Blaze & Anor & Grady

[2014] FCCA 629

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLAZE & ANOR & GRADY [2014] FCCA 629

Catchwords:
FAMILY LAW – Children ‑ 8 month old child – raised following birth by same sex couple with consent of biological mother – father unknown at time of birth – all parties save for father enter into parenting plan – mother took child and seeks child live with her and half-siblings ‑ mother asserts she was denied regular time with child ‑ competing applications for residence ‑ father now located, supports mother’s application or alternatively child to live with him ‑ all parties profoundly deaf ‑ child not deaf ‑ mother further asserts that parenting plan not explained to her in Auslan (the sign language of the Australian deaf community) ‑ welfare concerns raised with respect to mother ‑ child returned to Applicants as acknowledged primary carers who agree to relocate from Victoria to Queensland pending hearing ‑ mother and father to spend regular twice weekly time with child by consent – Independent Children’s Lawyer appointed ‑ matter transferred to Family Court with a request that expedited trial be considered given age of child.

Legislation:  

Family Law Act 1975, Part VII, s.60CC

Re K (1994) FLC 92-461

First Applicant: MS BLAZE

Second Applicant: MS DIAMOND

Respondent: MS GRADY

Intervenor: MR HENNESSY

File Number: BRC 2313 of 2014

Judgment of: Judge Purdon-Sully

Hearing dates: 20 & 21 March 2014

Date of Last Submission: 21 March 2014

Delivered at: Brisbane

Delivered on: 21 March 2014

REPRESENTATION

Counsel for the Applicants: Mr J-P Mould

Solicitors for the Applicants: Porta Lawyers

Solicitors for the Respondent: Stephens & Tozer Solicitors

Solicitors for the Intervenor: Ms S Ewart as duty lawyer

ORDERS

THAT UPON THE UNDERTAKINGS PROVIDED BY THE APPLICANTS:

A.That they will both relocate to Brisbane within ten (10) days.

THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER:

1. That the child, X born (omitted) 2013 (“the child”) live the Applicants in Brisbane.

2. That the First Respondent (“the mother”) and/or the Intervenor (“the father”) deliver the child to the Applicants in the food court of the (omitted) Shopping Centre at 4.00pm on 21 March 2014, in default of which, pursuant to section 67Q of the Family Law Act1975, the Marshal of the Federal Circuit Court of Australia, the Australian Federal Police and all officers of the police forces of each State and Territory of the Commonwealth of Australia be authorised and directed to recover and deliver the child to the Applicants and for that purpose to stop and search any vehicle, vessel or aircraft and search any premises or place in which there is, at any time, reasonable cause to believe that the child may be found, and that the mother, the father, any of their servants or agents, be and are hereby restrained from again removing or causing the removal of the child from the care of the Applicants upon any breach of which by any person that person may be arrested without warrant.

3. That the parties have equal shared parental responsibility for the child.

4. That the child spend time with and communicate with the mother and father at all reasonable times as may be agreed between the Applicants, the mother and the father, but failing agreement as follows:

   (a)With the mother between 9.00am each alternate Saturday to 5.00pm Sunday commencing 5 April 2014;

   (b)With the mother and the father between 9.00am each alternate Friday to 5.00pm Saturday commencing 12 April 2014,

   (c)With the mother or the father or both parents between 9.00am to 5.00pm each Wednesday commencing 2 April 2014.

5. That the parties be at liberty to send photographs to the child by post or SMS.

6. That notwithstanding the above:

   (a)Mother’s Day shall be shared as follows:

   (i)Between 9.00am and 1.00pm with the mother; and

   (ii)Between 1.00pm and 5.00pm with the Applicants.

   (b)The child’s birthday shall be shared as follows:

   (i)Between 9.00am and 1.00pm with the mother and father; and

   (ii)Between 1.00pm and 5.00pm with the Applicants.

   (c)The Applicants shall have the child in their care from 9.00am 29 May 2014 to 5.00pm 3 June 2014 for the purpose of attending a birthday party of A (the child’s cousin) in Sydney and that the Applicants provide make-up time to the mother and the father within fourteen (14) days following their return from Sydney.

7. That the parent who has care of the child at the material time shall contact the Applicants immediately upon the child becoming unduly distressed whilst spending time with them, whereupon the Applicants will collect the child and that period of time will cease.

8. That all changeovers occur between the parties only in the food court of the (omitted) Shopping Centre and that in the event that one party foresees being late they shall SMS the other parties of their estimated arrival time and explanation for delay.

9. That the child’s Medicare card be exchanged at changeovers.

10. That the parties shall enrol in within fourteen (14) days and undertake to completion a Positive Parenting Program and provide a certificate of completion to all parties.

11. That without admission, the parties shall not take illicit drugs or expose the child to illicit drugs.

12. That the father give to the other parties two (2) months notice of any change to his work roster.

13. That this Order is sufficient authority to any doctor, hospital and/or any other health professional to provide to the parties any information concerning the health of the child.

14. That each party will notify the other as soon as possible of any major or emergency matter relating to the health and wellbeing of the child whilst in the care of that party.

15. That in the event of an emergency, the party having care of the child shall take the child to an appropriate medical practitioner or hospital as soon as possible and contact details for the treating practitioners.

16. That the parties shall ensure that the child is administered all medication prescribed to her by a medical practitioner as recommended.

17. That the parties shall do their best endeavours to ensure their respective residences are clean, safe and tidy when spending time with the child.

18. That the parties shall refrain from yelling or screaming at the child and shall not exercise physical discipline on the child.

19. That the parties shall ensure that the child is bathed at least once per day.

20. That the parties inform each other of addresses or contact details within 24 hours of such event.

21. That neither party make any comment in front of or to the child which demeans or belittles the other party, the other party’s family or the child.

22. That the parties shall ensure that the child is fed regularly and appropriately for her age.

23. That parties shall always supervise or provide alternative adult supervision (excluding Mr T and the child’s half-siblings) for the child in their respective care pursuant to these Orders, and should one party be unable to do so they shall contact the other parties immediately and give them the right to babysit, the Applicants having right of priority.

THE COURT ORDERS UNTIL FURTHER ORDER:

Independent Children’s Lawyer

1. That the child be represented in these proceedings and it is requested that Legal Aid Queensland arrange such representation, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings and further, the Independent Children’s Lawyer be at liberty to issue any subpoena they deem relevant to these proceedings.

Family report

1. That a Family Consultant be appointed by the Senior Family Consultant of the Federal Circuit Court of Australia Brisbane Registry in this matter to prepare a report pursuant to s.62G of the Family Law Act 1975 (as amended) (“the Act”).

2. That in addition to reporting any matters that the Family Consultant considers important to the welfare of the child/children and the factors contained in s.60CC of the Act the following opinions should be included:

   (a)what, if any, interventions might assist the parties to achieve a cooperative parenting outcome; and

   (b)what, if any, interventions would assist the parties to resolve potential disputes about the parenting orders or the changing needs of the child/children in the future.

3. That it should be noted a child should not be required to express his or her views in relation to any matter but in the event that a child does express views, the Family Consultant should also canvass and report the views and likely consequences of and for the child/children if the Court did not reach a conclusion which accorded with the child/children’s views.

4. That if either party requires the Family Consultant for cross examination at the final hearing, they should notify the Family Consultant in writing no later than 14 days prior to the hearing in the matter.

5. That the parties shall attend appointments with the Family Consultant on a date and time to be advised by the Family Consultant and they shall facilitate the attendance of the child/children for those appointments (unless otherwise advised).

6. That the Federal Circuit Court of Australia be responsible for payment of the cost of preparation of the Family Report.

7. That the Family Consultant shall have leave to inspect subpoenaed documents produced to the Court.

8. That the Family Consultant has liberty to list the matter for further directions and for the purpose of that mention, the Family Consultant and the parties have leave to appear on the telephone.  For the purpose of listing the matter the Family Consultant has leave to contact the Associate to the presiding Judge.

