Engberg
[2024] FedCFamC1F 871
•17 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Engberg [2024] FedCFamC1F 871
File number(s): MLC 15635 of 2024 Judgment of: BRASCH J Date of judgment: 17 December 2024 Catchwords: FAMILY LAW - CRITICAL INCIDENT LIST -Where the mother has passed away - Where the child conceived by sperm donor unknown to the applicant maternal grandparents -Where the applicants seek parental responsibility for the child - Where the applicants lived with the child and mother since child’s birth -Where major long term decisions required on an urgent basis -Where the Department and Police hold no child protection concerns or records about the child and applicants - Final Orders made Legislation: Australian Passports Act 2005 (Cth), s 11
Family Law Act 1975 (Cth) Part VII, s 60B, 60CA, 60CC, 60CC(2)(a), 60CC(2)(b), 60CC(2)(c), 60CC(2)(d), 60CC(2)(e), 60CC(2)(f), 60CC(2A), 65C, 65D(1), 65DA(2), 65DAB, 69ZBD
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 3.01
Division: Division 1 First Instance Number of paragraphs: 36 Date of hearing: 17 December 2024 Place: Brisbane Solicitor for the Applicants: Ms Learey ORDERS
MLC 15635 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ENGBERG
First Applicant
MS ENGBERG
Second Applicant
ORDER MADE BY:
BRASCH J
DATE OF ORDER:
17 DECEMBER 2024
THE COURT ORDERS THAT:
1.The child X born in 2019 ("X") live with the First Applicant MR ENGBERG and the Second Applicant MS ENGBERG ("the maternal grandparents").
2.Parental responsibility be allocated to the maternal grandparents for all major long term decisions in relation to X and they are able to exercise parental responsibility for all major long term decisions related to X including:-
(a)X's education (both current and future);
(b)X's religious and cultural upbringing;
(c)X's health (including obtaining private health insurance);
(d)Requesting that Medicare issue a card for X and claiming Medicare benefits for X;
(e)Obtaining a Passport for X and dealing with the Department of Foreign Affairs and Trade and visa providers;
(f)The Transport Accident Commission with respect to any entitlements X may have arising out of her mother’s death.
3.Pursuant to Section 11 of the Australian Passports Act 2005 (Cth), the maternal grandparents be hereby authorised to execute all documents necessary to obtain an Australian Passport and travel documents for and on behalf of X born in 2019.
4.The maternal grandparents have leave to provide a copy of these Orders to all service providers for X, including but not limited to X's school (including B School), treating medical practitioners, any other doctors, therapists, counsellors or allied health providers, government departments, health insurer (including C Health Insurance), passport and visa providers, and/or for securing financial support for X.
5.These Orders are authority for the maternal grandparents to schedule and consent to treatment, therapy, schooling, programs, services and the like for X and to give and receive such information from service providers as a parent would ordinarily receive.
6.In the event any wording in this Order constrains or otherwise fetters the maternal grandparent’s ability to deal with service providers for the child, they have liberty to approach chambers (with an affidavit) via (…@...) under r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) setting out the problem and proposing the relevant amendment/s.
AND THE COURT NOTES THAT:
A.X’s mother, MS D born in 1993, died in an accident in 2024.
B.X was conceived via sperm donation thought an IVF clinic. The identity of the biological father is unknown to the maternal grandparents and has had no involvement in X’s life to date.
C.The material received from the co-located officer from Victoria Police on 13 December 2024 has been marked as Exhibit 1 and the material received from the co-located officer from the Department of Families, Fairness and Housing on 16 December 2024 has been marked as Exhibit 2 and have been provided to the maternal grandparents.
D.That pursuant to s 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 "Parenting Orders - obligations, consequences and who can help" and these particulars are included in these Orders.
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 Engberg 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 correct for grammatical error and to make the oral word more amenable to reading.
X is five years old having been born in 2019. X’s mother, Ms D, died in an accident in 2024.
The applicants are her maternal grandparents, Mr Engberg born in 1967 and Ms Engberg born in 1968 (“the applicants”). They seek orders for parental responsibility so they can, amongst other major long term decisions, enrol X in school for the start of next year and have her included on their private health insurance.
OTHER PARTIES
X was conceived by sperm donation through an IVF clinic. The applicants depose that they have no information as to the details of the sperm donor and say that as far as they are aware, the donor and mother had no contact during her pregnancy and following X’s birth.
No father is listed on X’s birth certificate. X has been told that “a very special man helped to make her”. The mother was not in a relationship at the time of her death. Accordingly, it is hard to identify any other necessary parties (see r 3.01 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)) or adults concerned with the care, welfare and development as that phrase is understood within the terms of s 65C of the Family Law Act 1975 (Cth) (“the Act”).
MATERIAL AND CRITICAL INCIDENT LIST INCLUSION
The applicants filed their Initiating Application and affidavits on 11 December 2024. The matter was accepted into the Critical Incident List last week, with a first return today, 17 December 2024. I am satisfied the matter falls within the criteria for inclusion in the List because (a) X no longer has parents available to make major long term decisions for her, and (b) there is an urgency to ensuring X is enrolled to start school next month and be included on her grandparents’ private health insurance. Given X’s recent loss of her mother, the applicant grandparents may also need to organise further therapeutic supports for her.
I have received s 69ZBD reports from the Department of Families, Fairness and Housing (“Department”) and Victoria Police. I marked the Police Report as Exhibit 1 and the Department’s Report as Exhibit 2. Neither have any records of X or the grandparents. Further, on 13 December 2024, the Department conducted an interstate child protection history check via the 'Connect for Safety' portal. No records were located to indicate interstate child protection histories for X and/or her grandparents.
