Aram & Ingeborg

[2024] FedCFamC1F 412

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Aram & Ingeborg [2024] FedCFamC1F 412

File number(s):

BRC 3631 of 2024

Judgment of:

BRASCH J

Date of judgment:

31 May 2024

Catchwords:

FAMILY LAW – CHILDREN – CRITICAL INCIDENT LIST– Where children’s mother passed away – Where children’s father is absent from children’s lives – Where father has not engaged in proceedings – Where major long term decisions were required – Where the maternal aunt sought parental responsibility for the children –Where the Department holds no concerns if children live with the applicant – Final orders made  

Legislation:

Australian Passports Act 2005 (Cth) s 11

Family Law Act 1975 (Cth) Part VII, ss 60B, 60CA, 60CC, 60CC(1), 60CC(2), 65K

United Nations Convention on the Rights of the Child  

Division:

Division 1 First Instance

Number of paragraphs:

24

Date of hearing:

31 May 2024

Place:

Brisbane

Solicitor for the Applicant:

McInnes Wilson Lawyers

Solicitor for the Respondent:

Litigant in person (did not participate)

ORDERS

BRC 3631 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS ARAM

Applicant

AND:

MR INGEBORG

Respondent

ORDER MADE BY:	BRASCH J
DATE OF ORDER:	31 MAY 2024, AMENDED 19 JUNE 2024

UPON APPLICATION MADE TO THE COURT AND UPON HEARING Ms Tanner, as solicitor for the Applicant.

ON A FINAL BASIS, THE COURT ORDERS:

Live with

1.That the children X born 2007 and Y born 2011 (“the children”) live with the applicant Ms Aram (“the applicant”).

Parental responsibility

2.That parental responsibility be conferred on the applicant (to the exclusion of the respondent) for all major long-term issues related to the children, including:

(a)The children’s education (both current and future);

(b)The children’s religious and cultural upbringing;

(c)The children’s health;

(d)Requesting that Medicare issue a cards for the children and claiming Medicare benefits for the children;

(e)Dealing with the Department of Foreign Affairs and Trade, Passport offices or Visa providers; and

(f)Requesting a copy of the children’s birth certificate; and

(g)Dealing with NDIS and making any application required.

3.That the applicant have responsibility for all day-to-day decisions with respect to the children.

Service providers

4.That pursuant to s 121 s 114Q of the Family Law Act 1975, the applicant be granted leave to publish a copy of these Orders to all service providers for the children, including but not limited to the children’s school, treating medical practitioners, any other doctors, therapists, counsellors, government departments, health insurer, passport and visa providers, or for securing any financial support for the children.

5.That these Orders are authority for the applicant to schedule and consent to treatment, therapy, schooling, programs, services and the like for the children, and to give and receive such information from service providers as a parent would ordinarily receive.

6.That this Order authorises any of the children’s treating medical or other allied health practitioners to release the children’s medical or health information to the applicant and to discuss the children’s treatment with the applicant.

7.That the applicant is hereby authorised to obtain from the children’s school all notices, letters, school reports and invitations and to attend parent/teacher interviews or other activities to which the applicant is invited to.

Passports and travel

8.That pursuant to s 11(b)(i) of the Australian Passports Act 2005 (Cth), the children are permitted to have an Australian passport or travel document provided the application for that document is made by the applicant, who may sign any declaration on the application in the form approved by the relevant Minister.

9.That the applicant be permitted to leave the Commonwealth of Australia with the children.

10.That the applicant be permitted to travel overseas with the children and each of them notwithstanding that the consent of the respondent for the children has not been first obtained.

11.That the requirement that the respondents consent to the issue of a passport or other travel document or sign any such application for the children is dispensed with.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

BRASCH J:

1. The applicant in these proceedings is the maternal aunt of two children, X, born 2007, who is obviously 16, and Y, born 2011, who is currently 13 years old. The applicant is a non-parent caring for the children.  She and the children now live in New South Wales.  There is no parent available to care for the children, and that is why the matter came before me on the Critical Incident List.

2. The children's mother has passed away.  The father has been charged an offence and has not participated in these proceedings, even though he has been given the opportunity to do so.

3. The children were residing with the mother and father in Queensland, but have not resided there since early 2024.  Child Safety and Disability Services in Queensland permitted the children to be removed from that location to the maternal aunt. 

4. The children were attending a state school in Queensland.  One of the reasons the matter came before me on the Critical Incident List was for the applicant maternal aunt to have parental responsibility so she could deal with Departments of Education, and, deal with any doctors she needed to get mental health plans or otherwise therapeutic support for the children.

5. The children have relocated to New South Wales and are now enrolled in school.  The children have the benefit of the applicant's three children who are in year six, year four, and the youngest is in childcare. 