Transfer to Family Court of Australia

1. That pursuant to Rule 8.02 of the Federal Circuit Court Rules2001, these proceedings be transferred to the Family Court of Australia at Brisbane to be listed on a date to be advised.

IT IS NOTED:

A.That this matter has been deemed complex and appropriate for Counsel.

B.That it is requested that the Family Court of Australia give consideration to the listing of an expeditious final hearing of this matter.

C.That pursuant to section 65DA(2) of the Family Law Act 1975 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 Attachment A and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Blaze & Anor & Grady is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT BRISBANE

BRC 2313 of 2014

MS BLAZE

First Applicant

MS DIAMOND

Second Applicant

And

MS GRADY

Respondent

MR HENNESSY

Intervenor

REASONS FOR JUDGMENT

EX TEMPORE

Introduction

1. These proceedings are brought under Part VII of the Family Law Act1975 (“the Act”) with respect to X born on (omitted) 2013.

2. The proceedings were commenced by way of an Initiating Application filed on 13 March 2014 by the Applicants Ms Blaze and Ms Diamond.

3. The Applicants, who are not the biological parents of the child, sought orders on an interim and final basis that X live with them and that they and the Respondent mother, Ms Grady (“the mother”) have equal shared parental responsibility for the child and that the child spend time and communicate with Ms Grady at all reasonable times as may be agreed between the Applicants and the mother.

4. The application was sought to be heard on an urgent basis for the reasons that I shall shortly outline.

5. By way of Response document filed on 19 March 2014 the mother sought orders on an interim and final basis that the child live with her and that she have sole parental responsibility for the child.  She also sought orders for the preparation of a family report.

6. The matter was listed before me yesterday.  All parties are legally represented.  The biological father of the child Mr Hennessy (“the father”) was given leave to intervene in the proceedings.  He has been assisted in the presentation of his case by Ms Ewart, a duty lawyer.

7. After taking submissions, I stood the matter down to consider the material as follows:

   a)The Initiating Application of the Applicants filed on 13 March 2014;

   b)Supporting affidavit of the Applicants filed 13 March 2013;

   c)Notice of Child Abuse filed 13 March 2013;

   d)Two further affidavits of the Applicants filed by leave yesterday;

   e)The Response of the mother and her supporting affidavit of 19 March 2014; and

   f)Written submissions by the Counsel for the Applicants, Mr Mould, and the Respondent’s solicitor, Ms Harris.

8. After considering the material, I expressed some preliminary views and stood the matter down to enable the parties to engage in some discussions.

9. I indicated to the parties that I was minded to place the child in the care of the Applicants and afford the biological parents regular time with the child and invited the parties to have some discussions in relation to the amount of time.

10. The parties were in agreement that an Independent Children’s Lawyer should be appointed in the matter.  Following my raising this during the course of submissions it was further agreed that the matter should properly be transferred to the Family Court.

11. All of the parties in these proceedings – the Applicants and the biological parents – are profoundly deaf.  The child, X, however is not deaf.  The parties were assisted throughout by interpreters.  However, one interpreter had to leave and there was only one interpreter available in the afternoon.  Whilst the parties spent some time negotiating and trying to reach agreement, unfortunately they were unable to do so.  As it was 4.55pm I adjourned the matter until this morning.

12. I was however presented with a minute of orders that the parties had agreed and was referred to particular parts of those orders where a Court determination was required.

13. The orders agreed would return X to the care of the Applicants and all of the parties would have equal shared parental responsibility for the child.  The parties agreed that the child would communicate with the parents on two occasions a week, however there was dispute about the amount of time on those particular occasions.

Agreements

1. I provided some preliminary views in relation to that and it is was then agreed that the mother will spend time with X from 9.00am each Saturday to 9.00am Sunday commencing 5 April 2014; that both the mother and the father will spend time with X from 9.00am each alternate Friday to 9.00am Saturday commencing 12 April, and then either the mother or the father or both parents would spend time with the child between 9.00am to 5.00pm each Wednesday commencing 2 April.

