the child X and the mother, not only because of the fact that there is no current relationship and has not been for some time, but the sentencing remarks of the Supreme Court judge indicate that there would be little that the child would benefit from having a relationship with his mother, absent some very significant rehabilitation as was being contemplated.

16. The second of the primary considerations relates to the need to protect the child from psychical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.  I need not dwell on that because it is quite clear that until such time as the mother resolves her problems with society, it would not be sensible for the child to be spending time with or around her, supervised or otherwise. 

17. The additional considerations need to be mentioned.  I do not understand what the child’s views are about the position because there is no evidence of that, but I can conclude that he would have had little understanding of his mother’s role in his life.   The nature of the relationship between the child and each of the parents is as I have already indicated and there is little I can do to change that situation having regard to the options that are open to the court.

18. One of the considerations is the extent to which a parent has taken or failed to take the opportunity to participate in decisions about matters of substance for the child’s future.  The mother has obviously not participated and, again, her absence here today indicates her position.  There is no suggestion of an alternate option, so I do not need to consider changes in circumstances or practicalities of contact.  There is no suggestion other than that the father is doing an excellent job in caring for the child, providing for her emotional and intellectual needs.  The Department of Human Services does not seem concerned. 

19. One of the significant issues in determining what is in the best interests of a child is to look at the nature of the attitude to the child and the responsibilities of parenthood demonstrated by each of the parents.  The history to which I have already referred speaks volumes.

20. A person who commits the sorts of offence that the mother was involved in, arming herself with a knife and other issues about alcohol and violence must be seen to be irresponsible parenting.  The whole fundamental principle of parenting is the protection of a child in what is obviously a very difficult world.  A parent involved in drugs and violence can hardly be said to be a good mentor for a child.  In this case, the family violence is quite clear from the history as between the father and the mother.

21. One of the questions that always has to be answered is whether or not it would be preferable to make an order that would be least likely to lead to institution of further proceedings in relation to that particular child.  To exclude the mother from the child’s life by injunction is a very serious step, but I have no other evidence that would indicate that the mother is doing what the sentencing judge was contemplating, nor what proposals she has to participate in the child’s life in the future.

22. As I remarked, she may decide to make an application if she cannot reach agreement with the father, but no doubt there will be severe restrictions while she is on parole, on what she can do in approaching the father, in any event.  Having considered all of those matters, it seems to me that it is in the best interests of the child to make the orders that are sought.

23. Section 61DA of the Act provides that, when making a parenting order, the Court is obliged by law to start from the rebuttable presumption that it is in the best interests of a child that the parents have equal shared parental responsibility. In this case, the father seeks an order for sole parental responsibility.

24. Subsection (2) of s 61DA provides that if the Court is satisfied that there has been family violence, the presumption is rebutted. Even in this case, if that was not the case, subsection (4) provides that, in circumstances where it is not in the best interests of the child for the parents to have equal shared parental responsibility, the presumption is again rebutted.

25. The best test for that second leg of the presumption lies in s 61DAC, which imposes obligations on parents who have equal shared parental responsibility to consult with one another and make decisions about a child’s future. On any view of the facts of this case, that cannot happen.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 3 October 2014.

Associate: 

Date:  5 November 2014