Boon & Anor & Bode

[2012] FamCA 375

FAMILY COURT OF AUSTRALIA

BOON AND ANOR & BODE [2012] FamCA 375

FAMILY LAW – CHILDREN – where the child the subject of these proceedings was conceived as a result of the sexual assault of the mother – where the biological father is unknown – where the maternal aunt and her husband apply for sole parental responsibility of the child – where the orders sought reflect the parenting plan that has been in place since the birth of the child – where the mother consents to the orders sought by the maternal aunt and her husband – orders that the maternal aunt and her husband have sole parental responsibility for the child and that the mother shall spend time and communicate with the child as agreed by the parties.

Family Law Act 1975 (Cth)

APPLICANTS: Ms Boon and Mr Boon

RESPONDENT: Ms Bode

FILE NUMBER: BRC 9987 of 2011

DATE DELIVERED: 18 May 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING IN CHAMBERS DATE: 18 May 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANTS: McCarthy Durie Ryan Neil

SOLICITOR FOR THE RESPONDENT: Christine Vachon

Orders

IT IS ORDERED BY CONSENT THAT

1. The child W born … March 2010 live and reside with the Applicants.

2. The Applicants have sole parental responsibility for the long term care, welfare and development of the child.

3. The Respondent spend time and communicate with the child at all such times as agreed.

4. The parties shall be entitled and this order shall act as an authority for all parties to receive at their request and expense any and all information in relation to health, education and welfare of the child from the child’s medical practitioners, allied health professionals and schools including but not limited to treatment required, school reports, newsletters, notifications of parent teacher interviews, photograph order forms, details of any disciplinary matters.

IT IS FURTHER ORDERED THAT

1. All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.

2. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

3. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Boon and Anor & Bode has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC9987 of 2011

Ms Boon and Mr Boon

Applicants

And

Ms Bode

Respondent

REASONS FOR JUDGMENT

1. The applicants in these parenting proceedings concerning W (“the child”) born in March 2010 are the child’s maternal aunt and her husband. The mother, who is a respondent to these proceedings, was sexually assaulted in mid-June 2009 and, consequently, fell pregnant with the child. According to both the mother and the applicants, the child’s biological father is unknown.

2. By a Response to the Initiating Application filed on 9 November 2011, the mother indicates that she agrees with each and all of the orders sought by the applicants, which are as follows:

   1.That the child [W] born [in] March 2010 live and reside with the Applicants.

   2.The Applicants have sole parental responsibility for the long term care, welfare and development of the child.

   3.That the Respondent spend time and communicate with the child at all such times as agreed.

   4.That pursuant to s 65G of the Family Law Act (1975) as amended the Court make a parenting Order in favour of the Applicants notwithstanding that the parties have not attended upon a family consultant and further that the Court formally dispense with the need for the parties to attend any conference with a family consultant.

   5.That the parties shall be entitled and this Order shall act as an authority for all parties to receive at their request and expense any and all information in relation to health, education and welfare of the child from the child’s medical practitioners, allied health professionals and schools including but not limited to treatment required, school reports, newsletters, notifications of parent teacher interviews, photograph order forms, details of any disciplinary matters.

   6.Such further or other Orders that this Honourable Court deems fit.

3. Furthermore, ahead of the matter being heard in the Judicial Duty List, the applicants filed submissions in support of the orders sought. By correspondence addressed to Murphy J’s Associate on 18 May 2012, the solicitor for the mother indicated that she and they “have read the written submissions of the applicants filed 16 May 2012 and taken instructions on same from our client. We confirm that we adopt the applicant’s submissions in full as our own”.

4. A family report had been prepared by a Family Consultant, Ms E. That report refers to the parenting plan that the parties to these proceedings had placed into effect since the child’s birth. Ms E was of the opinion that the parenting plan “meets his developmental needs appropriately”. In respect of the mother, whose pregnancy came about in the sad circumstances earlier described, Ms E opines:

   32.In my opinion [the mother] is a mature, intelligent and insightful young woman. It is further my opinion that after exploring alternative options, namely termination and adoption, [the mother] made a deliberate and considered decision to bestow responsibility for [the child’s] parenting to [the Applicants]. This decision was based upon her view that [the Applicants] would be competent parents and she wanted [the child] to remain in their family. [The mother] has clearly and consistently articulated that she does not want to parent [the child].

5. The ultimate recommendations made by Ms E are entirely consistent with the orders sought by the applicants and which the mother joins.

6. Furthermore, all parties have attended upon a psychologist “for assistance and guidance in relation to advising the child as to his familial origins and appropriate developmental milestones to do so”. The report of the psychologist Mr B is an annexure to his Affidavit filed 17 April 2012.

7. Given the unusual circumstances of this case and bearing in mind the principles enunciated in Division 12A of the Family Law Act 1975 (Cth) (“the Act’) and, specifically, s 69ZN, I determined, upon request of all parties, to hear and determine this matter in chambers without the necessity of requiring an appearance. I have perused the documentation to which this application relates, including the reports by Ms E and Mr B to which I have just referred.

8. In my view, the orders sought by the applicants in which the respondent mother joins, are entirely consistent with the child’s best interests and I make those orders accordingly. The orders will be made by consent.

9. I will direct that a copy of these short reasons for judgment be provided, together with a sealed copy of the orders to the solicitors for both the applicants and the respondent mother.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 18 May 2012.

Associate: 

Date:  24 May 2012