MURPHY and THORBURN

[2016] FCWA 117

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: MURPHY and THORBURN [2016] FCWA 117

CORAM: DUNCANSON J

HEARD: 24 NOVEMBER 2016

DELIVERED : 24/11/2016

FILE NO/S: PTW 6862 of 2012

BETWEEN: MR MURPHY

Applicant

AND

MS THORBURN
Respondent

Catchwords:

CHILDREN - where mother is facing serious criminal charges - where it is in the best interests of the children to make final orders providing that the children live with the father and he have sole parental responsibility for them

Legislation:

Family Court Act 1997 (WA) s 66A, s 66C, s 70A

Category: Not Reportable

Representation:

Counsel:

Applicant: Ms J Cruize

Respondent: Ms T Wenn

Independent Children's Lawyer : Mr D Rice

Solicitors:

Applicant: Legal Aid WA

Respondent: Wenn Barristers & Solicitors

Independent Children's Lawyer : Griffiths Rice & Co

Case(s) referred to in judgment(s):

Nil

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

INTRODUCTION

1The proceedings concern [Child A], born [in] 2006, now aged nine years, and [Child B], born [in] 2012, now aged four years. The parties, [Mr Murphy] (“the father”) and [Ms Thorburn], (“the mother”) have been involved in parenting proceedings since 2012.

SHORT HISTORY

2By way of brief background, the children previously lived with the mother and spent time with the father pursuant to interim orders made in 2014.

3The children’s circumstances changed in mid-2015, when the mother was arrested and charged with the murder of her baby daughter, [Child C], born in 2015. Child C had been found dead at the mother’s home and, at the time the police arrested the mother, Child A and Child B were placed in the father’s care.

4The mother is currently on remand pending a trial in respect of the death of her child. That trial is due to commence [sometime in the near future].

5Child A and Child B have lived with the father since the mother’s arrest. The father has since moved from [Town A] to the [Town B] area. He has re-partnered and he and his partner [Ms Sadler] have a child of their own.

6The children now attend school in the Town B area. They were aware of some of the circumstances concerning the death of their baby sister, and the father has arranged for the children to receive counselling at [a counselling service].

THE ORDERS SOUGHT

7The father seeks final orders in relation to the children. Specifically, he seeks orders that the children live with him and he have sole parental responsibility for them. He seeks certain injunctions restraining the mother from contacting the children or attempting to remove them from his care. He proposes however, that she be at liberty to write to the children and he will provide her with information concerning their progress, including schooling, general health and wellbeing as well as photographs.

8Importantly, the father seeks to finalise these proceedings today. The orders sought by him are supported by the Independent Children’s Lawyer. The mother was represented today. Her solicitor informed the Court that the mother is aware of the orders sought by the father. She does not wish to participate further in these proceedings. In those circumstances, I propose to deal with the father’s application.

THE LEGAL PRINCIPLES

9These proceedings are determined under Part 5 of the Family Court Act 1997 (WA) (“the Act”). In reaching my decision I will be guided by the objects of Part 5 and the principles underlying those objects.

10In deciding whether to make a particular parenting order, s 66A directs me to regard the best interests of the child as the paramount consideration. Section 66C sets out how I determine what is in a child’s best interests. I must consider the matters set out in sub-sections (2) and (3), being the primary considerations and the additional considerations respectively.

11Pursuant to s 70A of the Act, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent has been engaged in abuse of the child or family violence. The presumption may be rebutted by evidence that satisfies the Court it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.

THE EVIDENCE

12The father filed an affidavit on 3 November 2016 providing up to date information regarding the children’s circumstances.

13In these reasons I refer to the father’s said evidence.

14I have the benefit of an updating Single Expert Report from Mr Adam Peaty dated January 2016. I have considered the report very carefully. It has been of assistance to me and I also refer to it in these reasons.