2. I did not make an order in relation to a parent having Skype time with the child.  There were some practical difficulties associated with that and it possibly was not going to be a helpful order, given that we are dealing with such a young child.

3. There was also agreement about the Applicants and the child being able to return to Victoria where they have been living, and that they would then relocate to Brisbane within the next 10 days to enable the time between the mother and father and X to commence.

4. There was also agreement that the parties would enrol and complete a Positive Parenting Program.

5. There was agreement in relation to changeover, and that if, for any reason, the child is unduly distressed when spending time with the mother and father, then they would notify the Applicants and the Applicants would collect the child.

Brief background

1. This is an unusual case.  The Applicants and the mother were close friends.  In the latter part of 2012 when the mother discovered she was pregnant with her fourth child - the mother has three other children who are aged 17, 10 and 8 – she felt that it would be difficult for her to financially support another child as she was living on a Centrelink benefit at the time and she did not know who the father of the child was.

2. As a consequence of her discussions with the Applicants, the Applicants offered to raise the child for her.  That was the situation after X’s birth, the Applicants caring for the child until the mother took the child on 10 March 2014.

3. It is unchallenged, on the evidence, that the mother spent limited time with the child - possibly, no more than 17 days and that that time was supervised by the Applicants.

4. Subsequent to the birth of the child and on 25 June 2013 the parties entered into a parenting plan, which is Annexure A to the affidavit of Ms Blaze filed on 13 March 2014.

5. The parties to the parenting plan were the Applicants and the mother.  The recitals detailed, inter alia, that the mother had become pregnant and was unaware of the biological father, did not feel that she was able to raise the child and had offered to give custody of the child to her long standing friends, the Applicants, who had been unable to have their own child through assisted reproductive therapy.  The Applicants live in a same sex relationship.

6. The recitals also provide that the mother felt that it was in the child’s best interests for her and for her children to be able to have an ongoing relationship with the child and felt that the Applicants would encourage and maintain that relationship.

7. The recitals also made clear that it was intended that the child be raised as a child of the Applicants, the parties entered into the parenting plan to record the parenting arrangements and that they would determine in the future whether or not they obtained a formal court order.

8. It recorded that they had participated in some counselling with a doctor – named in the parenting plan – in relation to social and psychological implications of the proposed parenting arrangement agreed upon between them and that they intended to continue to access counselling as and when required.

9. The document also indicated that the parties had received independent legal advice in relation to the proposed parenting arrangement and the options available to them, and that they had entered into that plan after giving careful consideration to the social, psychological and legal implications of the proposed parenting arrangement.

10. The parenting plan then went to set out their agreement that the Applicants would have equal shared parental responsibility for the child and that the mother would take such steps as may be necessary to give effect to any decision that they made in that regard, and there was some mention about a Medicare card.  I do not need to go into that.

11. However, in terms of the living arrangements, the parenting plan sets out that the child would live with the Applicants and that the Applicants would facilitate the child having a relationship with the mother and her half-siblings and that the Applicants would make the child available to spend time with and communicate with the mother and her half-siblings at all times as may be agreed between the parties in writing.

12. There was also some specific issue agreements.  I shall not go into that save to note, because it is relevant in the context of these proceedings, that the mother agreed to the parties returning to the State of Victoria with the child and that Victoria would be the habitual residence of the child.  Further, the parties were to keep each other informed in relation to their residential addresses and contact details.

13. So what is clear from the parenting plan is that the child was intended to be raised by the Applicants and that it was intended that the mother and the child’s half-siblings were to be involved in the child’s life.

14. It is also relevant to note that the mother registered the child’s surname as Diamond-Blaze, which is a composite of the surnames of the Applicants.

The mother’s position

1. The mother’s evidence and her case is that, notwithstanding repeated requests, she was not afforded an opportunity to spend regular time with X and it was limited time - prior to October of 2013 on her case it was about 17 or 18 days and then not at all after October 2013 until she took the child.

1. The evidence is that the mother convinced the Applicants to attend a counselling session with her on 11 March 2014.  That was the day she took X and X has been in her care since that time.

