Murdoch and Bell

[2011] FamCA 442

FAMILY COURT OF AUSTRALIA

MURDOCH & BELL [2011] FamCA 442

FAMILY LAW - CHILDREN – interim orders – with whom a child lives – where final orders that the children live with the mother were previously made by consent – where there are now concerns about the mother’s capacity to care for the children – where the children have settled in the care of the father – best interests – orders that the children live with the father and spend time with the mother – orders that the father have sole parental responsibility.

Family Law Act 1975 (Cth) s 60CC

Goode & Goode (2006) FLC 93-286
Marvel & Marvel (No 2) (2010) 240 FLR 367

APPLICANT: Mr Murdoch

RESPONDENT: Ms Bell

FILE NUMBER: ADC 1492 of 2011

DATE DELIVERED: 2 June 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 2 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Du Barry

SOLICITOR FOR THE APPLICANT: White Berman & Co

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: N/A

Orders

1. Pursuant to Section 13C of the Family Law Act 1975 as amended the parties do attend privileged counselling at a place and at a time to be fixed by the Court to discuss the care, welfare and development of the children K born on … October 1996 and J born on … April 1998 and in an endeavour to resolve any differences between the parties in relation thereto.

2. The father’s Initiating Application filed on 21 April 2010 is referred to a Registrar for directions after the s.13C counselling has taken place.

3. The matter (if not resolved) is to be adjourned to 7 September 2011 at 9.15 am before the Honourable Justice Dawe.

4. All parenting orders are discharged.

DURING THE PERIOD OF THE ADJOURNMENT AND PENDING ANY FURTHER APPLICATION OF EITHER PARTY IT IS ORDERED:

1. The children K and J are to live with the father.

1. The children K and J are to spend time with the mother at such times and on conditions as the parties may agree and in default of agreement as ordered by the Court.

1. The father have sole parental responsibility for both of the children.

1. 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.

Liberty to apply for consequential orders.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER:  ADC 1492 of 2011

Mr Murdoch

Applicant

And

Ms Bell

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. The orders are made on the basis of the material in the affidavit filed by the father which has been served on the mother, as indicated in the affidavit of service. 

2. I have also received the evidence of the father this morning indicating that the mother is aware of the proceedings and has indicated in a text message that she has no problem with the children living with the father. 

3. This is a matter in which the old file (which came into existence in around 2002 and was concluded in 2005) indicates some previous litigation between the parties about the children and what could be described as some matters of concern in relation to the father’s capacity to provide care for the children as expressed by Justice Murray in her ex tempore judgment of 9 September 2005.  Those final orders provided for the father only to have supervised time with the children, who were then living with the mother by consent.

4. The orders that the children live with the mother were made in 2004 and the final order for the children to spend supervised time with the father were made in September 2005. 

5. A considerable period of time has now passed and, accepting the unchallenged evidence of the father in his recent affidavit now on file, the mother has made arrangements to vary the time the father spends with the children.  In fact, he has been spending time with the children on an unsupervised basis for a considerable period of time. 

6. The most significant factor is the issue which relates to the incapacity of the mother to provide appropriate care for the children based upon the events which happened in late January and thereafter.

7. The affidavit of the father sets out serious concerns based upon the mother’s attempted suicide and the significant injuries she has incurred as a result.  It also raises very serious issues about the welfare of the children in the household of the mother and her current partner. 

8. The affidavit sets out the arrangements which were made for the children to come into the care of the father recently, those arrangements being made in conjunction with the mother’s parents (the maternal grandparents). 

9. I also take into account the ages of the children (being significantly aged 14 and 13) and the indication that the children are now in the care of the father, wish to remain in the care of the father and are settled in the care of the father. 

10. Primarily the decision has to be made on the basis of what is in the best interests of the children taking into account the provisions of section 60CC.

11. Considering the authority of Goode & Goode (2006) FLC 93-286 and the more recent authorities of Marvel & Marvel(No. 2) (2010) 240 FLR 367 I have no difficulty in this case deciding that in the current circumstances it is not in the best interests of the children for there to be joint parenting responsibility on an interim basis and that it is not appropriate for there to be orders made at this stage that the mother spends substantial and significant time with the children. Rather, on an interim basis, it is appropriate for orders to be made that the children live with the father and spend time with the mother as may be agreed between the parties and on such conditions as the parties may agree.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 2 June 2011.

Associate: 

Date:  15 June 2011