PRIMARY AND ADDITIONAL CONSIDERATIONS

15The children have a meaningful relationship with the father who has been their primary carer since mid-July 2015. Unfortunately, they do not at this time have a meaningful relationship with the mother. They have not seen her since the middle of last year and, due to her circumstances, it is not possible, at this time, to change that.

16The children’s meaningful relationship with their parents must be balanced against the need to protect them from harm. Given the mother’s circumstances, that is an important consideration in this case. The father deposed the children were exposed to drug use and violence while in the care of the mother and were physically and emotionally abused by her. The evidence indicates that the children now enjoy stability and security and are settled with the father and his partner.

17In terms of the children’s relationships, it would appear that they enjoy a close and loving relationship with the father, his partner and their half-sibling. This is borne out by the terms of Mr Peaty’s report. He interviewed both girls, and both provided a very positive view on living with their father. Child A was unable to give any positive comments about her mother, and spoke of a conflict in her life while in her care. Child B also spoke positively about the father.

18The mother has been unable to participate in decisions about the children or to spend time or communicate with them by reason of her circumstances, whereas the father has undertaken their full-time care.

19It would be to the benefit of the children that there be no significant changes in their current circumstances, given that they are now making progress and doing well.

20The evidence indicates that the father provides well for the children’s needs and that is particularly evident by the fact that he arranged counselling for them at a counselling service to deal with the trauma they suffered at the time of the changes in their lives.

21The father deposes the children are aware the mother is accused of killing their sibling when she was very young and this appears to affect them greatly.

22The father has enrolled the children in [Town B Primary School]. The school has set up a support system for the children.

23The father is providing well for the children’s emotional needs. The father has also demonstrated an appropriate attitude to the children, and the responsibilities of parenthood.

24In his assessment Mr Peaty reported:

It would appear that in very difficult circumstances [Mr Murphy] is trying to provide a safe and supportive environment for [Child A] and [Child B]. He can provide good practical and physical support. He seems to have an understanding of their emotional needs and he wants them to have the best support they can to help them through a very challenging time in their lives. [Ms Sadler] appears to be a positive factor in support of [Mr Murphy] and his parenting of the children.

25There has been family violence involving the children and the parties.

26It would be preferable to make orders today which are least likely to lead to further proceedings in relation to the children. The father believes both these and the criminal proceedings, for which the children were interviewed, continue to be a source of stress and anxiety for them, although he tries to protect them from the Court cases as much as possible. I am satisfied therefore that I should make final orders.

CONCLUSIONS

27There has been family violence in the circumstances of this case, and therefore the presumption that the parties have equal shared parental responsibility for the children does not apply.

28I intend to make orders as sought by the father that the children live with him and he have sole parental responsibility for them. Having considered all of the relevant matters, I am satisfied that the orders sought by the father in his minute of proposed final orders received by the Court on 3 November 2016 are those which are in the best interests of the children.

THE ORDERS

29I make the following orders:

1All previous parenting orders be discharged.

2The children [CHILD A], born [in] 2006 and [CHILD B], born [in] 2012, (“'the children”) live with [MR MURPHY] (“the father”).

3The father have sole parental responsibility for the children.

4[MS THORBURN] (“the mother”) be restrained by injunction and an injunction issue restraining the mother from contacting or attempting to contact the children in any manner without the written consent of the father.

5The mother be restrained by injunction and an injunction issue restraining the mother from removing or attempting to remove the children from the father's care and control, from the care and control of any third party with whom the father places the children or from their school.

6The mother be at liberty to write to the children.

7To give effect to paragraph 6 above, the father keep the mother informed of an address to which she can send mail to the children.

8The father provide the mother with periodical updates as to the children’s progress at school, their general health and wellbeing; and with photographs and/or drawings done by the children.

9The Independent Children’s Lawyer be discharged.

10All subpoena material be returned to source.

11The applications and responses be otherwise dismissed.

I certify that the preceding [29] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate