Arabatzis & Severino & Anor

[2013] FamCA 117

FAMILY COURT OF AUSTRALIA

ARABATZIS & SEVERINO AND ANOR [2013] FamCA 117

FAMILY LAW – CHILDREN – Application by the paternal Aunt in circumstances where the child’s parents are missing – Best interests.

Family Law Act 1975 (Cth)
APPLICANT:	Ms Arabatzis

FIRST RESPONDENT: Mr Severino

SECOND RESPONDENT: Ms Severino

INDEPENDENT CHILDREN’S LAWYER: Tim Mulvany

FILE NUMBER: MLC 6602 of 2012

DATE DELIVERED: 1 March 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 14 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Glass

SOLICITOR FOR THE APPLICANT: Victoria Legal Aid    

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: N/A

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Mulvany

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAYWER:

T J Mulvany & Co

IT IS ORDERED THAT

1. The Applicant Paternal Aunt, Ms Arabatzis, have parental responsibility for the child D born … April 2000.

2. The said child live with the Applicant Paternal Aunt.

3. The Initiating Application filed 23 July 2012 be otherwise dismissed and removed from the list of cases awaiting hearing.

4. That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, the particulars of the obligations that 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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Arabatzis & Severino and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6602 of 2012

Ms Arabatzis

Applicant

And

Mr Severino

Respondent

And

Ms Severino

Respondent

REASONS FOR JUDGMENT

1. This matter was first listed for hearing before me on 5 October 2012. On that date the Applicant Paternal Aunt, in her Initiating Application filed 23 July 2012, sought orders for sole parental responsibility for her nephew and that he live with her. In July 2008 the Applicant Aunt received a phone call from a person who said that he was at Melbourne Airport with her nephew. The caller did not identify himself nor did she meet or ever hear from him again. The Applicant Aunt and her husband then travelled by bus, train and taxi to Melbourne Airport. The child ran to them and immediately asked them if his father was with them. Although she said they looked, they could not locate the person the child said had accompanied him to Australia from Sri Lanka. The child has lived with his Aunt and her family since that day.

2. The child’s mother, who remained in Sri Lanka with her daughter, contacted the Aunt after her son’s arrival in Australia. She explained at that time that the child’s father had disappeared in 2008 and that she had not heard from him since. She said that she had sent the child to Australia as the authorities in Sri Lanka had threatened to take him away from her unless she revealed where her husband was hiding. She told the Aunt that although she was very distressed at the prospect of never seeing her son again, she said that she hoped his Aunt would be able to care for him and give him a proper childhood away from the violence and dangers to which he was exposed in Sri Lanka.

3. The Aunt says that thereafter the child received a call from his mother approximately once per fortnight and that whenever her family moved home in Australia she maintained the same telephone number so that the child’s mother would be able to contact him.

4. The Aunt says that the child’s mother called on 20 March 2010 but that neither she nor the child has had any further contact with the mother since that telephone call. The mother’s last known telephone number is no longer connected. The Aunt has attempted to locate the child’s mother and his sister making her own enquiries of friends who live in Sri Lanka and the Australian Red Cross. The Australian Red Cross sent a Tracing Enquiry to the International Committee of the Red Cross and on 21 July 2010 the ICRC reported that their two day search for the mother had been unsuccessful. The Australian Red Cross have now closed their file.

5. On 5 October 2012, on the basis that the applicant Aunt had had no contact with the father since early 2008 and with the mother since March 2010, I made orders dispensing with service of the Aunt’s Application upon the child’s father and mother. I am also satisfied that in the circumstances of this case I should dispense with the requirement that the parties attend family dispute resolution. It is clearly in these circumstances not practical to do so.

Parenting Orders

1. The Court may, subject to the presumption of equal shared parental responsibility, make such parenting orders as it thinks fit and proper in the circumstances (s65D of the Act). A parenting order may, as is sought by the Applicant in this case, deal with the allocation of parental responsibility, which includes the allocation of responsibility for making long-term decisions, and for determining with whom a child should live (ss 64B(2) and (3)).