6. In circumstances where these two children have lost their mother and, in reality, lost their father, it must give some comfort to these two children to have a sibship-like relationship with the applicant's children.  It also gives me some comfort that these two children are attending the same school as the older two children.  That too must give them some comfort and consistency.

7. Pursuant to my orders of 22 March 2024, I required the applicant's solicitor to file an affidavit about their efforts to bring the matter to the respondent father's attention.  I say the respondent father because he is a necessary party under the rules. 

8. I am satisfied that the applicant's solicitors have taken every step possible to bring the matter to the father's attention, and they have followed up as well.  It is clear to me that the father has taken no steps to participate in these proceedings.  He has a copy of the order that I made and would therefore be well aware that if he took no steps, I would consider making final orders today.

9. I have received updates from the Queensland Department of Child Safety, Seniors and Disability Services, and the Department of Communities and Justice in New South Wales with respect to the children and the applicant.  Neither department have had any contact with the family since in Queensland, and the investigation assessment was finalised upon the making of my interim orders of 22 March 2024.  Similarly, the Department of Communities and Justice [NSW] closed their case in early 2024, and have nothing to report based on the children living with the maternal aunt.

   Legal Principles – Part VII of the Family Law Act 1975 (Cth) (“the Act”)

10. The new s 60B of the Act sets out the objects of Part VII of the Act, and that is to ensure the best interests of children are met, including ensuring their safety, and to give effect to the Convention on the Rights of the Child.

11. Section 60CA tells me what has been the law since the Family Law Act came into force in 1975 - that the child's best interests are a paramount consideration in making a parenting order.

12. It is also useful to mention s 65K, which (although applying if there is a parenting order in place) reveals the legislature’s intent that a surviving parent cannot require a child to live with him or her. But the respondent has made no contact.

    (a)       what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm) of: (i) the child; and (ii) each person who has care of the child (whether or not a person has parental responsibility for the child)

13. The new s 60CC factors put a very square focus on the child and the child's safety, and what arrangements would promote the child's safety. Subsection 1(a) says I must consider the matters set out in subsection 2. They include what arrangements would promote the safety of the children from being exposed to, for example, family violence, abuse, neglect, or other harm.

14. I am satisfied that the children being with the maternal aunt is a safe arrangement for them and I refer to the two department reports in that regard. 

    (b)       any views expressed by the child

15. This is not a matter - when looking at subsection 2(b) – about views.  The children, as is clear to me, have maternal family with whom they are staying. The children are also of a sufficient age and maturity that if they were unhappy with those [arrangements], I am satisfied they would be able to make that known.

16. I am also told that the paternal family live in Country B.  I am satisfied that the orders meet the development, psychological, emotional and cultural needs of the children, and I understand the children's rich cultural heritage, which I have no doubt the maternal aunt will tend to. 

    (c)       the developmental, psychological, emotional and cultural needs of the child

17. I am also satisfied that [the applicant] is tending appropriately to the children's developmental, psychological and emotional needs for the things she told me in her affidavit filed 20 March 2024; she was acutely aware the children would not be travelling well.

    (d)      the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs

18. I am satisfied in terms of subsection 2(d) that the maternal aunt has the capacity to have parental responsibility and provide for the children's development, psychological and emotional needs.

    (e)       the benefit of the child of being able to have a relationship with the child’s parents and other people who are significant to the child, where it is safe to do so

19. Subsection 2(e) does not, sadly, apply [to the parents].  It is about the benefit of a child being able to have a relationship with the child's parent; tragically, the mother is no longer available to the children and the father is in gaol. But, it [the subsection] goes on to other people who are significant to them.  I am comforted to read that the maternal aunt and the maternal family will envelop these children in the love, support and nurture they need.

    (f)       anything else that is relevant to the particular circumstances of the child

20. Subsection 2(f) is anything else that is relevant to the particular circumstances of the child, or in this case, the children. A point of the Critical Incident List is that the matter be determined expeditiously where it is in the children's best interests to do so.

21. This is a matter where I am satisfied that the maternal aunt will do all she can to support these children through what has been a tumultuous period of time.  The last thing she needs is to be brought back before the Court in “traditional” parenting proceedings, where she would appear a number of times.

22. I am satisfied that under subsection 2(f), one thing that will serve the children's best interests is for the maternal aunt to have final orders today.  She has to grieve the loss of her sister, as well as being carer for these two children. 

23. I also looked at the matters in subsection 2(a) and the history of family violence.  That is something that is going to play out in another Court for the father, but I am satisfied, particularly by reference to the two department reports, that the children are safe and sound in the maternal aunt's care.

24. They are my reasons for the orders that I make.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Brasch.

Associate:

Dated:       19 June 2024