Axton
[2023] FedCFamC1F 70
Federal Circuit and Family Court of Australia
(DIVISION 1)
Axton [2023] FedCFamC1F 70
File number: PAC 6493 of 2022 Judgment of: BRASCH J Date of judgment: 16 February 2023 Catchwords: FAMILY LAW – CHILDREN – CRITICAL INCIDENT LIST – Where both of the children’s parents have passed away – Where major long term decisions are required on an urgent basis - Where the applicants seek parental responsibility for the children – Where interim orders had been made for parental responsibility to allow the applicants to access service providers for the children - Where other family members support final orders being made in the applicants’ favour - Final orders made Legislation: Family Law Act1975 (Cth) Part VII ss 60CC(2)(a), 60CC(2)(b), 60CC(3), 60CC(3)(b)(ii), 60CC(3)(d)(ii), 60CC(3)(f)(ii), 60CC(3)(l), 60CC(3)(m) Division: Division 1 First Instance Number of paragraphs: 31 Date of hearing: 16 February 2023 Place: Sydney (by web conference) Solicitor for the Applicants: Coutts Solicitors & Conveyancers ORDERS
PAC 6493 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS AXTON
First Applicant
MS BLANK
Second Applicant
order made by:
BRASCH J
DATE OF ORDER:
16 FEBRUARY 2023
THE COURT ORDERS:
1.That the children Y born 2006 and X born 2005 live with the first applicant Ms Axton and the second applicant Ms Blank.
2.That parental responsibility be allocated to the first and second applicants, for all major long term decisions 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 card/s 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;
(f)Requesting a copy of each or both of the children’s birth certificates;
(g)Dealing with NDIS and making any applications required; and
(h)Dealing with C Insurance to organise the children to be covered by either or both of the applicants’ private health insurance.
3.That the first and second applicants have responsibility for all day-to-day decisions with respect to the children.
4.That pursuant to s 121 of the Family Law Act 1975 (Cth), the first and second applicants 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 first and second applicants 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.In the event any wording in this Order constrains or otherwise fetters the applicants’ ability to deal with service providers for the children, they have liberty to approach chambers by email (with an affidavit setting out the problem) via (…@...) under r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) seeking the relevant amendment/s.
THE COURT NOTES:
A.That pursuant to s 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 “Parenting Orders – obligations, consequences and who can help” and these particulars are included in these Orders.
B.The Court requested an officer from the Department of Communities and Justice to attend today but upon receiving an update that no further reports have been made, their attendance in Court was excused.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BRASCH J:
Ms Axton and Ms Blank are the applicants in this matter. They are the maternal aunts of the children, Y, who was born in 2006 and X born in 2005. Y is, accordingly, 16 years old and X is 17 years old.
The applicants filed their Initiating Application for parenting orders on 25 November 2022. They asked to be included in the Critical Incident List. That arises out of the tragic circumstances where Y and X’s biological mother, Ms B, died in early 2022. Y and X’s biological father, Mr E, died in mid-2022. I have been provided with copies of both of their death certificates.
The applicants made an application under the Critical Incident List to secure orders for parental responsibility so they could urgently access supports for the children, and for the security of an order for Y and X to live with them permanently.
Y and X came into the applicants’ care upon their mother’s death in 2022. Prior to her death, the children lived with the mother, the now late maternal grandmother and the maternal aunt, Ms Axton (an applicant herein) in the same household. Y and X have lived with the applicants since then without interruption. That is, obviously, more than a year.
The matter had its first return before me on 12 January 2023. On that day, I received a report from Department of Communities and Justice (“the Department”), of which I will say more later. I directed the applicants to bring this matter to the attention of Mr F and Mr D, who are respectively the paternal grandfather and paternal uncle. They were invited to join the proceedings if they so elected. I indicated at that January return that at the next return (being today), if I was satisfied the matter had been brought to their attention and they indicated they not want to be involved, and, if the Department had no further reports about the children or applicants, then, I would consider making final orders. Based on the material that is before me and the submissions made I am content to make final orders today.
