F and D
[2005] FMCAfam 178
•4 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| F & D | [2005] FMCAfam 178 |
| FAMILY LAW – Parenting – no respondent – joint application for joint responsibility of same sex parents where mother has passed away – where the Court needs to consider s.68F(2) or s.65D(1) in considering what orders to make when applicants consent and there is no respondent. |
| Family Law Act 1975 (Cth), ss.61B; 61D; 64B; 65C; 65D; 65E; 68F |
| B v B (1997) 21 FamLR 676 |
| First Applicant: | RF |
| Second Applicant: | GD |
| File Number: | PAM 5460 of 2004 |
| Judgment of: | Emmett FM |
| Hearing date: | 4 March 2005 |
| Date of Last Submission: | 4 March 2005 |
| Delivered at: | Parramatta |
| Delivered on: | 4 March 2005 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Sullivan, Maurice Blackburn Cashman |
| Ex parte Application |
ORDERS
The children AF, TF and CF (“the Children”) reside with their father.
The Applicants share joint responsibility for the long term care, welfare and development of the Children.
The Applicants share joint responsibility for the day to day care, welfare and development of the Children.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 5460 of 2004
| RF |
First Applicant
And
| GD |
Second Applicant
REASONS FOR JUDGMENT
The Application
The Application filed on 1 November 2004 seeks orders that the Applicants have joint responsibility for day to day and long term care, welfare and development of the children.
The Applicants are the father and his de facto partner of the children AF 14, TF 12 and CF 8 (“the Children”). The Children’s mother tragically died in 1996 from breast cancer.
In support of their Application the Applicants rely on two Affidavits of RF sworn 7 October 2004 and 19 January 2005; 2 Affidavits of GD sworn 7 October 2004 and 19 January 2005; the Affidavit of BM sworn 20 January 2005 and the Affidavit of RC sworn 20 January 2005.
The Law
Pursuant to s.65C(1)(d) a parenting order in relation to a child may be applied for by, inter alia, a parent or ‘any other person concerned with the care welfare or development of the child’.
GD has lived with the Children since January 2003 in the capacity of their father’s partner and essentially the Children’s step-father and has been intricately involved in their day to day lives as deposed to in the Affidavits of each of the Applicants and indeed BM and RC. Accordingly, having regard to the evidence before me I am satisfied that GD is a person concerned with the care, welfare and development of the Children.
Pursuant to s.64B(6) a parenting order includes an order conferring on a person, whether alone or jointly with another person, responsibility for the long term care, welfare and development of a child or for the day to day care, welfare and development of a child.
Pursuant to s.65C RF, being a parent of the Children, and GD, being a person concerned with the care, welfare and development of the Children, are entitled to apply for a parenting order.
Section 65D(1) gives the Court power in proceedings for a parenting order to make such parenting order as it thinks proper.
Section 65E compels the Court, in deciding whether to make a parenting order, to regard the best interests of the Children as the paramount consideration.
In determining what orders are in the best interests of the Children the Court has regard to s.68F of the Family Law Act. In s.68F(2) various matters are identified for consideration. However, s.68F(3) states that where a Court is considering whether to make an order with the consent of all parties the Court is not required to have regard to all or any of the matters in subsection (2).
In the proceeding presently before the Court there is no Respondent and I am satisfied that the orders sought by the Applicants are consent orders for the purpose of s.68F(3). I am further satisfied that in the circumstances it is not necessary to consider particularly the matters referred to in s.68F(2), which are otherwise more relevant to a determination in a contested hearing of which orders are in the best interests of the Children.
In the circumstances I refer back to the requirements of s.65D(1) and s.65E in considering whether the orders sought by the Applicants for long term and day to day joint responsibility are proper.
Section 61B defines parental responsibility as meaning all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
Section 61D(1) states that a parenting order confers parental responsibility on a person, but only to the extent to which the order confers on a person duties, powers, responsibility or authority in relation to a child.
As identified in B v B (1997) 21 FamLR 676 the Full Court noted that an order providing for joint responsibility where parents are separated also recognizes the practical necessity for a resident or contact parent to make individual decisions when they have the sole physical care of the children. However generally, a joint responsibility order requires that consultation should occur between the parents in relation to major issues affecting the children such as major surgery, place of education, religion and the like. The same principles would apply in the proceedings presently before the Court in the event that joint responsibility orders are made.
The evidence
RF and GD state in their Affidavit evidence that the reason they seek such orders is largely because of the practical difficulty involved where GD cannot presently provide legal consent in respect of the Children both in relation to medical treatment or school arrangements.
RF also states that “despite GD participating fully in the day to day and long term development of my children there is no formal recognition of his role in this respect”. RF annexes to his Affidavit a copy of his will dated 12 October 2003 appointing GD as legal guardian of his Children.
