Dodson
[2022] FedCFamC1F 1043
Federal Circuit and Family Court of Australia
(DIVISION 1)
Dodson [2022] FedCFamC1F 1043
File number: WOC 1276 of 2022 Judgment of: BRASCH J Date of judgment: 29 November 2022 Catchwords: FAMILY LAW – CHILDREN – CRITICAL INCIDENT LIST – Where both of the child’s parents have passed away – Where parental responsibility is required on an urgent basis - Where the applicants seek parental responsibility for the child – Where interim orders were made for parental responsibility to allow the applicants to access service providers for the child - Where there is no opposition from other family to the applicants having parental responsibility for the child on a final basis - Final orders made Legislation: Australian Passports Act 2005 s 11(b)
Family Law Act 1975 (Cth) ss 60CC, 121
Division: Division 1 First Instance Number of paragraphs: 29 Date of hearing: 29 November 2022 Place: Sydney (by web conference) Solicitor for the Applicants: Rossi Simicic Lawyers ORDERS
WOC 1276 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DODSON
First Applicant
MR DODSON
Second Applicant
order made by:
BRASCH J
DATE OF ORDER:
29 NOVEMBER 2022
THE COURT ORDERS THAT:
1.That the child, X, born 2017, live with Ms Dodson (“the first applicant”) and Mr Dodson (“the second applicant”).
2.That parental responsibility be allocated to the first and second applicants, for all major long term decisions 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 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; and
(f)Requesting a copy of the child’s birth certificate.
3.That the first and second applicants have responsibility for all day-to-day decisions with respect to the child.
4.That the paternal family will spend time with the child as agreed.
5.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, other education providers, 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.
6.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.
7.Pursuant to s 11(b) of the Australian Passports Act 2005, that the first and second applicants have authority to cause X born 2017 to be issued with an Australian travel document.
8.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 seeking the relevant amendment/s.
THE COURT NOTES:
A.A co-located officer from the Department of Communities and Justice was not able to appear in Court on the first return. However, correspondence was received with respect to their involvement with X and the first and second applicants that was read onto the record on the first return, and has been incorporated into these Reasons.
B.Importantly, the Department did not hold any concerns about the child remaining in the care of the first and second 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).
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 Dodson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BRASCH J:
X was born in 2017. He is just five years old, turning, obviously, six next year. X’s mother, Ms B, passed away tragically in early 2022. X’s father, Mr C, passed away in mid-2022. I am told, and have no reason to doubt, that, under the mother’s testamentary will, the applicants were appointed as the child’s testamentary guardians. I am told, and again have no reason to doubt, that the father consented to the arrangement that X live between the maternal aunt and maternal grandparents’ home.
However, before that arrangement was formalised or, more particularly the father’s consent documented, the father was admitted into the D Hospital in early 2022. In March 2022, X started living with the applicants on a full-time basis. In early 2022, the father was admitted to ICU and placed on life support. Due to this, the applicants wrote to Services Australia on 4 April 2022 to request the child be included on their Medicare card. That is for obvious reasons: so they could provide for X the medical care that he may need. The father then passed away in mid-2022.
The first applicant in these proceedings is Ms Dodson, the maternal aunt, and her husband is the second applicant, Mr Dodson. Both parties propose formal arrangements that sees them having parental responsibility and, obviously, for X to live with them, as has been occurring. The matter was referred by the applicants, and perhaps more so their solicitors, to the National Assessment Team for consideration to be included in the Critical Incident List on 21 October of this year. That referral was accepted and the applicants’ material and Initiating Application was filed on 25 October 2022. The first return of the matter came before me on 28 October 2022.
At that first return, I had invited the Department of Community Justice (“the Department”) to attend, but they were unable to arrange a representative to attend in Court on that day. They, however, helpfully provided a personal history report, which I summarise as follows. It was noted that the Department of Community Justice had not undertaken any field assessments with respect to X, nor did they have an open case in relation to X. I was advised there had been a total of five historical reports received by the department in relation to X, most of which was in 2020.