Material
The first and second applicants relied upon the following:
·Initiating Application filed on 25 November 2022;
·Genuine Steps Certificate filed on 25 November 2022;
·Notice of Child Abuse, Family Violence or Risk filed on 25 November 2022;
·Parenting Questionnaire filed on 25 November 2022;
·Affidavit of Ms Axton filed on 25 November 2022;
·Affidavit of Ms Blank filed on 25 November 2022;
·Affidavit – Non-Filing of Family Dispute Resolution Certificate filed on 25 November 2022; and
·Affidavit of Ms Axton filed 13 February 2023.
The children’s circumstances
On the evidence before me, I am satisfied that:
(a)The mother was the primary carer of the children prior to her death, and the children had not spent any time with the father for approximately three or four years;
(b)The mother and father had consent orders dated 27 January 2010 that the children would have supervised time with the father for two hours each Saturday and Sunday. That seemed to peter out over time;
(c)The maternal aunts have been the primary caretakers of the children since their mother’s death;
(d)The maternal aunts moved in together to live as a family with the children in the same household. They both work for remuneration outside the house, but are able to arrange their work so at least one of the applicants is always with the children;
(e)I am told, and have no reason to doubt, the children share a close and loving bond with the maternal aunts and have lived in the same household. They have a meaningful relationship with Ms Axton’s older children, being X and Y’s cousins;
(f)The maternal aunts commenced family law negotiations with the children’s biological father, Mr E for the maternal aunts to share parental responsibility and for the children to live with the maternal aunts. The proposed Consent orders were attached to the applicants’ initial affidavits, but are unsigned;
(g)I am advised, and accept, that the parties (and when I say parties I mean the children’s father and the maternal aunts) reached an agreement by consent, however did not have the opportunity to sign the Consent Orders before the father passed away in 2022;
X suffers from Attention Deficit Hyperactivity Disorder (ADHD) and Y has been diagnosed with Autism Spectrum Disorder (Autism). X will require ongoing medical support with his psychiatrist, namely Dr G at J Health Service to receive medication to manage his condition.
Y will require ongoing educational support with the special education unit at H School. Y, quite understandably, suffers from mental health issues, specifically depression as a result of losing both his parents. I am told and have no reason to doubt, Y will require ongoing medical treatment with the assistance of his psychologist, and assistance from his psychiatrist.
The Critical Incident List requires there be some urgency with respect to major long-term decisions that are required. The applicants deposed, and I accept, that they are seeking parental responsibility orders so they may make appropriate arrangements for X and Y’s schooling, health care, housing, welfare and wellbeing, and – perhaps the most urgent factors – a further application required for NDIS funding for Y so that he can receive funding to access health and support services and assistance by NDIS to gain work experience and/or employment opportunities in the future. It is not lost on me that the age of these children really makes them young men, nevertheless parental responsibility orders are required.
In order to apply for this funding, the maternal aunts require copies of the children’s medical and specialist reports from the children’s treating psychologists and psychiatrists. Without parental responsibility orders, they have been unable to obtain same. The maternal aunts further require access to the children’s My Gov accounts for copies of the children’s COVID‑19 vaccination certificates, immunisation records and other medical records. Again, they cannot access this as non-parents without parental responsibility orders.
Orders were also sought to deal with the mother’s superannuation fund in which the children are beneficiaries for her superannuation entitlements. They wish to make a Death Benefit Claim on behalf of the children. I do not have power to do so. These are not property proceedings – and even if they were, I am still not convinced I would have power to make orders of that kind.
The applicants sought orders so the maternal aunt, Ms Axton, could add the children to her existing private health insurance with C Insurance. Whilst I cannot order C Insurance to do anything, I will however make an order that they have authority to deal with C Insurance with respect to the children.
For that January first return, I received reports about the children and applicants from the Department. I read the relevant parts of that into the record. The nett effect was Department had no concerns with the boys living in the applicants’ household and had no concerns about the applicants.
I requested an officer from the Department of Communities and Justice to advise the Court of their involvement with the children and applicants since 10 January 2023. The Department advised this week that no further reports have been made and, on the face of what they told me, I excused the officers from attending today.
In circumstances where I have no natural contradictor, the Department’s report gives me considerable comfort.
Pursuant to my orders of 12 January 2023, the paternal grandfather and paternal uncle were notified of these proceedings.
In the affidavit filed 13 February 2023, the applicants annex letters sent to those wider paternal family members about these proceedings, and included all the material that had been filed.