2. The mother and father live in Brisbane.  The father is in employment.  The mother is a full-time homemaker.  She has two other children in her care.  Her eldest daughter who is 17 is no longer living with her.

The Applicant’s position

1. The Applicants live in Victoria.  The Applicants’ case is inter alia that the mother has been neglectful in the care of her children.  That is detailed in their affidavits filed on 13 March 2014.  It is detailed at paragraph [9] of written submissions of Mr Mould.

2. The Applicants further depose to the Department of Child Safety being involved with the mother’s family.  The mother admits that in her evidence filed on 19 March 2014.

3. It is the Applicants’ case that the child does not know her biological father, that the child has only seen her mother on a supervised basis for some 17 days – three days in June and two weeks in October; that the child has a close bond with them, that they have been exercising sole responsibility for the care of the child since the child’s birth, that they have demonstrated a willingness to facilitate time between the mother and the child and that, in all the circumstances, the best interests of the child lie with them.

4. They also deposed to the removal of the child in the circumstances that occurred as creating an unacceptable risk of harm, in light of previous concerns about mother’s neglect of her other children.  I have referred to Notice of Child Abuse filed by leave yesterday and the particularisation of their concerns at paragraph [6] of that document.

The father’s position

1. The father is yet to file any material, however, he has been ably represented in these proceedings by Ms Ewart.  It is his case, in short summary, that he supports the mother’s position in these proceedings; that the child should live with her and her step-siblings, that he wishes to be involved in the child’s life, and that if the Court is not minded to place the child in the primary care of the mother, then he wishes the Court to make an order in his favour.

2. There has been DNA testing undertaken and it is not challenged that the father is the biological father of the child.

Discussion

1. As I said, this is an unusual matter. It presents with a number of complex features.

2. This is an interim hearing today.  I am not in a position to make findings in relation to disputes of fact.  Clearly, this is a matter that warrants the appointment of an Independent Children’s Lawyer to represent X’s interest in these proceedings.  The Court would also benefit from the preparation of a family report in the matter.

3. Given the allegations that have been made, it will be necessary also for some subpoenae to issue to the relevant authorities to assist the Court to make a wise decision in X’s best interests.

4. However, what is unchallenged on the evidence is that following X’s birth, irrespective of how it came about, she was placed in the care of the Applicants and that was done with the consent of the mother.

5. It is also unchallenged that the father did not consent to that arrangement.  As evidenced, in the parenting plan, it appears that the mother did not know who the father was at that time.

6. I shall just pause for a moment, because I neglected in outlining the history to refer to something relevant to the mother’s case which is, it her case that notwithstanding entering into and signing the parenting plan, she is profoundly deaf and the parenting plan was not interpreted for her by way of Auslan (the sign language of the Australian deaf community), which is how she communicates.  So there is potentially an issue in relation to whether the mother understood or fully understood the agreement she signed.  That, however, is an issue for another day.  There are a number of issues for another day in this case.

7. However, what is further unchallenged is that this child has been solely cared for by the Applicants since shortly after her birth up until 10 March 2014 and it is unchallenged that the mother had had limited time with the child.

8. Irrespective of how the arrangement came about, the reality for this eight month child is that her primary care has been afforded by the Applicants, and at this interim stage it in the child’s best interests for there to be a continuity of that care.

9. However, it cannot be suggested that it is not in the best interests of X to also know her biological parents.  The orders that are sought in these proceedings on an interim and final basis by the Applicants envisage the mother continuing to engage in X’s life.  The parenting plan, upon which the Applicants rely, clearly envisaged that X would have an ongoing relationship with her mother and her siblings.

10. The Applicants have told the Court – in response to a question that I posed yesterday - that they could relocate to Brisbane pending the determination of this matter.  In those circumstances, it is appropriate that X return to their care and that the mother and the father be afforded ongoing time with X.

11. I am satisfied that the orders that have now been agreed upon will afford X an opportunity to develop a relationship with her mother and also her father.  There is no evidence before me to enable me to conclude that it would not be in her interests to do that.