The Department told me they did not hold a birth certificate for X. They were not aware of any other person who may require to be served. At the time of their last report in 2020, X was known to be living with his mother. Most importantly for present purposes, the Department of Community Justice did not hold any information regarding the applicants, Ms Dodson and Mr Dodson, causing harm to any child or young person. On the first return of this matter, I read that into the record, as I do now.
In looking whether I should make final orders, the report from the department gives me considerable comfort. On that first return, I also made orders that these proceedings and the material the applicants were relying upon be brought to the attention of the paternal aunt and the paternal grandmother. The material that is before me today is as follows:
·Initiating Application filed 25 October 2022;
·Affidavit of Mr Dodson filed 25 October 2022;
·Affidavit of Ms Dodson filed 25 October 2022;
·Affidavit of Mr E filed 25 October 2022;
·Notice of Child Abuse, Family Violence or Risk filed 25 October 2022;
·Application in a Proceeding filed 25 October 2022; and
·Affidavit of Ms Dodson filed 28 November 2022.
The last of these documents is an affidavit filed yesterday, from which I am satisfied that these proceedings and the proposals were brought to the attention of the paternal aunt and the paternal grandmother. I am also satisfied, by reference to what is said in the affidavit and annexure F at page 12 of that affidavit, that Ms F and Ms G (as they are referred to in a text before me) are aware and are comfortable with the arrangements that are in place. But annexure F tells me a little more than just that. I can see a response from Ms F that says, “Beautiful.” It sits right at the top of the screenshot. It would seem that information had been shared with her. In the text message, on 19 November, there was a message from one of the applicants:
Just wanted to check that you had both been served with the guardianship paper and if you’re both happy with what was in the paperwork or you want anything added or changed.
There was a reply from Ms G, which says:
I’m okay with it.
Followed by what I think is popularly called a smile face emoji. There is a response then from Ms F, which says:
Hi, [Ms Dodson] –
Ms Dodson, of course, being the first applicant:
Hi, [Ms Dodson]. Yes, I received the guardianship papers and looked over them and I’m happy with everything. Thank you.
As I said, that message gives me wider comfort than simply their attitude to these proceedings. The next message that is before me is very recent, 23 November, at 5.26 pm. It is a message that says:
Not sure if Mum sent anything through to you or not, but preschool organised to make a garden for [Ms B] early in the year.
Ms B is X’s late mother. The message goes on:
[X] finally got to build it today and he absolutely loves it.
There is a love heart reaction attached to that. It looks then – the next message looks to be a photo. I am heartened to see those messages, brief as they may be, because it indicates to me very clearly that the applicants keep X’s paternal family involved in his life and aware of what he is doing.
This matter was received into the Critical Incident List. It was a Critical Incident List on its first return and remains so. A cornerstone of the Critical Incident List is demonstrated urgency. I was satisfied, on the first return, that the applicants’ needed formal authorities to be able to deal, in particular, with education authorities.
The child currently attends preschool five days a week, but will start kindergarten next year. The applicants clearly, in my view, needed the authorities that would make their dealing with the Education Department as smooth as possible.
I also pause to note that the applicants have a child, H, who is currently seven years of age and is an obvious form of comfort and sibship for X. The applicants, understandably, wished the children to go to the same school. That made sense logistically and it also makes sense for the sibship, as far as possible, to be together. Thus, I was satisfied on the first return that the matter had the urgency that meant it should stay within the Critical Incident List.
The legislation in the Family Law Act relevant to children is, of course, in Part VII, where the paramount consideration is X’s best interests. Section 60B of the Act sets out the objects of Part VII and the principles underlying it. Of course, a lot of that refers to parents and, sadly, X’s parents are no longer with us. However, it also refers to protecting children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. I have already referred to the Department of Community Justice’s reports 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 Act.
