Department Of Human Services & Mallory & Anor
[2010] FMCAfam 818
•22 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DEPARTMENT OF HUMAN SERVICES & MALLORY & ANOR | [2010] FMCAfam 818 |
| FAMILY LAW – Parenting – undefended in relation to mother – father unable to be located – child 6 years living with relative in Australia pursuant to a UK care order. |
| Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61C, 61DA & 64B |
| Aldridge & Keaton [2009] FamCAFC 229 Donnell & Davey [2010] FamCAFC 15 Mulvany & Lane (2009) FLC 93-404 |
| Applicant: | DEPARTMENT OF HUMAN SERVICES |
| First Respondent: | MS V MALLORY |
| Second Respondent: | MS S MALLORY |
| File Number: | SYC7739 of 2009 |
| Judgment of: | Sexton FM |
| Hearing date: | 22 July 2010 |
| Date of Last Submission: | 22 July 2010 |
| Delivered at: | Sydney |
| Orders delivered on: Reasons delivered on: | 22 July 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms. S. Christie |
| Solicitors for the Applicant: | Crown Solicitor's Office NSW |
| Solicitor for the First Respondent: | In person |
| Solicitor for the Second Respondent: | No appearance |
ORDERS
This matter proceed on an undefended basis as against the Mother.
By Consent between the Applicant and the First Respondent:
Ms V Mallory (“Ms V Mallory”) have parental responsbility for making all decisions which relate to the long term and day to day issues for [X] born [in] 2003 (“[X]”), such parental responsibility to include but not limited to:
(i)Making all decisions regarding [X]’s schooling;
(ii)Making all decisions regarding [X]’s health care;
(iii)Making all decisions and giving all consents for [X] to travel overseas and for [X] to have a British and/or Australian Passport (without the need for consents to be obtained from any other person); and
(iv)Making all decisions regarding [X]’s name.
[X] live with Ms V Mallory.
Ms V Mallory do all things to facilitate [X] spending time with and having contact with her family in the United Kingdom as set out in the Orders made on 4 August 2005 at the Family Division of the High Court of Justice in the United Kingdom.
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 Annexure A and these particulars are included in these orders.
All outstanding applications otherwise be dismissed and the matter removed from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Department of Human Services & Mallory & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT Sydney |
SYC7739 of 2009
| DEPARTMENT OF HUMAN SERVICES |
Applicant
And
| MS V MALLORY |
First Respondent
| MS S MALLORY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
I made orders in this matter on 22 July 2010 and now provide my reasons for judgment.
This case concerns parenting arrangements for [X] aged 6 years. [X] was born in England to Ms S Mallory and Mr B [in] 2003. The Mother and Father were married at that time. [X] was removed from her Mother’s care by a Local Authority at 3 weeks of age, and placed in foster care. She has lived with Ms V Mallory, her maternal great aunt, since she was 12 months of age. [X] and Ms Mallory live in [A] on Sydney’s Northern Beaches. [X] is in Year 1 at [N] Public School.
The Department of Human Services, with the consent of Ms Mallory, is seeking orders to confirm [X]’s present arrangements in accordance with Australian law. The Department considered making an application for Ms Mallory to adopt [X], but ultimately decided such an application was not in [X]’s best interests for two reasons: firstly, [X] should retain her family tree as it is, and adoption may unnecessarily confuse [X]’s familial relationships; and secondly, a parental responsibility order will give Ms Mallory all aspects of parental responsibility that she needs to effectively parent [X].
The Mother has not participated in these proceedings despite being given an opportunity to do so. The Father’s whereabouts are unknown and he has not therefore participated in these proceedings.
Neither the Mother nor the Father has ever made an application for [X] to be returned to his/her care since she was removed from their care at 3 weeks of age. The Mother is 30 years of age and lives in South East London in the United Kingdom. [X] is her second child. Her first child, [Y], died from Sudden Infant Death Syndrome at 11 weeks of age. The Mother has a third child, [Z], two and half years, who lives, by a 2009 Court order, with his maternal grandfather and step maternal grandmother with whom he has lived since he was 14 months of age. The Mother suffers from schizophrenia and has an ongoing mental illness.
Ms Mallory is 48 years of age and a [occupation omitted]. She is in the process of establishing her own business in the [A] area.
