Morrisey and Morrisey

[2013] FamCA 537

FAMILY COURT OF AUSTRALIA

MORRISEY & MORRISEY [2013] FamCA 537

FAMILY LAW – PARENTING – Undefended hearing – With whom the child lives – Parental responsibility – where earlier interim orders were made for the Father to have time with the children – where the Father has made no attempt to contact the children – Where the Father suffers from bi-polar disorder – s60CC Family Law Act 1975 (Cth) – MRR v GR (2010) 240 CLR 461 – Where there is a need to protect the children from physical or psychological harm – Order made for Father to have no contact with the children – Children to live with the Mother – Mother to have sole parental responsibility for the children.

APPLICANT:

Mr Morrisey

RESPONDENT: Ms Morrisey

INDEPENDENT CHILDREN’S LAWYER: Ms Awyzio, Solicitor

FILE NUMBER: BRC 11010 of 2010

DATE DELIVERED: 7 June 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 7 June 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: There being no appearance by the Applicant Father

COUNSEL FOR THE RESPONDENT: Mr Pedder of Counsel appearing for the Respondent Mother

SOLICITOR FOR THE RESPONDENT: Sarah Cleeland Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Awyzio, Solicitor of DA Family Lawyers appearing as the Independent Children’s Lawyer

Orders

IT IS ORDERED THAT:

1. All previous Orders be discharged.

1. The children, B born … 2000 and C born … 2003, live with the Mother.

1. The Mother have sole parental responsibility for the children.

1. The children have no contact with the Father.

1. The Independent Children’s Lawyer be discharged.

2. 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 by this Court under the pseudonym Morrisey & Morrisey 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 BRISBANE

FILE NUMBER: BRC 11010 of 2010

Mr Morrisey

Applicant

And

Ms Morrisey

Respondent

REASONS FOR JUDGMENT

1. This is a most tragic case.  It had come on before me on 5 April 2012 where the applicant father, Mr Morrisey, did not appear.  It is in relation to two children of his relationship with the respondent, Ms Morrisey, they being B, born in 2000 and C, born in 2003.  Upon his non-appearance, there appeared for the independent children's lawyer, Ms Awyzio, and a Mr Carlton of counsel appeared for the respondent mother.  As a result of submissions and evidence put before me at that stage, I made an interim order on 5 April 2012 and I incorporate in these my reasons for judgment such interim order. 

2. Subsequent thereto, the father has not seen the children nor has he endeavoured to contact them in any way whatsoever.  That is correct, is it not?  There has been absolute silence from him.  On the evidence before me, it appears that Mr Morrisey suffers from bipolar disorder and also is addicted to, at least, marijuana.  I say that because of exhibit 1 which is put before me by the independent children's lawyer this morning in which they set out quite lengthy dealings not only with the mother, the children and the – but in particular with the father.  I incorporate the whole of that document in these my reasons for judgment and they indicate that - - -

   RECORDED   :   NOT TRANSCRIBED

3. See the second of the yellow tags in the document which I understand has been put upon those documents by the independent children's lawyer in order to assist me in getting to perhaps the crux of the matter or go as counsel – some counsel say cutting to the chase.  It appears in the last sentence on that large paragraph:

   Based on the information provided by the notifier, [Mr Morrisey’s] mental health is currently unstable and he has himself reported daily marijuana use.  Therefore, should he resume care of his children at this time, further assessment of the risk to the children may be required based on the child protection history of this family which is not good.

4. There have also been other allegations about foster children in the care and possession of the mother which does not do her much credit. However, perhaps once again this Court is faced with that dreadful least detrimental alternative. Obviously, the father has no interest in prosecuting his application which initially I think was the seeking sole parental responsibility for the children and supervised contact for the mother. He has not agitated the Court to any great extent at all, at least for the last two years or at least last year and, consequently, I have to determine whether the matters put before me by the mother are sufficient for me to be satisfied pursuant to provisions of section 60CC.

5. I am more than satisfied, according to the authorities, that I do not have to go through the whole of section 60CC in detail. Needless to say that I am more than satisfied that as a result of the obviously disinterest – uninterest of the father in the welfare of his children, the fact that he appears on the evidence before me to be drug addicted, that he does suffer from a damaging mental disorder called bipolar and I note that there is a recent admission wherein he was suffering from a manic episode. That, in itself, would not in any way be to the advantage of these young men who are aged about 13 and 10 or thereabouts. Almost 13 and 10.

6. I take into consideration all those matters and in particular for that – I doubt if section 60CC(2)(a) can, in any way, apply to this matter since I doubt very much whether the children could have a meaningful relationship with both parents. They obviously have with their mother. And section (2)(b), these being the primary considerations of section 60CC are such that the child needs to be protected from physical or psychological harm. That is quite clear in this case and, if for no other reason, I am satisfied that I should award sole parental responsibility to the mother.

7. I take into consideration the doctrine as exposed in the case that I refer to as  MRR v GR (2010) 240 CLR 461 in the High Court ….. and I am satisfied that the hurdle of joint parental responsibility has clearly been overcome in this case and it is not in the best interests of the children to have shared parental responsibility. Consequently, I then have to consider the question of contact. In this case, I am persuaded as has fallen from counsel for the respondent mother, that there should be no contact and I need to say that it is patently obvious in the circumstances:

   a)That the father’s health would not advance the children’s welfare;

   b)He appears to be totally uninterested in the welfare of the children.  He has not endeavoured to contact them, for at least two years perhaps even longer.

8. And in those circumstances, I do not believe the children’s welfare requires any form of contact between the father and his children.  In those circumstances, I order that the mother have sole parental responsibility of the children, that the children live with her and that there be no contact between the children and the father.  The independent children's lawyer, in their proposed orders, has sought perhaps that there should be contact as agreed but after a short consideration, Ms Awyzio is of the view that no benefit would come from the children and she supports the orders as sought by the respondent mother.

   RECORDED   :   NOT TRANSCRIBED

9. I discharge the independent children's lawyer.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 7 June 2013.

Associate: 

Date:  7 June 2013