ARMSTRONG & ARMSTRONG

[2016] FamCA 543

FAMILY COURT OF AUSTRALIA

ARMSTRONG & ARMSTRONG [2016] FamCA 543

FAMILY LAW – CHILDREN – Where the applicant step-father and respondent mother seek that orders be made by consent for equal shared parental responsibility of the child – Where the child was conceived as a result of a sexual assault perpetrated on the mother – Where there is no real possibility of the mother ascertaining the identity of the child’s biological father– Where the applicant has fulfilled the role of father to the child and the child perceives him as her father – Where the Court finds it is in the best interests of the child for the orders to be made.

Family Law Act 1975 (Cth)

APPLICANT: Mr Armstrong

RESPONDENT: Ms Armstrong

FILE NUMBER: SYC 1304 of 2016

DATE DELIVERED: 7 July 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 4 July 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Wood of Willis Bowring Solicitors

FOR THE RESPONDENT: Ms Armstrong in person

Orders made 4 July 2016

RECITALS

1. The Applicant Step-Father was born on … 1989 and is currently 26 years old and of good physical health.

2. The Respondent Mother was born on … 1987 and is currently 28 years old and of good health.

3. The parties commenced a relationship on or about 2011 and married on … 2014.

4. The parties have one child of the relationship, B (“B”) born … 2013 currently 3 years of age.  The Respondent Mother also has a previous child C (“C”) born … 2010 currently 6 years of age to an unknown Father to whom these proceedings relate.

5. The Applicant Step-Father also has one daughter from a previous relationship, D born … 2009, currently 6 years of age with whom he spends time.

6. As a result of the incident in April 2009, upon the Respondent Mother, which resulted in the conception of C, the Respondent Mother has, until her relationship with the Applicant Step-Father, raised C as a single parent.

7. The Applicant Step-Father and the Respondent Mother wish to enter into these Orders to legally provide for the Applicant Step-Father to have parental responsibility for his step daughter C.

BY CONSENT IT IS ORDERED:

1. That pursuant to section 62B of the Family Law Act 1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.

2. That pursuant to section 65DA(2) 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 are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.

3. That all outstanding applications are dismissed.

Parenting Orders

1. That the Applicant Step-Father and Respondent Mother have Equal Shared Parental Responsibility for C born on … 2010 (“C”), currently 5 years of age pending further order of the Court, for making all decisions in relation to the long-term issues to include:

   (a)Education (both current and future);

   (b)Religious and cultural upbringing;

   (c)Her health;

   (d)Any decisions with respect to changes to be made to her name; and

   (e)Any changes to her living arrangements that would make it significantly more difficult to spend time with either parent.

2. That each parent have sole parental responsibility for the day-to-day decisions in relation to C’s short term care, welfare and development whilst she is in that respective parents care.

3. That the child, C, live with the Applicant Step-Father and the Respondent Mother.

4. That pursuant to section 66M of the Family Law Act 1975 (Cth) the Applicant Step-Father has the legal duty to maintain the child, C as a step-parent of that child.

5. That the parties and the Court considers that, it is proper in the circumstances for the Applicant Step-Father, pursuant to section 66D(1) of the Family Law Act1975 (Cth) to have the legal duty of maintaining the child, C born … 2010.

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 Armstrong & Armstrong 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 SYDNEY

FILE NUMBER: SYC 1304  of 2016

Mr Armstrong

Applicant

And

Ms Armstrong

Respondent

REASONS FOR JUDGMENT

The proceedings

1. These proceedings concern parenting orders in relation to a little girl, C, who was born in 2010 and is presently six years of age.  The applicant is C’s stepfather, Mr Armstrong, and the respondent is her biological mother, Ms Armstrong.

2. In her affidavit of 30 May 2016, the mother deposed that C was conceived as a result of a sexual assault in 2009.  The mother deposed that she has no clear memory of the events of that night and no idea whatsoever of the identity of the perpetrator of the assault.  The mother deposed that, as a committed Catholic, she made a decision to proceed with the pregnancy.

3. On 7 March 2016 Mr and Ms Armstrong filed an Application for Consent Orders, the recitals and proposed orders being as follows:

   RECITALS:

   1.The Applicant Step-Father was born on … 1989 and is currently 26 years old and of good physical health.