PROGRESSION OF THE MATTER
Ordinarily, on the first return of a Critical Incident List matter orders are made for service on other potential parties. For example, if the application comes from the maternal side of the child’s family, then relevant people on the paternal side will be served and given the opportunity to become involved. But that is not the case here.
X has the maternal grandparents with whom she lives and maternal uncles, who also live in the same area. There is no evidence before me about who may be on her paternal side and no evidence that X has ever engaged with them.
When there is no identifiable other party, and where the Department and Police have no records setting out any concerns about X or her grandparents, I see no need in delaying the finalisation of the matter by adjourning it off only to bring it back again with a view to making final orders. Instead, I will make final orders today.
LEGAL PRINCIPLES
Section 65D(1) of the Act provides that this Court may make such parenting orders as it thinks proper (subject to s 65DAB, which is irrelevant in this matter). Section 60B of the Act sets out the objects of Part VII, and they 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 60CA provides that the child’s best interests are the paramount consideration in making a parenting order.
X’S BEST INTERESTS
X and her mother lived with the maternal grandparents during the mother’s life and they have been involved in her care, support and day-to-day life since her birth.
X is aware of her mother’s passing in a traffic accident and is engaged with a counselling service for young children. Obviously, her grandparents did that.
Her mother struggled with various issues particularly in the last 12 months. She had borderline disorder and suffered from an organ disorder causing pain and regular infections. She was also on a program to address misuse of prescription medications and had had frequent hospitalisations.
Hence, the maternal grandparents depose they undertook significant care of X, and no doubt also the mother. They detail the day-to-day involvement with X, including waking her in the morning, feeding her and taking her to and often from kindy.
X is therefore well used to her maternal grandparents and their home, where she has her own bedroom and a good backyard for play – the applicants’ proposals will see her maintain this consistency albeit without her mother.
X has two maternal uncles who live in the same area with their partners. One uncle has a six month old son. The uncles assist with X as required, for example, collecting her from day care from time to time. I am told the uncles support this application.
X attends a kindergarten in the four-year-old program. However, X is due to commence her primary education in 2025. That is just about a month away.
The maternal grandparents approached B School in Suburb E to ascertain whether they would enrol X. They were given an initial indication that a position would be available for her, however they are required to complete Enrolment Forms and make decisions in relation to education which would normally be undertaken by a parent.
At this stage, they have been unable to complete the requirements for X's education and seek urgent Orders which enable them to have parental responsibility so they can enrol X to commence school for 2025 and attend to any other educational needs.
With respect to her health, the maternal grandparents have observed X to have hyper mobility, with falling over regularly, has difficulty regulating her emotions and has issues with concentration.
They wish to obtain a referral to a paediatrician for assessment to determine if X has a diagnosis or if some of these issues are trauma related.
They otherwise report that X is extremely bright and articulate and has a good memory.
Since the mother’s passing, the maternal grandparents have attempted to have X added to their health insurance policy with C Health Insurance. Initially they were informed a Medicare card, which included X, would be sufficient to do so. However, they have now been informed this cannot occur and that their health insurance provider will require a Court Order to add X to the policy. They are seeking Orders to enable this to occur as soon as possible, so that they can commence the necessary assessments and referrals for X.
Finally, they report that X is an active child. The maternal grandparents are therefore concerned that whilst arrangements are being made for X to be placed on their Medicare card, they do not have authority to make any medical decisions for X if she suffers an injury or is involved in an accident which requires her to undergo medical treatment.
I now turn to the specific s 60CC considerations.
Section 60CC(2)(a) is about promoting safety and is informed by s 60CC(2A). Exhibits 1 and 2 indicate no child concern records or any records in relation to X or her grandparents. Indeed, there is no evidence before me at all that there are any risks to X’s safety in the care of her grandparents. To the contrary, the application they bring is one designed to promote X’s safety by ensuring decisions can be made for her benefit such as specialist health care and engaging in schooling and education.
Section 60CC(2)(b) concerns X’s wishes, but at only five years old, she is too young to express anything of any weight.
Section 60CC(2)(c) and (d) go hand in hand. The applicants depose to her education needs, being to be enrolled at school. And X is to have further medical assessments. They already have X engaged in age-appropriate grief counselling and clearly understand X’s various needs having lived with her since birth.
By bringing this application the grandparents have also demonstrated the capacity to seek out the means by which they can meet X’s needs where parental responsibility would be otherwise required for major long term decisions.
Section 60CC(2)(e) – her relationship with parents and others who are significant to her - is something that now represents a great loss for the child with the death of her mother. I have no evidence about who the sperm donor may be, and the evidence is he had nothing to do with the mother during her pregnancy or upon X’s birth.
She does however have the maternal grandparents who have lived with her since birth and two uncles in the vicinity of her residence. One uncle has a baby which will provide, in time, the prospect of a sibling-like relationship between the two or at least a bond as cousins.
The adults in X’s life are all benefits to her, particularly in this fraught time.
Section 60CC(2)(f) is a catch-all anything else consideration. Not only has X lost her mother, but the applicants have lost their daughter; they too need to grieve. In the circumstances already described, including the lack of concerns in Exhibit 1 and 2 and the lack of a potential paternal party, I consider it in X’s best interests that the applicants are freed from further court attendances, and I will make final orders today.
I will therefore make the orders as discussed with Ms Learey prior to the giving of these reasons.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 17 December 2024
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