Section 60CC of the Act tells me how I am to work out X’s best interests, or it is at least the main provisions that assists me in doing that. Again, many of those provisions do not apply because the applicants are not X’s parents. Nevertheless, the primary considerations ask me or direct my attention to ensuring X has a meaningful relationship with both of his parents which, sadly, cannot occur. But s 60CC(2) again exhorts me to protect the child from harm. I have already referred to that factor and safely have made the findings I do on the strengths of the Department of Community Justice reports.
I then turn to the additional considerations under s 60CC(3), many of which are, again, irrelevant. However, I turned my mind to the nature of X’s relationship with other persons, including any grandparent or other relative of the child in s 60CC(3)(b)(ii). I have already referred to the information exchanges the applicants have engaged in with the paternal family. I have read the parties’ first affidavits and, again, the most recent affidavit where the first and second applicant are ensuring that X’s relationship continues with his paternal aunt, his paternal grandmother and, obviously, any wider family they have.
The applicants are commended for doing that and I have no doubt they will do so into the future. It is important for X, in the sad circumstances of his case, that he maintain not only the maternal identity that he will through the first and second applicant, but his paternal identity, as he can, through the paternal aunt, paternal grandmother and wider family.
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 any other child. Of course, great tragedy has befallen X, but he is now, and has for many months, been in the care of the first and second applicants. It is important that that continuity of care continue. X also, as I have already referred to, has the benefit of the sibship of H, who is a couple of years older than he.
I turn to s 60CC(3)(e), the practical difficulty and expense of a child spending time with or communicating with a parent, but I will broaden that out to consider the paternal family. I have already referred to the applicants ensuring that X spends time with the paternal family and note one of the orders I made on an interim basis is that time would occur as agreed. I intend to make that order on a final basis.
Subsection 60CC(3)(f)(ii) is the capacity of any person, including grandparent or other relative of the child, to provide for the needs of the child, including the emotional and intellectual needs. The very fact of the applicants taking X into their care and providing for him, as is plain to me on their material, and the nurture and love that he needs, demonstrates to me, as clearly as can be demonstrated, that the applicants possess that capacity. X, in the tragic circumstances of his case, is most fortunate to have his maternal aunt and his maternal uncle. I also have no doubt that the paternal family offer him the nurturing of his emotional and intellectual needs that he needs now and will into the future.
I then turn to s 60CC(3)(l), whether it would be preferable to make an order that would 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 into the Family Court system and out of the Family Court system as expeditiously as possible. People such as the applicants have their own grief to deal with, apart from having another person come into their household, such as X.
It is critical in cases such as that of Mr and Ms Dodson, the first and second applicant, that they not become embedded in a drawn out parenting process where it is inappropriate for that to occur. I am satisfied, and I have already read into the record, what the paternal family had to say. It is, therefore, important in the exercise of my discretion that final orders be made today, so the applicants can get on with their lives, get on with their grief and get on to allowing X – but I also add H – to grow into the best people that they can.
The final s 60CC factor is subsection (m), any other factor or circumstance the Court thinks is relevant. I have already said all I need to say about the importance of this matter, in the circumstances of this case, exiting from the system as expeditiously as possible. For those reasons, I propose to make the following orders on a final basis.
By reference to the interim orders, I will make on a final basis order 2, order 3, order 4, order 5, order 6, order 7. I also propose a further order and it is in these terms. In the event any wording in this order constraints or otherwise fetters the applicants’ ability to deal with service providers for X, they have liberty to approach my chambers by email – and we will include the email address – under the slip rule seeking the relevant amendment. I will not include this in the order, but that slip rule application would have to include an affidavit, obviously, indicating what the problem is. I will make some notations.
I will make interim order number 7 – that is the authority to deal order. The next order will be a section 11(b) [Passports Act] order, then the final order will be the slip rule order.
I will make the following notations: It is noted that: (a) a co-located officer from the Department of Communities and Justice was not able to appear in Court on the first return. However, correspondence was received with respect to their involvement with X and the first and second applicants. That was read onto the record on the first return as, again, it has been incorporated into these reasons; (b) importantly, the department did not hold any concerns about the child remaining in the care of the first and second applicants. It is useful that I include that in the order.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 29 November 2022
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