Abdou and Abdou

[2018] FamCA 829

FAMILY COURT OF AUSTRALIA

ABDOU & ABDOU [2018] FamCA 829

FAMILY LAW – CHILDREN – Parenting – where the applicant is a person interested in the welfare of the child – where the mother is disabled – where the father is unknown – where orders for medical treatment authorisation are necessary.

Family Law Act 1975 (Cth)

APPLICANT: Mr Abdou

RESPONDENT: Ms Abdou

FILE NUMBER: MLC 11706 of 2018

DATE DELIVERED: 9 October 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 9 October 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Mastroianni

SOLICITOR FOR THE APPLICANT: Nicholes Family Lawyers

COUNSEL FOR THE RESPONDENT: No Appearance

SOLICITOR FOR THE RESPONDENT: No Appearance

Orders

1. Mr Abdou have parental responsibility for X (born … 2006).

2. The application filed this day is otherwise dismissed and the proceedings are removed from the List of Matters awaiting finalisation.

3. That pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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.

4. The reasons this day be transcribed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Abdou & Abdou has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11706 of 2018

Mr Abdou

Applicant

And

Ms Abdou

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is an application brought on very quickly in which the applicant is Mr Abdou, who is said to be the uncle of X (“the child”). The child was born in 2006. The respondent to the proceedings, Ms Abdou, who is the child’s mother, is disabled to the extent that she is said to have a very limited intellectual capacity to make any decisions in relation to the child.

2. The other parent would be the child’s father, but according to the evidence of the applicant, the birth certificate shows no known father, and having regard to the nature of the mother’s intellectual capacity and the fact that the uncle, who is the applicant, does not know how the conception and pregnancy came about, one must conclude that there is no other person who would be affected by any order of the Court.

3. Section 65C of the Family Law Act 1975 (Cth) (“the Act”) provides that the Court can hear an application for parenting orders by any person concerned with the care, welfare or development of the child. In this case, the affidavit material supports a conclusion that the applicant has been integrally involved in the care of the child.

4. At some stage in 2017, the Department of Health and Human Services intervened in this the child’s life and orders were made in the Children’s Court which included an authorisation to allow the applicant to make decisions in relation to her medical treatment.

5. I am satisfied the applicant has had a role in the care of the child, both physically and emotionally and that he is a person who fits within the definition in s 65C(c) of the Act.

6. Section 64B of the Act provides that the Court can make a parenting order in the form of any of the matters that are set out under that section. One of those provisions is the allocation of parental responsibility. That is the only order that is sought by the applicant.

7. Parental responsibility is obviously defined in the Act to include all of the decision-making powers and authorities in relation to what would normally be undertaken as a matter of law by parents. That is what the applicant seeks here. There being no other opposition that could be mounted to such an order, I consider it otherwise be appropriate to make it. I am satisfied that it is in the best interests of the child that the order be made. That, obviously, arises as a result of a consideration of the provisions of s 60CA and s 60CC of the Act.

8. In this case, it appears that the child suffers from a cancer-like disease which has already been treated, and it was treated at a time by the hospital as a result of the authorisations made by the applicant through his delegated responsibility from the Department of Health and Human Services.  That delegation has now come to an end, and the hospital is reticent to be involved without some formal authority.

9. There is a risk to the child’s welfare that, unless this treatment is continued and/or at least some form of assessment is made as to her need, she runs a very grave physical risk in the future. The child also has an intellectual disability and requires a teacher’s aide, but otherwise seems to be managing fairly well with the assistance of not only her uncle but also her grandparents. The treatment that is contemplated by the hospital is substantial and I could well understand why the hospital might be concerned about taking responsibility without somebody being in a position to exercise the parental responsibility as defined by the law.

10. In the circumstances, it seems that it is in the best interests of the child that such an order be made, having regard to all of those matters.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 9 October 2018.

Acting Associate:

Date:  17 October 2018