Short history
This history is taken from the affidavit evidence relied on by the Department, which is unchallenged.
[X] was born in London [in] 2003.
[X] was removed from her parents’ care 3 weeks after her birth by the Local Authority in Westminster.
On 26 December 2003, [X] was placed by the Local Authority with her maternal grandfather, Mr M.
In November 2004, when she was 12 months of age, [X] was placed with her maternal great aunt, Ms Mallory by order of the Principal Registry, Family Division. Since then, she has lived with Ms Mallory. Neither the Mother nor the Father were assessed as suitable carers in those proceedings.
In July 2005 [X] and Ms Mallory returned to London to participate in proceedings brought by the Local Authority Westminster in relation to [X]’s long term care.
On 4 August 2005, orders were made in the High Court of Justice, Family Division in the United Kingdom providing for:
a)Ms Mallory to have interim parental responsibility for [X] pursuant to s.55 Adoption Act, 1976, UK; and
b)
[X] to live with Ms Mallory and her then partner, Mr D, pending a proposed adoption hearing in Australia, with a view to
Ms Mallory adopting [X].
The Court noted that Ms Mallory agreed to facilitate contact between [X], her Mother and her extended family in the United Kingdom.
In August 2006, [X] became an Australian citizen.
In June 2007, Ms Mallory sought assistance from the Department of Community Services (as it was then named) to obtain a passport for [X], because the orders of the English Court were not accepted by the Australian passport office.
[In] 2007, the Mother gave birth to [X]’s half-brother, [Z].
In June/July 2009, adoption assessment report interviews were completed in relation to Ms Mallory. In July/August 2009, [X] travelled with Ms Mallory to London.
On 18 December 2009, the Director-General of the Department of Human Services NSW initiated proceedings in this Court seeking orders for Ms Mallory to have sole parental responsibility for [X] and an order for [X] to live with her.
On 25 February 2010, the Mother was served with the Application and supporting documents.
On 3 March 2010 an order was made to dispense with service on [X]’s Father.
On 11 March 2010, the Mother was served with a sealed copy of the orders with a letter explaining the steps she needed to take to participate in the proceedings.
On 28 May 2010, proceedings in respect of [X]’s half brother [Z] were finalised, and an order was made for [Z] to be placed in the care of his maternal grandfather Mr M and his partner, Ms L. An order was made for [X] to have contact with [Z] once a year in the United Kingdom, at the expense of the Local Authority.
On 11 June 2010, the Crown Solicitor, acting for the Department of Human Services, sent a further letter to the Mother about these proceedings and how the Mother could participate.
On 19 June 2010, the Mother communicated with the Crown Solicitor’s Office by email asking how she could participate.
On 24 June 2010, a further letter was sent to the Mother from the Crown Solicitor’s Office advising the steps she needed to take to participate in the proceedings. Nothing further was received from the Mother.
There was no appearance by the Mother or a legal representative on her behalf on 22 July 2010. I am satisfied the Mother was on notice of the proceedings and that it was in [X]’s best interests for the matter to proceed on an undefended basis as against the Mother.
Legal principles
The principles governing this case are set out in Part VII of the Family Law Act 1975. Section 60CA provides that I must regard the best interests of the child as the paramount consideration. To determine the child’s best interests I must consider the primary considerations set out in section 60CC(2) and the 13 additional considerations set out in section 60CC(3) as far as they are applicable to the circumstances of this case. Section 60CC(4) requires me to consider also the extent to which each party has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities. I must consider all the factors before making a determination. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration.
The primary considerations are firstly the benefit to the child of having a meaningful relationship with both of the child’s parents and secondly, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. These considerations are consistent with the first two objects of the Act set out in section 60B to which I must have careful regard.
The objects of the parenting provisions of the Family Law Act 1975 are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 4(1) of the Family Law Act does not define “parent” but states:
When used in Part VII in relation to a child who has been adopted means an adoptive parent of the child.
The Full Court in Donnell & Dovey[1] cited with approval the decision of Mulvany & Lane[2] and proceeded in that case on the basis that “parent” means a biological or adoptive parent and does not include a person who stands in loco parentis to the child. In the present case, the First Respondent, Ms Mallory, with whom [X] will live in accordance with the Orders I have made, is not one of [X]’s parents.
