Botwright
[2025] FedCFamC1F 128
•20 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Botwright [2025] FedCFamC1F 128
File number(s): MLC 1876 of 2025 Judgment of: BRASCH J Date of judgment: 20 February 2025 Catchwords: FAMILY LAW - CHILDREN – CRITICAL INCIDENT LIST – Where the father passed away some time ago – Where the mother is diagnosed with a terminal illness and expected to pass away imminently – Where the applicant maternal uncle and grandmother seek parental responsibility for the children – Where major long-term decisions will be required on an urgent basis after the mother’s passing – Where the Department hold no child protection concerns or records about the children or the applicants – Where the paternal family is aware of and supportive of the application - Final Orders made Legislation: Family Law Act 1975 (Cth) Part VII, ss 60B, 60CC, 60CC(2A), 65D(1), 65DA, 65DAB
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13
Division: Division 1 First Instance Number of paragraphs: 28 Date of hearing: 20 February 2025 Place: Brisbane (Via Microsoft Teams) Solicitor for the Applicants: Heinz Law ORDERS
MLC 1876 of 2025 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BOTWRIGHT
First Applicant
MS BOTWRIGHT
Second Applicant
ORDER MADE BY:
BRASCH J
DATE OF ORDER:
20 FEBRUARY 2025
THE COURT ORDERS ON A FINAL BASIS:
Procedural
1.That the matter be placed in the Critical Incident List.
2.That the need for a s 60I certificate is dispensed with.
3.That the matter be heard on an urgent basis.
Parenting arrangements
4.That the children X born 2008 and Y born 2010 (“the children”) live with the first or second applicant as agreed between the applicants.
5.That parental responsibility be conferred on the applicants, for all major long-term decision 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)Requesting a copy of the children’s birth certificates and dealing with the Office of Births, Deaths and Marriage;
(f)Dealing with the Department of Foreign Affairs and Trade/Passports Office and any Visa Providers; and
(g)Dealing with NDIS and making any applications if required.
6.That the applicants have responsibility for all day-to-day decisions with respect to the children.
Accessing services
7.That pursuant to s 114Q of the Family Law Act 1975 (Cth), the applicant 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.
8.That these orders are authority for the applicant 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.
Passports and travel
9.That pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth) the applicants are permitted to apply for, and the children X born 2008 and Y born 2010 are each permitted to have an Australian travel document (as defined by s 6 of the Australian Passports Act 2005 (Cth)) and are permitted to travel internationally.
10.That pursuant to s65Y of the Family Law Act 1975 (Cth) each applicant is permitted by this order to take or send the children from Australia to a place outside of Australia.
Communication with the paternal family
11.That the applicants will facilitate time with the paternal family as agreed between those family members and the applicants.
Liberty to approach chambers
12.That in the event any wording in this order constrains or otherwise fetters the applicants’ ability to deal with service providers for each child, they have liberty to approach chambers by email (via …@...) with an affidavit explaining the problem and proposing a solution, under r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 material received from the co-located officer from the Department of Families, Fairness and Housing (Victoria) on 20 February 2025 has been marked as Exhibit 1 and indicates no child safety concerns in relation to the children or the applicants.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Botwright has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BRASCH J
These are my Ex Tempore reasons, which I will revise to make the spoken word more amenable to reading.
The application before me seeks parental responsibility and living arrangement orders for two children: X born 2018 and Y, born 2010 ("the children"). The children will be respectively 17 and 15 on their next birthdays.
The first applicant in the matter is the children's maternal uncle, Mr Botwright. He was born in 1974 and will be 51 on his next birthday. The second applicant is the children's maternal grandmother, Ms Botwright. She was born in 1947 and is currently 77 years old.
I have affidavits from both applicants. Tragically, the children's mother is Ms C. She was born in 1976. I say, "tragically", because Ms C has recently been diagnosed with an aggressive and terminal illness. She is residing with the first applicant –the maternal uncle – at his home in Town B with the children where she is receiving palliative care. I am told by both applicants that it is anticipated she will pass away imminently. The children are currently accessing their school remotely as they are enrolled in E School.
In another tragedy for the children, their father, Mr D, passed away approximately 10 years ago. Obviously, then, and very sadly, when Ms C dies, the children will not have any biological parents to care for them. Thus, the matter comes before me on the Critical Incident List where two of the essential factors are fulfilled:
(a)that there are parents no longer able to or appropriate to care for the children; and
(b)urgent, major long-term decision-making is required.
Obviously, in the trauma that the children must be experiencing now and the imminent death of their mother, decision-making such as health supports for the children will be needed and needed sooner, rather than later. The children will also need an adult with decision-making responsibility to deal with their schools.
I am told that the paternal family and, in particular, the paternal grandparents are aware of this application and are supportive of the mother's wishes. I take comfort from the fact that the paternal grandmother or grandparents have visited Ms C at the home in Town B. This says to me that the applicants will ensure that the children maintain their link to their paternal side as best they can.
Ms C, the mother, has affirmed an affidavit which is before me, as is her Will. She appoints the two applicants as her guardians for the children under her Will, and she deposes she is supportive of the orders sought by her brother and her mother in relation to the ongoing care of the children.
I am satisfied both applicants have the wherewithal to care for X and Y. The first applicant, the children's uncle, is a healthcare professional and operates mainly in the City F region. He says (and I have no reason to doubt) that he is capable of providing for the children's needs financially and otherwise. They will also have the benefit of their grandmother, with whom they are, no doubt close, involved in the decision-making.
