Bellamy
[2022] FedCFamC1F 1064
Federal Circuit and Family Court of Australia
(DIVISION 1)
Bellamy [2022] FedCFamC1F 1064
File number: BRC 14109 of 2022 Judgment of: BRASCH J Date of judgment: 23 December 2022 Catchwords: FAMILY LAW – CHILDREN – CRITICAL INCIDENT LIST – Where both of the child’s parents have passed away – Where major long term decisions are required on an urgent basis - Where the applicants seek parental responsibility for the child – Where interim orders had been made for parental responsibility to allow the applicants to access service providers for the child - Where other family members support final orders being made in the applicants’ favour - Final orders made Legislation: Child Protection Act 1999 (Qld)
Family Law Act 1975 (Cth) Part VII, ss 60B, 60CC(2), 60CC(3)
Australian Passports Act 2005 s 11
Division: Division 1 First Instance Number of paragraphs: 25 Date of hearing: 23 December 2022 Place: Sydney Solicitor for the Applicants: Alex Mandry Legal Group ORDERS
BRC 14109 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BELLAMY
First Applicant
MS BELLAMY
Second Applicant
order made by:
BRASCH J
DATE OF ORDER:
23 DECEMBER 2022
THE COURT ORDERS THAT:
1.That the child X born 2011 live with the first applicant Mr Bellamy and the second applicant Ms Bellamy.
2.That parental responsibility be allocated to the first and second applicants, for all major long term decision related to the child, including:
(a)The child’s education (both current and future);
(b)The child’s religious and cultural upbringing;
(c)The child’s health;
(d)Requesting that Medicare issue a card/s for the child and claiming Medicare benefits for the child;
(e)Dealing with the Department of Foreign Affairs and Trade, Passport offices or Visa providers; a
(f)Requesting a copy of the child’s birth certificate; and
(g)Pursuant to s 11 of the Australian Passports Act 2005, that the first and second applicants have authority to cause X born 2011 to be issued with an Australian travel document and permitted to remove X born 2011 from the Commonwealth of Australia.
3.That the first and second applicants have responsibility for all day-to-day decisions with respect to the child.
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 child, including but not limited to the child’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 child.
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 child, 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 child, they have liberty to approach chambers by email (with an affidavit) 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 Children, Youth Justice and Multicultural Affairs to attend but upon receiving their report 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 the pseudonym Bellamy has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BRASCH J:
Mr Bellamy and Ms Bellamy are the applicants in this matter. Mr Bellamy is the half-brother of the subject child, X, who was born 2011. X is, accordingly, 11 years old. The applicants made this application in tragic circumstances where X’s biological mother, Ms B Bellamy, died in mid-2013. X’s biological father, Mr C Bellamy, died in late 2019. 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 and for the security of an order for X to live with them permanently.
X came into the applicants’ care in October 2019 when he was eight years old. He was delivered to the applicants by the Department of Child Safety, as it is known in Queensland. X has lived with the applicants since then without interruption. X has some complex health issues. He needs health and therapeutic assistance for that. He requires various ongoing therapies. He, quite understandably, requires ongoing psychological services, because he witnessed, most tragically, his father’s death. X, I am told and have no reason to doubt, will require ongoing medical support with the assistance of NDIS.
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 could make appropriate arrangements for X’s health and wellbeing, and particularly to engage with healthcare providers and schools, and too – perhaps these are the most urgent factors – a further application required for NDIS and to apply for a Medicare card for X.
One day they would like to apply for a passport for X, in the event they holiday overseas. Obviously, that is not urgent, but I am happy to make that order today as part of my final orders. X’s ongoing future wellbeing and support are matters that well and truly bring this matter into the Critical Incident List.
The matter was first before me on 21 November 2022 and I made a range of interim orders, including that these proceeding be brought to the attention of wider family members. I have since received an affidavit filed by one of the applicants’ solicitors, Ms Sinclair, deposing to that being done. I also indicated in those orders that I would consider making final orders today, depending on what results came from notifying wider family members.
In that November order I also noted that I would request an officer from the Department of Communities and Justice – that actually should have read “Department of Child Safety” (“the Department”) – to advise the Court of their involvement with the child. I have, and will come to soon, received a report from the Department and, on the face of what it told me, I excused the officers from attending today.
As required by my order, I received an affidavit from Ms Sinclair, filed at the start of this week, being 19 December 2022. In that, she deposed to the letter that was sent about these proceedings and the documents that went with the letter to Ms D, Mr E, Mr F and Mr G. Ms Sinclair, being an officer of the Court, deposed to and annexed the email responses she received; it is worth reading those into the record.
On 2 December 2022, Ms Sinclair received an email response from Ms D, which said this:
This is [Ms D]. I received your letter and would like to forward my opinion. As [Mr Bellamy] and [X]’s aunty, I have a great deal of contact with the family. [X] is happy and well settled with [Mr Bellamy] and [Ms Bellamy]. He is very well cared for and I firmly believe it’s the best place for him. He has every chance of a normal, healthy life. We, my husband and I, want him to remain with them. Regards, [Ms D].