[1] [2010] FamCAFC 15
[2] (2009) FLC 93-404
A number of the provisions of Part VII of the Act, including the opening provisions of Part VII which set out the objects of the Act, apply only to parents and not to non-parents. However, section 64B(2) provides that parenting orders, including orders for parental responsibility, can be made in favour of non-parents. Section 60CA does not distinguish between parents and non-parents. The child’s best interests are the paramount consideration whether or not the parties are parents, and to determine best interests, the Court must consider the matters in sections 60CC(2)(3) and (4) of the Act.
The Full Court in Donnell & Dovey[3] said:
In our view, there can be no doubt that s.60CC(2)(a) has no application to a person who is not a “parent”. … However, that fact does not give rise to any difficulty in ensuring all relevant matters are taken into account.
….. Section 60CC(3)(m) …ensures the court can take into account every factor that may assist in reaching the right destination.
[3] [2010] FamCAFC 15 at paragraph 101
In Mulvany & Lane[4], approved by the Full Court in Donnell & Dovey[5] Finn J said:
As the legislation currently stands…the court can only reach its determination in parenting proceedings on an application of s 60CC(2)(b) and of the additional matters in s 60CC(3) so far as they expressly or impliedly refer to a person other than a parent.
[4] (2009) FLC 93-404
[5] [2010] FamCAFC 15
In Potts & Bims[6] approved by the Full Court in the decisions cited, Moore J concluded, in a case involving the parents and the maternal grandparents, that to the extent the matters in ss60CC(2) and (3) might be relevant, they could only be considered by reference to those factors that do not refer to parents. Her Honour said:
However that does not mean those considerations are to be ignored if the facts of the case raise them as issues because they can be addressed under other considerations such as paragraph (f)… or, if nowhere else, under paragraph (m).
The primary considerations
[6] [2007] FamCA 394 at paragraph 8
The benefit to the child of having a meaningful relationship with both the child’s parents
This factor does not apply as a primary consideration in this case to a non-parent.
The need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence
The Mother was mentally ill when [X] was born, having been diagnosed with schizophrenia in 1998. The Mother and the Father had a history of conflict and domestic violence in their relationship which continued during the Mother’s pregnancy with [X] and after [X]’s birth. The Local Authority held concerns that the Mother could not meet [X]’s needs. A court report, dated 14 October 2004, was prepared by a Consultant Psychiatrist in London and addressed the Mother’s mental health issues. Dr K said the Mother suffered from paranoid schizophrenia involving thought disorder and paranoid beliefs, with chronic relapse and remittent illness. Police reports about their interventions at the home of [X]’s parents in May and November 2003 were available to the Court in the UK proceedings. The Court determined that [X] was unsafe in the care of her Mother and Father and placed [X] with her maternal grandfather Mr M on 26 December 2003. In November 2004, [X] was placed with Ms Mallory, the maternal grandfather’s sister and an Australian citizen. The High Court of Justice, Family Division, London made final orders placing [X] in the care of Ms Mallory on 4 August 2005 and Ms Mallory brought [X] to Australia.
The Mother gave birth to her son, [Z], in October 2007. Despite some concerns about the Mother’s capacity to care for [Z] because of her mental illness, [Z] remained in the Mother’s care for 14 months until she was found unconscious on a bus by a member of the public with [Z] in her care. [Z] was placed with his maternal grandfather Mr M and his partner, Ms L. This arrangement was made permanent after defended proceedings before District Judge Bradley at the Principal Registry Family Division in London in July this year. In those proceedings, Ms Mallory sought [Z]’s placement with her and [X]. While complimentary of Ms Mallory, the court found that [Z] had suffered considerable disruption at a very young age, and was now settled in his placement with Mr M and Ms L and should remain there. The court decided [Z] also needed regular contact with his Mother. The Mother’s treating practitioner said the Mother suffered from persistent delusions and has been reluctant to comply with medication or take treatment advice[7].
[7] Annexure B to Ms M’s affidavit sworn 9 July 2010
The Court in the United Kingdom has addressed the risk of neglect to [X] in the Mother’s care in the 2004 and 2005 proceedings and found the Mother to be an unsuitable carer. As noted, the Court in the United Kingdom has recently found the Mother is unable to care for [X]’s half-sibling, [Z].