The home in which the children are residing and are living with their mother right now is approximately 20 minutes from City F. It has all the mod cons and I have absolutely no doubt that it is entirely suitable for the children. I am told that the children have a positive relationship with both applicants and each of the applicants are confident that they will be able to support the children through this very difficult period. I have no doubt about that.
Exhibit 1 before me is a s 67ZBD report from the Department of Families, Fairness and Housing ("the Department") dated 20 February 2025. I order information sharing material where in matters such as this, I have no natural contradictor. That is not to say I disagree or have concerns about anything that the applicants have deposed to, but it is simply another level of comfort as to what is best for the children. It came as no surprise to the applicants that the Department has absolutely no child protection concerns about these children.
Both applicants seek orders of the variety I have discussed with their solicitor so that they can make appropriate decisions for the children after Ms C passes away. As I have already alluded to, decisions will need to be made about their schooling and access to appropriate mental health supports following their mother's death.
The legal principles
I turn very briefly to the section 60CC factors which, of course, fall within Part VII of the Family Law Act 1975 (Cth) ("the Act").
Before I look at 60CC, s 65D(1) of the Act provides that this Court may make such parenting orders as it thinks proper, subject to 65DAB, which is irrelevant here.
Section 60B of the Act sets out the objects of Part VII, and that is:
The objects of this Part are:
(a)to ensure that the best interests of children are met, including by ensuring their safety; and
(b)to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Section 60CC considerations
Section 60CC of the Act addresses best interests and provides:
(1)Subject to subsection (4), in determining what is in the child's best interests, the court must:
(a) consider the matters set out in subsection (2); and
(b)if the child is an Aboriginal or Torres Strait Islander child--also consider the matters set out in subsection (3).
The children are not Aboriginal or Torres Strait Islander.
I therefore turn, albeit briefly, to then the individual 60CC factors.
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii) each person who has care of the child (whether or not a person has parental responsibility for the child).
Under this subsection, I am to consider what arrangements would promote the safety, including safety from being subjected to or exposed to family violence, abuse, neglect or other harm, of the children or people who have the children's care [see also s 60CC(2A)]. This matter simply does not arise here other than to say the application that has been brought by the maternal uncle and maternal grandmother demonstrates that they have actively taken steps to promote the children's safety, to enable and to secure therapeutic supports, and to deal with their school down the track.
(b) is any views expressed by the children.
The children are of an age where I am sure if they were not happy with the arrangements, they would be able to make that known. They have teachers to whom they would be able to express any concerns, but I have no doubt on the affidavits that are before me that the children will be well served and supported by the applicants.
(c) the developmental, psychological, emotional and cultural needs of the child
(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs
Subsections (c) and (d) really go hand in hand. The children, no doubt, have the usual range of developmental and psychological, emotional, and cultural needs that teenagers do. Though, perhaps one of the biggest needs they have at the moment is to be supported in the lead up to their mother's death and once their mother passes. I am satisfied beyond any doubt that both applicants have the capacity to meet the children's needs now and into the future - although I know X will be 17 on her next birthday. The very fact that the applicants have brought this application demonstrates that they are keen to take the steps they need to so they can make major long-term decisions for the children.
(e) is the benefit of the child being able to have a relationship with the child's parents and other people who are significant to the child.
Insofar as the children's parents are concerned, the children lost their father about 10 years ago. This may be the last time that they have with their mother. I hope they can spend whatever time they can with her and I have no doubt the applicants will support them through that and support them in their mother's memory [going forward].
(f) is anything else that is relevant to the particular circumstances of the children.
I hope that the mother gets some comfort that steps have been taken, and orders have been made that will allow her to know before she passes that the children are being provided for and will be cared for. I hope that gives her some comfort. I also consider it relevant that the applicants have final orders today of the kind that I have discussed with Mr Ashton because, very soon, they are going to be supporting two children who have lost their mother and, some time ago, their father and will have their own grief as well.
One of the points of the Critical Incident List is to get people in and out of the court system as quickly as children's best interests allow. This is one of those matters. The applicants ought be focused on the children, their sister and their daughter in the precious time they have left with her and then in dealing with the children's and their own grief thereafter. The last thing the applicants need is to be coming back to court when they have other things to do, which includes promoting the children's best interests.
For those reasons, I will make the orders that I discussed with Mr Ashton at the start of the hearing and which are in the document that he has before him. I shall also make the usual passport orders, and I will make orders for overseas travel.
I will make a further order [by consent] that the children spend time with the paternal family as agreed between those family members and the applicants.
The final order I will make is a slip rule order, the effect of which is if the wording in any of the orders constrains the applicants' ability to secure supports or services for the children or things such as birth certificates; if the wording of the order is the problem, rather than file an Initiating Application, there will be an order that they will have liberty to email chambers with an affidavit identifying what the problem is and proposing a resolution and, if appropriate, I will make those orders under r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The last thing I want is the applicants to be troubled by reapplying to the Court and all that goes with it if there is a simple solution to any of the words in the orders that I have made.
Finally, I will make a notation with respect to s 65DA and a notation that Exhibit 1 from today's hearing is a report from the Department of Families, Fairness and Housing, who indicate they have no child protection concerns for the children
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 20 February 2025
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