On 2 December 2022, Ms Sinclair also received an email from Mr E, which said:
Hey Sandra. I'm all good for this to go through and I'm hoping you receive the same response from the rest of the family. [Mr Bellamy] and [Ms Bellamy] have been doing an amazing job and I'm thankful [X] is in their care. Thank you.
I pause to note that the reference to “Hey Sandra” is Ms Sandra Sinclair. Ms Sinclair deposed that she had not received any response from Mr F or Mr G. I am satisfied that this matter, and these proceedings and potential orders that could be made, have been brought to the attention of as many people as possible within X’s wider family. I am also most heartened to read what Ms D wrote and what Mr E wrote. This is, of course, a matter where there is no natural contradictor, so I have some satisfaction from that. As I said, I also received a report from the Department and based on what they said, I excused their attendance today.
That report includes the following: that the Department currently has no statutory involvement with the family under the Child Protection Act 1999. They told me some of the parties’ history and also the child’s history. I do not need to read it out fully to the Court, but I simply note this: there had been, in the past, seven notifications and three child concern reports. Importantly, the applicant, Mr Bellamy, was generally not recorded as the person responsible for harm. This year, and relevantly to this application, the Department listed two intake inquiries. An intake inquiry can be recorded when the information relates to Child Safety’s core business but does not contain allegations of harm or risk of harm to a child and does not require any further action by Child Safety.
Both of those intake inquiries pertained to the applicants having difficulties in obtaining guardianship of X in order to make parenting decisions for him, such as private health, school enrolments and the like. That gives me comfort that the orders I will make today are indeed orders that are needed for X’s wellbeing. Much of the Child Safety history in relation to X related to X’s care when he was in the care of his late father, Mr C Bellamy. Of the six notifications listing X as a subject child, all were unsubstantiated. Relevant to the applicants who are before me today – and I am calling them ‘the applicants’ out of no disrespect, but just simply so we know which Bellamys I am referring to – most importantly, in 2019 the Department found that the applicants, who are before me today, were both willing and able to protect X.
On 26 February 2020 the Investigation and Assessment was finalised for X, with an outcome of “unsubstantiated, child not in need of protection”. It is further noted and gives me comfort that the Department said this:
[Mr Bellamy] stepped in (and that is the applicant [Mr Bellamy]) to care for [X] and [Mr F] (an older brother) full time and had arranged for the children to be engaged with a private counsellor in order to receive support for the loss of their father, and the children were also receiving additional support through school to help with their overall wellbeing at school. [Mr and Ms Bellamy] (being the applicants before me) had open communications with [X]’s step-mother, [Ms H], and were proactive in trying to maintain family connection amongst the sibling group. Overall, [Mr and Ms Bellamy] (the applicants) were assessed as being willing and able to protect [X] from harm.
[Matters in brackets are my additions to identify who was being referred to.]
Again, as I have said, in the circumstances where I have no natural contradictor, those matters give me considerable comfort.
I now turn to the best interests of X and Part VII of the Family Law Act 1975 (Cth) (“the Act”). Part VII of the Family Law Act tells me that the paramount consideration in an application such as this is X’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’s parents are no longer with us. The primary considerations in s 60CC(2) direct my attention to ensuring X has a meaningful relationship with both of his parents, which sadly again cannot occur.
I do note time with siblings is arranged by the applicants. Section 60CC(2) also refers to protecting children from physical or psychological harm 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 absolutely 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 is very fortunate to have the applicants step in, in the way they have, to his life.
I then turn to the additional considerations under s 60CC(3), many of which are again irrelevant because they refer to parents.
However, I turned my mind to the nature of X’s relationships with other persons, particularly other relatives of X; that is in s 60CC(3)(b)(ii). Wider family is supportive of the orders sought; I have already referred to that. The applicants are commended for keeping X in contact with his family members and I have no doubt that they will do so in the future. It is important for X, in the very sad circumstances of his case, that he maintain not only his paternal identities, as he will through the applicant, but also his maternal identities.
Section 60CC(3)(d) concerns the likely effect of any change in the child’s circumstances, including the likely effect on the child of separation from either of his parents or the child. I have already referred to the circumstances of X’s parents.
X has been in the care of the applicants since October 2019; it is important that that continuity of care continue. X also has the benefit of a sibship with J and K.
Section 60CC(3)(f)(ii) refers to the capacity of any person, including grandparents or other relative of the child, to provide for the needs of the child, including his emotional and intellectual needs. The very fact of the applicants taking X into their care and providing for him in the ways I have described in the Child Safety report, makes it plain to me that they nurture and love him and that they provide for his needs. The applicants plainly possess the capacity that is referred to in that section.
X, as I have said, in the tragic circumstances of his case, is most fortunate to have Mr Bellamy and Ms Bellamy, the applicants. I am supported in reaching those conclusions by the emails from 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, to move through the Family Court system as expeditiously as possible. That is so in this case. To secure a Medicare card and NDIS funding ought not be delayed. The ability to apply for a passport is plainly not urgent but, as I have already indicated, I am happy to make a final order about that anyway.
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. For all of those reasons, I am satisfied it is in X’s best interests that I not only make the orders I am about to make, but I do so on a final basis. The final s 60CC factors is subsection (m):
any other fact or circumstance the Court thinks is relevant.
That supports getting these applicants in and out of the [court] system as quickly as possible.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 23 December 2022
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