   2.The Respondent Mother was born on … 1987 and is currently 28 years old and of good health.

   3.The parties commenced a relationship on or about 2011 and married on … 2014.

   4.The parties have one child of the relationship, [B] (“[B]”) born … 2013 currently 3 years of age.  The Respondent Mother also has a previous child [C] (“[C]”) born … 2010 currently 6 years of age to an unknown Father to whom these proceedings relate.

   5.The Applicant Step-Father also has one daughter from a previous relationship, [D] born … 2009, currently 6 years of age with whom he spends time.

   6.As a result of the incident in April 2009, upon the Respondent Mother, which resulted in the conception of [C], the Respondent Mother has, until her relationship with the Applicant Step-Father, raised [C] as a single parent.

   7.The Applicant Step-Father and the Respondent Mother wish to enter into these Orders to legally provide for the Applicant
   Step-Father to have parental responsibility for his step daughter [C].

   BY CONSENT IT IS ORDERED:

   1.That pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.

   2.That pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.

   3.That all outstanding applications are dismissed.

   Parenting Orders

   1.That the Applicant Step-Father and Respondent Mother have Equal Shared Parental Responsibility for [C] born on … 2010 (“[C]”), currently 5 years of age pending further order of the Court, for making all decisions in relation to the long-term issues to include:

   a.         education (both current and future)

   b.         religious and cultural upbringing

   c.her health

   d.any decisions with respect to changes to be made to her name and

   e.any changes to her living arrangements that would make it significantly more difficult to spend time with either parent.

   2.That each parent have sole parental responsibility for the
   day-to-day decisions in relation to [C’s] short term care, welfare and development whilst she is in that respective parents care.

   3.That the child, [C], live with the Applicant Step-Father and the Respondent Mother.

   4.That pursuant to S66M of the Family Law Act the Applicant
   Step-Father has the legal duty to maintain the child, [C] as a step-parent of that child.

   5.That the parties and the Court considers that, it is proper in the circumstances for the Applicant Step-Father, pursuant to Section 66D(1) of the Family Law Act to have the legal duty of maintaining the child, C born … 2010.

4. On 31 May 2016 a Registrar declined to the make the proposed orders and placed the proceedings in a Judicial Duty List on 4 July 2016.  On that date Mr Armstrong was represented by a solicitor, who proffered to the Court his apologies for an absence due to illness.  Mrs Armstrong appeared in person.

Background

1. The mother was born in 1987 and is currently 28 years of age.  Her husband, Mr Armstrong, was born in 1989 and is presently 26 years of age.  Mr and Ms Armstrong began their relationship in 2011 and married in 2014.  They have a daughter, B, who was born in 2013 and is aged three years.

2. The mother swore an affidavit on 30 May 2016, the contents of which I will not repeat but incorporate into these reasons.  It is sufficient that I find that the mother was a victim of a sexual assault on approximately 11 April 2009, by a perpetrator whose identity has been unknown to her at all times.  I find, on the balance of probabilities, that she was drugged prior to this assault during an evening out in a nightclub with two female friends.  I accept that the mother has carefully considered options which may be open to her to establish the identity of the perpetrator and concluded that there is no real possibility that she could do so.

3. I accept, without hesitation, that Mr Armstrong has fulfilled the role of father to C.  I accept that he is perceived to be her father by friends and family of the mother and himself.

4. The mother deposed that she told Mr Armstrong of the circumstances of C’s conception approximately four to five months into their relationship.  It is readily apparent that they have established a strong, stable and happy family unit.  The mother deposed that, upon her marriage to Mr Armstrong, she took appropriate legal steps to cause C to assume his surname.

Consideration and conclusion

1. I accept the mother’s evidence that C’s derives a sense of security in the family unit of herself and Mr Armstrong.  I accept entirely that C perceives Mr Armstrong as her father and that he regards her as his daughter.

2. In these circumstances, and for these reasons, I am satisfied that it is in C’s best interests that Mr Armstrong have equal shared parental responsibility for her and that, otherwise, it is appropriate that there be orders in terms of the proposal in the document signed by Mr and Mrs Armstrong dated 3 March 2016.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 7 July 2016.

Associate: 

Date:  7 July 2016