Aitcheson-Hamilton and Ors and Tennison and Anor

[2015] FamCA 319

FAMILY COURT OF AUSTRALIA

AITCHESON-HAMILTON & ORS & TENNISON & ANOR [2015] FamCA 319

FAMILY LAW – CHILDREN – Orders sought to be made by consent in circumstances where the biological parents of the children are deceased – Where it is proposed that the children reside with friends of the mother – Where the Court is satisfied that the proposed consent orders are in the best interests of the children – Orders made.

Family Law Act 1975 (Cth)

FIRST APPLICANT: Ms Aitcheson-Hamilton

SECOND APPLICANT: Ms King

THIRD APPLICANT: Ms Collins

FIRST RESPONDENT: Mr Tennison

SECOND RESPONDENT: Ms Tennison

FILE NUMBER: BRC 9770 of 2014

DATE DELIVERED: 24 April 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 24 April 2015

REPRESENTATION

SOLICITOR FOR THE FIRST, SECOND

AND THIRD APPLICANTS:

Cooper Grace Ward

SOLICITOR FOR THE FIRST AND

SECOND RESPONDENTS:

HopgoodGanim

Orders

IT IS ORDERED BY CONSENT:

Parental Responsibility

1. That the first, second and third applicants (“the applicants”) and the first and second respondents (“the respondents”) shall have equal shared parental responsibility for the children, B born … 2002 and C born … 2004 (“the children”) including but not limited to:

   (a)schooling of the children including decisions about the type of schooling, and the schools at which the children shall attend;

   (b)hospitalisation, surgery, medical, dental, optometry, counselling or any other health issue concerning the children;

   (c)decisions about religion and religious instruction of and observance by the children; and

   (d)decisions about the children playing or being involved in any sporting, cultural, artistic or community activity including competition, training or meetings.

2. That the applicants and the respondents, in exercising their equal shared parental responsibility in respect of all major long term issues (as set out above) in respect of each of the children, shall:

(a)    inform the other party in writing of the decision that the party wishes to be made and shall provide their reasons for why the decision should be decided in the manner they propose; and

(b)seek the other party’s written response in relation thereto;

(c)the other party receiving such a request shall respond to the request within 7 days setting out whether they agree to the decision being made, and if they disagree or propose that a different decision be made, set out that decision with their reasons as to why their proposal shall be made;

(d)the party originally proposing the decision shall consider the response and then advise if they agree or disagree and if they disagree; then

(e)the parties shall attend with Ms D or some equivalent trained facilitator if Ms D is not available with both parties being equally responsible for meeting her costs, if agreement cannot be reached as to the abovementioned (a) to (d).

Living arrangements

1. That the children live with the respondents and spend time with the applicants (or any of them as the case may be) at all such times as may be agreed between the parties.

2. That the applicants be at liberty to spend time with the children during holidays at all times as may be agreed between the parties but on the basis that:

(a)     such holiday time take place only during Queensland school holiday periods;

(b)upon the giving of 3 months’ notice in writing to the respondents in relation to the proposed holiday time; and

(c)for the holiday time to be up to four weeks each year.

1. Notwithstanding paragraphs 3 and 4, in the event that one of the applicants is very ill, the children shall be able to travel to visit them (irrespective of whether this requires a domestic or international flight) during school days or non-school days.

Telephone/Email/Skype communication

1. The children shall be entitled to communicate with the applicants via email, telephone and Skype at all reasonable times.

2. The respondents shall ensure that the children are:

(a)     afforded privacy for any telephone or Skype sessions with the applicants;

(b)made available for telephone calls or Skype sessions when arranged; and

(c)afforded access to a working telephone, mobile phone or computer for the purpose of communication with the applicants. 

Specific issues

1. Each party shall notify the other as soon as practicable of any accident, emergency, serious illness or significant injury involving either or both of the children.

2. In the event that either or both of the children requires medical or hospital treatment, the party then caring for the children will immediately inform the other party via phone, SMS message or email (in this order of priority).

3. In the event that an urgent decision must be made by either party and the other party is not able to be contacted after all reasonable attempts have been made, or fails to respond to reasonable requests for information, the party then caring for the children will make that decision and inform the other party by the most immediate means possible.

4. This order hereby authorises:

(a)    the children’s school and/or day care provider to provide each party with copies of all school reports and other reports on school progress and behavioural issues and all school circulars, notices, details of all functions, parent-teacher nights and other activities to which the parties are invited and school photograph order forms; and

(b)the children’s general medical practitioner or any other professional associated with the health, welfare, care and development of the children to communicate with each party and provide them with all such information and documents they may request from time to time regarding the children’s medical health and general welfare, including any diagnosis, proposed treatment or prognosis for the child.