GD in his Affidavit states that he sees himself as a co-parent of the Children, that he takes equal responsibility for their care and considers himself to be “a caring and concerned individual with love for the 3 children and a sincere concern to see them grow up as happy, healthy and well adjusted members of society”.
GD also refers to the present difficulty in being able to legally consent to medical treatment, after school care arrangements and school activities in respect of the Children particularly in any emergency where their father may not be readily contactable.
I note that GD also annexes to his Affidavit a copy of his will dated 20 October 2003 in which he appoints RF’s brother as guardian of the Children (this is consistent with the desire expressed by RF in his will in the event that GD predeceased him). GD also bequeaths his residuary estate (there being specific or general bequests) to the Children.
Both GD and RF have appointed RF’s brother to act as executor and trustee in the event the other has predeceased them.
I note Dr Khoo provided a certificate dated 17 January 2005 annexed to RF’s Affidavit. Dr Khoo stated that he had been the family doctor for the F family for 15 years, attended the Children since birth, that the Children are in good health and “have been very well cared for and nurtured at all times”.
I also note that AF and TF each won their local school citizen award in sixth grade and that CF won the most improved prize at the end of 2003 and the public speaking prize at the end of 2004. I note that RF referred in his Affidavit to early difficulties that CF was having with reading and the assistance provided to her with obvious success since early 2003 by GD.
Both Applicants refer to the fact that each of the Children calls GD G or dad and each refers to the Applicants together as “my dads”.
The successful parenting deposed to by the Applicants is whole heartedly supported by BM, being RF’s first cousin, in her Affidavit and by RC in her Affidavit.
RC concludes that GD has made a huge difference to RF and the Children’s lives; that the relationship between the Applicants appears very happy and stable and they have made a loving and supportive home for the Children, RC said that GD obviously loves the Children and has made them the top priority in his life. She observes that the Children seem to love GD and are very affectionate in return and she has been able to observe their obvious love and affection for him. RC concludes that “the children view GD as their parent and have respect for him in that role.”
RC has been a behaviour support teacher for 15 years working in special programs for students with emotional and behavioural disorders and has otherwise been teaching in NSW public schools for 23 years. She first met RF and his wife about 11 years ago. I place particular weight on the evidence of the observations of RC having regard to her experience and the length of time she has known the F family. Her evidence of her observations of the Children’s obvious growth in self confidence and positive adjustment to GD coupled with her conclusion that the Children are now happier, more relaxed and assured are of significant weight in considering whether orders that support the current arrangements are in the best interests of the Children.
RF gave evidence that his wife was estranged from her family at the time of her death. However RF has ensured that he and the Children spend Christmas Eve with the Children’s maternal grandparents where they have a meal together, exchange gifts and take photographs. RF said that the Children also see their grandparents at Easter and on the Children’s birthdays but that he is always the initiator of any contact. RF said that he has tried to ensure that the Children have ready access to their grandparents and would foster any contact sought either by the grandparents or the Children.
GD gave evidence that he has not met the grandparents in any formal sense but would certainly facilitate the Children in seeing the grandparents should either the grandparents or the Children express a wish to do. GD also said that he felt that the Children would be comfortable in raising such an issue with himself or their father. He further said that the Children happily discussed their mother with himself and their father and that he has taken them to the cemetery where their mother is buried.
Findings
The Children appear to have blossomed and flourished under the care of RF and GD who chronicle in their Affidavit material a home of organization, harmony, warm cooperation, shared responsibility, stability and peace for the Children.
It is rare to encounter the parenting qualities exhibited by each of the Applicants in this case. They are united and sensitive in their parenting approach and are to be unreservedly commended for the success they appear to be having in the healthy and stable environment they are providing and the consequent benefit of that environment to each of the Children in their development both short and long term.
I have observed each of the Applicants in the witness box. Each has a responsible position in the community related to the nursing industry and each has an obvious devotion to the other and to the welfare of each of the Children. Each is also aware of the importance to the Children in having the comfort of pursuing a relationship with their mother’s family, should they desire to have that opportunity. Each is also sensitive to the needs of the Children to talk about their mother and I am quite confident that any such discussions with RF and GD are a positive experience of the Children.
I am satisfied that together the Applicants provide security for the Children’s future in respect of their care both emotionally and financially.
In the circumstances, it is appropriate that GD’s parenting role be properly reflected in Orders for joint parental responsibility with RF for the day to day and long term care, welfare and development of the Children. Accordingly, I have no difficulty in being satisfied that the orders sought in the application are in the best interests of the Children and are otherwise proper orders for the purposes of s.65D(1).
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S Riddle
Date: 19 April 2005
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