The Department of Human Services raises no concerns about [X]’s safety in the care of Ms Mallory. I am satisfied [X] will not suffer physical or psychological harm in the care of Ms Mallory.
The additional considerations
The child’s expressed views and the weight those views should be given
There is no evidence before me as to [X]’s expressed views. However, in circumstances in which [X] would remember no other carer in her
6 years of life, I am not persuaded her views would carry more than minimal weight.
The nature of the relationships between the child and each parent and the child and other persons
[X] has a close and loving relationship with Ms Mallory. Ms H says in her report dated 15 October 2009[8]:
[X] has lived with Ms Mallory since she was a few months old. She is therefore strongly and securely attached to her. [X] impresses as being comfortable and relaxed with Ms Mallory, and enjoys close physical affection. She clearly identifies Ms Mallory as her mother, although she understands that she has another mother.
The capacity of each parent and any other person to provide for the needs of the child including emotional and intellectual needs; the attitude to the child and to the responsibilities of parenthood demonstrated by each parent
[8] Annexure to Ms H’s affidavit affirmed 15 December 2009
Ms H describes [X] as “an attractive and healthy looking child whose physical growth and development is appropriate for her age.”… “She is a warm and friendly child, with an open and trusting manner.”
Ms Mallory was educated in London and successfully completed her Higher School Certificate. Ms H raises no concerns about
Ms Mallory’s capacity to parent [X]. Ms Mallory tells the court [X] is happy and successful at school, has many friends, is actively engaged in sporting and creative activities. Ms Mallory impressed me as a loving and capable carer.
Ms Mallory relies on Centrelink benefits to support herself and [X] but is engaged in [omitted] work and tells the court she is in the early stages of establishing her own business on the Northern Beaches. Ms H reports that Westminster social services has recently agreed to pay
Ms Mallory a parenting allowance of 80 pounds a week. I am satisfied Ms Mallory can support [X] financially.
Ms Mallory put herself forward as an alternative carer for [X] soon after [X] was removed from her parents’ care. This has involved subjecting herself to a number of comprehensive assessments both in the United Kingdom and in Australia for these proceedings.
Ms Mallory has impressed her assessors as a loving, capable and responsible carer for [X], and I found her presentation in Court consistent with these assessments.
The likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from either parent or any other child or other person with whom the child has been living
The orders sought by the Department of Human Services do not involve any change in [X]’s circumstances.
The maturity, sex, lifestyle and background (including culture and traditions) of the child
[X] is of African/Jamaican origin. Ms Mallory is of African origin. According to Ms H, social worker, who prepared a Special Case Adoption Assessment Report[9], Ms Mallory is very proud of her own heritage and has included aspects of the Jamaican culture into hers and [X]’s lives. Ms Mallory has taken [X] into the Brixton area of London to mix with the large Jamaican population there, and intends to do that again on their annual trips to London. Ms H says that Ms Mallory:
[9] Ms H’s affidavit affirmed 15 December 2009
… is very aware of the importance for [X] of growing up to have a positive racial and cultural identity. They have a number of African friends who they see from time to time. Ms Mallory enjoys a close relationship with her family, all of whom are African. There are many aspects of African culture that are integrated into their lifestyle. …
… she [Ms Mallory] often plays [X] Jamaican music and cooks Jamaican food…
I am satisfied [X] will enjoy the benefits of exposure to both the African and Jamaican cultures in Ms Mallory’s care.
The practical difficulty and expense of a child spending time with and communicating with a parent
There are obvious practical difficulties and expense of [X] spending time with and communicating with the Mother.
I accept Ms Mallory’s evidence that she endeavours to keep [X] in touch with the Mother by electronic means. At times [X] is able to speak to her Mother, at times the Mother is not well enough to communicate. At present, Ms Mallory does not know the Father’s whereabouts. However, when in London, [X] did speak to the Father by phone. [X]’s and Ms Mallory’s airfares will be paid by the Local Authority in London to enable [X] to see her Mother in London each year.
I am satisfied Ms Mallory is doing all she can to overcome the practical difficulties of arranging contact between [X] and her Mother.
The orders which would minimise the risk of there being further court proceedings about the child and whether those orders would be preferable
It will always be open to the Mother and/or the Father to bring proceedings to vary these Orders. There is no evidence before me to suggest such an application is likely in the foreseeable future.
