Marvel & Marvel

This matter concerned an application by the father, Mr Marvel, against the mother, Ms Marvel, regarding their child, X. The dispute arose in the context of the father's prior conviction for child sexual assault against the child's half-sibling. The father had discontinued his application for final orders. The mother sought orders for sole parental responsibility, that the child live with her, and that there be no time or communication between the child and the father. The Independent Children's Lawyer supported the mother's application. The court was the Family Court of Australia, presided over by Hannam J.

The central legal issues before the court were: firstly, what orders were in the best interests of the child, X, under section 60CC of the *Family Law Act 1975* (Cth); and secondly, whether to grant the mother's application for sole parental responsibility, the child to live with her, and for no time or communication with the father, including protective orders against the father. The court was required to consider the primary considerations under section 60CC(2), namely the benefit of a meaningful relationship with both parents and the need to protect the child from harm, with a greater weight to be given to the latter.

Hannam J reasoned that the father's conviction for child sexual assault against the child's half-sibling, and further allegations made by the child's half-sibling, established an unacceptable risk of physical or psychological harm to the child X. The court gave greater weight to this need for protection over the benefit of a meaningful relationship with the father, particularly as the father had discontinued his application and thus implicitly accepted there was no benefit to the child in fostering a relationship with him. The court noted that the presumption of equal shared parental responsibility under section 61DA did not apply due to the father's abuse of another child in the household. The court found that the mother had been the primary caregiver and that the child had had minimal contact with the father since mid-2016. The additional considerations under section 60CC(3) were given fleeting consideration, with the court deeming it inappropriate to consider the child's views given the severity of the father's conduct.

The court made orders as sought by the mother and supported by the Independent Children's Lawyer. These orders included that the mother have sole parental responsibility for the child, that the child live with the mother, and that the father have no time and no communication with the child by any means. Furthermore, the court made protective orders under section 68B of the *Family Law Act 1975* (Cth), restraining the father from contacting the mother or child and from approaching their residences or places of employment or education, with a power of arrest without warrant attached pursuant to section 68C.