They annexed two responses. Both Mr F and Mr D signed an acknowledgment that:
1.I acknowledge receipt of the court documents filed by the Applicant’s, [Ms Axton] and [Ms Blank] on 25 November 2022, including:
a. Initiating Application filed on 25 November 2022;
b. Genuine Steps Certificate filed on 25 November 2022;
c.Notice of Child Abuse, Family Violence or Risk filed on 25 November 2022;
d. Parenting Questionnaire filed on 25 November 2022;
e. Affidavit of [Ms Axton] filed on 25 November 2022;
f. Affidavit of [Ms Blank] filed on 25 November 2022; and
g.Affidavit – Non-Filing of Family Dispute Resolution Certificate filed on 25 November 2022.
2. I do not intend on participating in these proceedings.
3. I agree with the proposed orders sought by the Applicants.
(As per original)
(Annexure D to the Affidavit of [Ms Axton] filed 13 February 2023, p.17)
Also attached to the affidavit was an email from Ms K, which stated:
[Mr F] wishes to rebuild a relationship with the boys and arrange a suitable time for him to ring them on a regular basis and the boys to know that they can call him any time.
(Annexure D to the Affidavit of [Ms Axton] filed 13 February 2023, p.16)
I would encourage that to occur. It is important the children have links to their paternal identities.
Legal principles
I now turn to the best interests of X and Y. Part VII of the Family Law Act1975 (Cth) (“the Act”) tells me that the paramount consideration in an application such as this is X and Y’s best interests. Section 60B of the Act sets out the objects of Part VII and the principles underlying it. Much of that refers to, and sadly, “parents”, but X and Y’s parents are no longer with us. The primary considerations in s 60CC(2)(a) directs my attention to ensuring X and Y have a meaningful relationship with both of his parents, which sadly again cannot occur.
Section 60CC(2)(b) refers to protecting children from physical or psychological harm and from being subject to or exposed to abuse, neglect for family violence. I have referred to the Department’s report in relation to the applicants and I have no concerns that they pose any kind of threat, risk or harm as referred to in that subsection of the Act. Indeed, to the contrary, X and Y are very fortunate to have the applicants step in, in the way they have, to their lives.
I then turn to the additional considerations under s 60CC(3), many of which are again irrelevant because they refer to parents. Therefore, many of the additional considerations in s 60CC(3) do not arise.
However, I have turned my mind to the nature of children’s relationships with other persons, particularly other relatives; that is in s 60CC(3)(b)(ii). Wider paternal family is supportive of the orders sought; I have already referred to that. It is important for the children that they have a connection with their maternal identities, as they will through the applicants, but also, where they can, their paternal identities.
Section 60CC(3)(d)(ii) concerns the likely effect of any change in the children’s circumstances, including the likely effect on the children of separation from relatives with whom they have been living. X and Y have been in the care of the applicants since early 2022; it is important that that continuity of care continue. X and Y also have the benefit of a sibship with other children who may be around their ages.
Section 60CC(3)(f)(ii) refers to the capacity of any person, including grandparents or other relative of the children, to provide for the needs of the children, including his emotional and intellectual needs. The very fact of the applicants taking X and Y into their care and providing for them as I have described, makes it plain to me that they nurture and love them and that they provide for their needs. The applicants are attuned to the NDIS and medical needs of the children and seek orders so they can facilitate that care. The applicants plainly possess the capacity that is referred to in that section.
X and Y, as I have said, in the tragic circumstances of his case, are most fortunate to have Ms Axton and Ms Blank, the applicants. I am supported in reaching those conclusions by the emails from the wider family, which I have already read.
I then turn to s 60CC(3)(l), which says it is preferable to make an order that would be least likely to lead to the institution of further proceedings. Part of the hallmark of the Critical Incident List is to have applicants, when it is appropriate to do so, move through the Family Court system as expeditiously as possible. They are also dealing with family tragedy and grief. That is so in this case. Further, securing NDIS funding ought not be delayed.
It is critical in cases such as this that the first and second applicant not become embedded in a parenting process through the courts any longer than it needs to be. I would also conclude this consideration within s 60CC(3)(m) being any other fact or circumstance the court thinks relevant.
For all of those reasons, I am satisfied it is in X and Y’s best interests that I not only make the orders I am about to make, but I do so on a final basis.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 16 February 2023
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