1. Each party keep the other party informed at all other times of all professionals consulted in relation to the welfare, care, health, development and education of the children at all times including but not limited to the particulars of the name, address and contact details of that professional.

2. Each party hereby irrevocably authorises any person or institution including but not limited to any doctor, carer, teacher, hospital, childcare institution, school and any social, sporting or recreational organisation, to release all and any information, (verbal or in writing) reasonably requested by the other in relation to the children.

3. The respondents shall not relocate the children to any location which would require the children to change schools or result in travel of more than 1 hour each way to the children’s respective schools without the prior written consent of the applicants or an Order of the Court.

4. The respondents shall notify the applicants of the children’s residential address, home telephone number, mobile telephone number and email address and shall notify the other in writing of any change to the same within forty-eight (48) hours of any such change.

Overseas travel

1. That both parties do all necessary acts and sign all necessary documents so as to cause:

(a)    a passport to issue for each of the children and to be held by the applicant, Ms Collins; and

(b)an updated passport to issue for each of the children at any time that a current passport expires or is due to expire.

1. That pursuant to section 65Z(2) of the Family Law Act 1975 (Cth) the applicants and the respondents shall be at liberty to remove the children from the Commonwealth of Australia for the purpose of overseas travel and to that end, the party seeking for the children to travel overseas shall provide to the other party, no later than 28 days prior to the date of intended travel:

(a)    copies of or confirmation of return airline tickets for the children;

(b)a detailed itinerary of where the children will stay and travel to for the duration of their time in that party’s care; and

(c)contact details for the children while they are away.

1. The parties will not travel with the children to a destination which is subject to one of the following categories of risk travel advices from the Commonwealth Department of Foreign Affairs & Travel:

(a)    ‘reconsider your need to travel’; and

(b)‘do not travel’.

1. The parties are restrained from taking the children to any country which is not a signatory to the Hague Convention on the civil aspects of international child abduction without the prior written consent of the other party.

Miscellaneous

1. In the event that either party fails to sign a document in accordance with the above Orders, a Registrar of the Court shall be empowered to execute such document on the defaulting party’s behalf pursuant to s 106A of the Family Law Act 1975.

IT IS NOTED:

The parties agree that:

A.The best interests of the children are a primary focus in all of their lives.   They each accept the responsibilities of raising the children and do not wish to abrogate this responsibility to others.

B.They will notify and consult each other before any major decision affecting either of the children is made.  Each party will respond promptly and be motivated solely by the welfare of the children.

C.There may be stresses on each of the parties raising children and particularly as they raise the children from different households and that misunderstandings may be common.  Accordingly they will attempt to communicate in an open way, clearly, regularly and respectfully.  They will also encourage the children to have open and respectful communications with the other.

D.That the best decisions are ones made not in an adversarial context but through constructive dialogue and from time to time the parties may seek the assistance of Ms D or another trained facilitator in the best interests of the children.

E.The children shall be entitled to spend time with the third applicant, who lives in Australia, on weekends when she is in Brisbane on the giving of reasonable notice.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Aitcheson-Hamilton and Ors & Tennison and Anor 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 9770 of 2014

Ms Aitcheson-Hamilton and Ms King and Ms Collins

First, Second and Third Applicants

And

Mr Tennison and Ms Tennison

First and Second Respondents

EX TEMPORE REASONS FOR JUDGMENT

1. These parenting proceedings concern two children, namely, B born in 2002 who is now 13 years of age, and C born in 2004 who is now 11 years of age.  The applicants to the proceedings are respectively, the children’s maternal grandmother living in Country E; their maternal aunt living in Country E; and a close friend of the mother who is present in Court today.  The respondents to the proceedings are not related to the children but are long-term friends of their mother. 

2. There are tragic circumstances attending this case in that the children’s biological father passed away in 2006.  Given the ages and dates of birth of these children, obviously they did not have much of an opportunity to know their father.  That tragedy was compounded when their mother passed away in 2012. 

3. The father’s immediate family reside in Adelaide, but also it is the fact that the paternal grandfather passed away last year.  The father’s mother is currently 83 years of age and the father’s brother is currently 54 years of age. 

4. The applicants are the executors under the mother’s will.  A copy of the mother’s will and codicil are contained as Annexures A and B of the applicants’ affidavit filed 7 November 2014.  Pursuant to the codicil, the applicants are appointed to act as guardians of the children and be responsible for their day-to-day and long-term care, welfare and development during their minority. 

5. The applicants depose that there are sufficient assets in the mother’s estate left entirely to the children in equal shares to provide for the children’s expenses now and as they grow older. 