Any other relevant fact or circumstance
Ms Mallory expresses a wish to ensure [X] knows her Mother, her half sibling [Z], aged 2 years and her extended family in the United Kingdom. Ms Mallory took [X] to London last year to spend time with family and has ensured [X] has enjoyed regular telephone contact with her great grandmother, and until recently, her maternal grandfather and maternal step-grandmother. Ms Mallory says she has had some difficulties with her brother since the proceedings about [Z] were finalised but intends to do all she can to remedy the difficulty. The Orders of August 2005, provided for the Local Authority of Westminster to fund [X]’s and Ms Mallory’s travel to London every two years and were made on the basis of the Court’s satisfaction as to Ms Mallory’s commitment to maintaining meaningful contact between [X] and her Mother and her extended family in London. Ms Mallory plans to travel to London with [X] in the next few weeks. She sends emails and photographs of [X] to the Mother.
Ms Mallory confirmed at the hearing of these proceedings that she remained committed to ensuring [X] knows her Mother and other members of her extended family. She plans also to establish communication between [X] and her paternal grandmother who lives in Jamaica.
As already noted, I find Ms Mallory is making commendable efforts to ensure [X] knows her Mother, her brother and her extended family. It is noteworthy that she hopes to establish a connection between [X] and her paternal grandmother in Jamaica. Ms Mallory will have funding for hers and [X]’s return airfares to London each year from the Local Authority in London and I am satisfied she is committed to making the trip every year for [X]’s benefit.
Parental responsibility
Section 61C(1) provides that each parent has parental responsibility for the child but by section 61C(3) the joint parental responsibility is subject to any order the court may make. Parental responsibility relates to decision making and not to the amount of time a child will spend with each parent. Section 61DA requires the court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Ms Christie submits that the presumption in this case is rebutted because the Court would be satisfied it is not in [X]’s best interests for her parents to have equal shared parental responsibility for her. While I accept that it would not be in [X]’s best interests for her parents to have equal shared parental responsibility, I do not find it necessary to apply the presumption at all. In my view, the authorities are clear that the presumption applies only to parents and has no application to orders for parental responsibility made in relation to a non-parent, as in this case. In Potts & Bims & Ors[10] in an analysis approved by the Full Court in at least two recent decisions[11], Moore J said:
On that same analysis, the presumption of equal shared parental responsibility imposed by s61DA …and consideration of the children spending equal or substantial and significant time, as set out more particularly in s65DAA, are not prescribed pathways in the reasoning process towards a best interests conclusion in proceedings between a parent and a non-parent…
[10] [2007] FamCA 394
[11] Aldridge & Keaton [2009] FamCAFC 229 & Donnell & Davey [2010] FamCAFC 15
As already noted, [X]’s Father cannot be found and [X]’s Mother did not participate in these proceedings. District Judge Bradley of the Principal Registry, Family Division in London, has recently determined after a defended hearing that the Mother lacks the capacity to care for [X]’s two year old half sibling, as a result of her mental illness. [X] has lived with Ms Mallory since she was 12 months of age. [X] is thriving in her care. In reality, Ms Mallory has been making major decisions about [X], including but not limited to her health and education, for the five year period [X] has been in her care. I am satisfied Ms Mallory will continue to do so in a responsible and child-focussed manner and that it is in [X]’s best interests for an order to be made in her favour for sole parental responsibility of [X].
Conclusion
Ms Mallory impressed me as an intelligent, capable and caring woman. Her face lit up in the courtroom when she was telling me about [X] and all her activities and achievements. I accept her evidence that [X] is academically bright and has read an impressive 154 books this year! She is good at maths. I accept her evidence that [X] shows a maturity beyond her years and loves to help in the home. [X] has a talent for athletics and will soon be old enough to compete in Little Athletics on the Northern Beaches. She is keen to learn tennis and is saving $20 for a racquet. [X] enjoys creative activities and has a desk in Ms Mallory’s [workplace] where Ms Mallory teaches her craft skills. I accept her evidence that [X] makes friends easily and “is very well known in [A].”
I am guided by the objects and principles already referred to. Having regard to all these matters, I am satisfied the orders set out at the beginning of these Reasons are in [X]’s best interests.
I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for judgment of Sexton FM.
Deputy Associate: Anna Domalewski
Date: 3 August 2010
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