2. Although the Aunt in her Initiating Application seeks an order for sole parental responsibility it was submitted on her behalf that I should make an order that she have parental responsibility rather than sole parental responsibility for the child. She is concerned that if the child’s parents are located she does not want to be seen to have taken parental responsibly away from them. Whether or not the child’s parents are likely to be located the order proposed by the Aunt will enable her to make long term decisions for the child in the meantime.

3. As is the case in all applications for parenting orders, the Court must have regard to the objects underlying the provisions of Part VII of the Family Law Act 1975 which are intended to advance the best interests of the child. They include ensuring that children have the benefit of the meaningful involvement of both of their parents in their lives, protecting the children from harm, ensuring that they receive adequate and proper parenting necessary for them to achieve their potential, and ensuring that their parents fulfil their duties and meet their responsibilities concerning the children’s care, welfare and development (s60B). The Court must also have regard to the principles underlying those objectives, which are set out in s 60B(2) of the Act.

The Best Interests of the Child

1. The paramount consideration when making a parenting order is the best interests of the child or children the subject of that order (s60CA). In determining what is in that child or children’s best interests, the Court must consider both the primary and additional considerations set out in s60CC(2) and (3) of the Act. The analysis of those statutory considerations of what is in the best interests of the particular child in the particular circumstances of the case must be made in a way that is consistent with the objectives and the principles underlying those objectives.  The primary considerations directly take up the first two of those objectives.

2. The Aunt and her two daughters lived with her brother, the child’s father and his family in Sri Lanka from 2007 until her departure for Australia in December 2007. The child has lived with and been cared for by the Aunt since his arrival in Australia in July 2008 almost five years ago. He is now nearly 13 years of age.

3. The Aunt, her husband and her two daughters live with the child in rented accommodation in Suburb N. The Aunt cares for her husband and is in receipt of a Carer’s Payment from Centrelink. She works part time to supplement her income. Her husband has suffered from severe anxiety and depression since 2002 and is in receipt of a Disability Support Pension. Although the Aunt deposes that his mental health has been stable for approximately 12 months she has, until now made the major decisions for the child as well as her own children. The Aunt’s eldest daughter is studying at university and her other daughter is a secondary student at Suburb N High School.

4. The child completed his primary education at Suburb N Primary School and now attends Suburb N High School. His Aunt deposes that although he is still haunted by his experiences in Sri Lanka and the separation from his parents he has flourished in Australia in her care and as a member of her family. He is now able to travel to and from school on his own. He is making good academic progress and is involved in extra curricular sporting activities.

5. Tragically in this case this child has been separated from his parents and it seems unlikely that they will have any involvement in this child’s life in the future. I am however satisfied that the Aunt in this case would promote their relationship with the child if they were to be located and will maintain contact with the child’s extended family to the extent that she is able to do so. I am also satisfied that in her care the child will have the opportunity to learn about and enjoy his Sri Lankan heritage.  

6. The applicant Aunt has demonstrated the capacity to physically care for the child but of even more importance in this case has demonstrated a thoughtful and caring attitude to her nephew’s emotional needs in what must have been very difficult circumstances. The child has a close and loving relationship with his Aunt and her family.

7. I am satisfied that in all of the circumstances of this case the orders sought by the applicant make proper provision for and are in the child’s best interests. One can only imagine what life may have held for this young boy if not for the love and care shown to him by his Aunt and her family.

8. Mr Mulvaney, the Independent Children’s Lawyer, supports the Aunt’s application. He also raised with me the possibility that the Aunt may in the future wish to consider an application for the child’s adoption. Whilst no such application is currently being considered, in the event that such an application or for that matter there are any other proceedings in this Court, I would hope that the Independent Children’s Lawyer would be reappointed to represent the child’s interests.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 1 March 2013

Associate: 

Date:  1 March 2013