12. In that regard, in informing my discretion in making orders in the best interests of X – the paramount consideration for the Court - I have regard to not only the factors set out in section 60CC of the Act, but also the objects of Part VII of the Act which relate to children and the principles underlying those objects in Part VII which make clear that it is in the best interests of children to develop a relationship with their parents. I do understand, in saying that, that the Applicants present themselves as the parents of this child. I mean no disrespect to them in saying what I have just said, however there is no evidence to suggest that it is not in the best interests of this child to develop a meaningful relationship with her biological parents.

13. The orders that I am asked to make address some of the welfare concerns that have been raised by the Applicants, namely, that the parties will engage in an appropriate parenting course and it seems as if the Applicants must have some confidence in the mother’s ability, given the nature of the orders that I am being asked to make, that the mother will act protectively in relation to the child for the time that she spends with the child, notwithstanding the various concerns that the Applicants have raised in the material.

14. So for those brief reasons and at this interim stage I am satisfied that it is in the best interests of X that I make these orders.

15. The orders require X to be returned to the care of the Applicants.  They will then be at liberty to return to Victoria and then relocate back to Brisbane within 10 days.  That is all agreed.  Thereafter, the mother and the father will be at liberty to spend regular time with X.

16. I decline to make an order in relation to the child having Skype time with the mother and the father.  Neither the mother nor the father has a Skype facility at their residence and we are dealing with an eight month old child.  The benefits to the child of engaging in Skype at this stage are possibly open to debate.

17. I make an order for equal shared parental responsibility.  In doing that I am required to consider under the legislation having made that order, whether or not I should make an order for equal time and if not equal time, substantial and significant time, and whether either outcome is practicable.  It is clearly not in the best interests of this eight month old child to be placed in either care regime at this stage.

18. I am satisfied that the orders will provide X with a continued familiar care regime with the Applicants who have been her primary carers and yet afford her a regular opportunity to spend time with her biological parents and develop attachments with her father.

19. It will also afford her an opportunity to spend some regular time with her siblings, with whom she has a right to develop a relationship.

20. I appoint an Independent Children’s Lawyer in this matter.  I am satisfied that the facts of this case meet the threshold as set out in the Full Court decision of Re K (1994) FLC 92-461. There are some complex features associated with this case that warrant that appointment being made and the Court would benefit from the assistance of an Independent Children’s Lawyer.

21. The parties agree that this is a matter that is appropriate for transfer to the Family Court.  I expressed the view to the parties yesterday during the course of submissions that in my view this is a matter that warrants a Court considering expediting the trial.  Given the very young age of the child, it would be in X’s best interests, in my view, that there be an early determination as to her future living arrangements.

22. She is a young child developing attachments and it is in her interests that a decision be made as quickly as possible in relation to her final arrangements.

23. Further, we have the Applicants who live in Victoria but who have agreed to relocate to Brisbane pending the determination of these proceedings.

24. Whilst I am satisfied that this Court would be able to determine this matter and hear the issues, and obviously arrange for any appropriate reports that need to be prepared  - it will be the Independent Children’s Lawyer, no doubt, who will be organising those reports – this is a matter that will possibly take longer than three days and, in my view, given the issues that have been identified on the material thus far, it is a case that should properly be considered by the Family Court of Australia.  In transferring the matter, obviously I am not in a position to do anything but request that the Family Court consider listing this matter expeditiously.  That will be a matter properly for that Court, having regard to its resources and listings.  However, I intend to make a notation to that effect on the order.  I shall also publish my reasons.

Orders

1. So for all of those reasons, I make the orders that I am being asked to make, save for the changes that have been agreed.

2. I shall transfer the matter to the Family Court with the consent of the parties, having satisfied myself that it is appropriate to do so being a complex matter that warrants consideration by that Court.

3. I shall make a notation to the order that it is requested that the Family Court of Australia give consideration to an expedited trial.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Purdon-Sully

Associate: 

Date:       3 April 2013