6. It is plain on the evidence before me that it was the mother’s wish for the children to continue being raised in their hometown of Brisbane, and she had made numerous inquiries of friends and family to determine if any of them were prepared to care for the children in the event of her death. 

7. The respondents were prepared to care for the children on a permanent basis, and since the mother’s tragic death, the children have lived with and been cared for by the respondents in what started as a trial arrangement.  What is now clear is that all parties are concerned are satisfied that this arrangement is working well and seek to have the arrangement formalised.

8. They are thus all now joined in seeking the orders that are sought to be made by the Court.  

9. The Court has the advantage of a report that was prepared by Ms D in 2012 when the arrangement had been on foot, then, a relatively brief period.  That report makes it clear that there were good signs so far as the arrangement was concerned. 

10. As tragic as it is for these two girls that they have lost their parents at such an early age for them, commensurately it is clear from the report referred to that they are, nevertheless, very loved and well cared for children.  Even at that stage, the assessment was made that all parties concerned with the children had their best interests in mind.  The decision of the legal guardians to have the children reside with their current family is expressed to be meeting a number of needs expressed by the mother as to her future wishes for her children. 

11. As I have earlier referred to, the mother had indicated that she had wanted the children to continue to reside in Australia and maintain their childhood and family friendships, sports and schooling.  Even at that stage, it was plain that the respondents had shown genuine affection and care towards the girls and had embraced them as they do their own children, whilst also having embraced their extended network of family and friends.

12. In the more recent report provided by the expert Ms F, it is, in a sense, more of the same but amplified.  She assessed, and I accept her assessment, that all the adults and parties to these proceedings presented as extremely child-focused and wanting to ensure the very best for these girls.  Ms F was particularly impressed with the interactions between the adult parties and the degree of respect and warmth they each had for each other, and the feature that the children felt included as part of a larger family group.

13. Ms F expressed the opinion that the adults need to be commended and congratulated for the efforts they have put into building and sustaining such remarkable relationships with each other and with the girls during a very emotional and testing period.  For what it is worth, the Court offers that commendation and congratulations to the adults involved.

14. Ms F also expressed the opinion, which I accept, that the parenting arrangements proposed and agreed to by the parties are child-focused and provide a realistic outline and framework from which to work.  She noted that the arrangements reflect the important role that each adult plays and seeks to ensure that relationships are maintained and enhanced. 

15. Within the submissions of each of the parties are references to s 60CC of the Family Law Act 1975 (Cth) which is the relevant provision that the Court applies in determining the best interests of children. Some of those factors do not apply on one level in this case because many of them are directed to parents. For example as is pointed out in the applicants’ submissions, s 60CC(2) refers to a primary consideration of the benefit of the child of having a meaningful relationship with both of the child’s parents, cannot apply in the circumstances of this case.

16. That noted, under s 60CC the Court can take into account any other fact or circumstance that is relevant. As it seems to me, when that is read with the benefit of the child having a meaningful relationship with both of the child’s parents, the current arrangements preserve to the extent that they can in the tragic circumstances of this case, the connection of the children with their identity framed as it is from their father’s side of the family and from their mother’s side.

17. There is clear evidence that in their current household there is regular reference to their parents and obviously, the respondents knew the mother well and are able to relay to the children their knowledge of their mother.  From the children’s perspective, they know that their current living circumstances are consistent with the wishes of their mother for their future.

18. It is clear on the current report from Ms F that the orders proposed meet the views expressed by the children as recorded by Ms F in her report.  These children have had much to deal with in terms of the emotional response to the loss of their parents and, in particular, the loss of their mother.  It is clear on the evidence before me that that has been and is being addressed in the happy circumstances they find themselves in that have existed since 2012 in their living arrangements, and in the happy circumstances that exists, in that they have the love and support of the parties and each of them to these proceedings.

19. On any assessment of the relevant s 60CC factors, it is clear to me, and I am comfortably satisfied, that the orders that have been agreed to by these parties are in the best interests of these two girls.

20. They are thriving in their current environment and it has stood the test of time since 2012 and it will, as it seems to me on all of the evidence before me, optimise the children fulfilling their potential.  They are both doing well at school and on the reports, at least on my reading of the reports, present as two delightful girls.

21. I am therefore satisfied that the orders proposed are in the best interests of these children and I make orders accordingly in terms of the draft orders proposed by all parties. 

22. Again, I express on behalf of the Court, for what it is worth, my commendation and congratulations to all the parties and I am comfortably satisfied that the future needs of B and C will be well met by these commendable adults in their lives.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 24 April 2015.

Associate:

Date:  24 April 2015