Hicks and Hicks and Anor - [2013] FCCA 495

FEDERAL CIRCUIT COURT OF AUSTRALIA

HICKS & HICKS & ANOR

[2013] FCCA 495

Catchwords:
FAMILY LAW – Parenting – application by paternal aunt – mother deceased – father taken away by [E] government officials – not seen since – no respondent to the application – whether justiciable dispute – best interests of children – name change.

Legislation:
Births, Deaths and Marriages Registration Act 1996 (Vic), ss.26, 28
Family Law Act 1975, ss.11F, 60B, 60CA, 60CC, 61DA

Cases cited:
Arabatzis & Severino [2013] FamCA 117
Kenneally & Kenneally & Anor (2012) 269 FLR 171; [2012] FMCAfam 921
Re Nayak [2011] FamCA 491

Applicant:

MS HICKS

First Respondent:

MR HICKS

Second Respondent:

MS ORDELL

File Number:

MLC 511 of 2013

Judgment of:

Judge Riley

Hearing dates:

26 March 2013, 9 and 24 April 2013 and 7 June 2013

Date of Last Submission:

7 June 2013

Delivered at:

Melbourne

Delivered on:

13 June 2013

REPRESENTATION

Counsel for the Applicant:

Dr Alexander

Solicitors for the Applicant:

Monash Oakleigh Legal Service

Counsel for the First Respondent:

No appearance

Solicitors for the First Respondent:

The first respondent was not represented

Counsel for the Second Respondent:

No appearance

Solicitors for the Second Respondent:

The second respondent was not represented

ORDERS

The applicant have sole parental responsibility for [U] born [in] 1995, [V] born [in] 1997, [W] born [in] 1999, [X] born [in] 2001, [Y] born [in] 2004 and [Z] born [in] 2008 (“the children”).
The children live with the applicant.
There be liberty to apply in relation to the names of each of the children.

IT IS NOTED that publication of this judgment under the pseudonym Hicks & Hicks & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
MELBOURNE

MLC 511 of 2013

MS HICKS

Applicant

And

MR HICKS

First Respondent

MS ORDELL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for parenting orders in respect of [U] born [in] 1995, [V] born [in] 1997, [W] born [in] 1999, [X] born [in] 2001, [Y] born [in] 2004 and [Z] born [in] 2008 (“the children”).
The six children were apparently all born in [E]. They range in age from almost 18 years to five years old. They came to Australia with the applicant, who is their paternal aunt, on 7 May 2011.
The applicant seeks orders that:
a)she have sole parental responsibility for the children;
b)the children live with her; and
c)each of the children have added to his or her name the family name of Hicks.
The person named as the second respondent is the children’s mother. The applicant said in her affidavit sworn on 24 January 2013 that the children’s mother died in [E] on 5 March 2010. The applicant exhibited a death certificate which appears to be in respect of the children’s mother. It indicates that she died of a sickness. As she is dead, the children’s mother cannot be a respondent to this proceeding.
The first respondent is the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hicks and Hicks and Anor

Details

AGLC: HICKS & HICKS & ANOR [2013] FCCA 495
Case: [2013] FCCA 495
Decision Date: 13 June 2013

CaseChat Overview and Summary

This matter concerned an application by the paternal aunt, Ms Hicks, for final orders regarding the parental responsibility and residence of six children, as well as a change of surname for each child. Ms Hicks brought the children to live with her in Australia following the death of their mother in 2010 and the disappearance of their father in 2007. The court was presided over by Judge Riley.

The legal issues before the court were whether Ms Hicks should have sole parental responsibility for the children, whether the children should live with her, and whether their surname should be changed to "Hicks". The court also considered the children's well-being, their adjustment to life in Australia, their relationships with their aunt and extended family, and their expressed wishes regarding their surname.

Judge Riley's reasoning focused on the best interests of the children. The court noted the strong affectionate ties between the children and their aunt, who had provided significant financial and emotional support. The children expressed happiness living with their aunt in Australia, finding life there to offer greater opportunities and a more positive future than their previous circumstances. Their expressed wish to change their surname to "Hicks" was seen as a way to strengthen their connection to their father and their new identity in Australia. The court also acknowledged the current accommodation was not ideal for six children and noted the children's resilience and positive outlook despite past trauma.

The court ordered that the applicant, Ms Hicks, have sole parental responsibility for the six children and that the children live with her. Liberty to apply was granted in relation to the names of each of the children.

Orders

Orders of the court

The applicant have sole parental responsibility for [U] born [in] 1995, [V] born [in] 1997, [W] born [in] 1999, [X] born [in] 2001, [Y] born [in] 2004 and [Z] born [in] 2008 (“the children”).

The children live with the applicant.

There be liberty to apply in relation to the names of each of the children.

Background

Background to the litigation

When the matter returned to court on 9 April 2013, I made orders for counselling under s.11F of the Family Law Act 1975. That occurred on 7 May 2013. The counsellor reported as follows:BackgroundThe current matter involves the application of the paternal aunt, Ms Hicks for Final Orders on the following:· For the paternal aunt to have sole parental responsibility of the children· for the children to live with their paternal aunt· That the surname of the children be changed to “Hicks”Ms Hicks brought the children to live with her in Australia following the death of their mother (in 2010) and the disappearance of their father (in 2007).Current situation· Currently the six children live with the paternal aunt in a three bedroom community housing home in [suburb omitted]. Ms Hicks reports the family is on a waiting list for a five bedroom home.· The children attend school in [L]; the three older children attend [L] Secondary School and the three younger children attend [L] Primary School. Ms Hicks reports the children are all doing well at school.· Ms Hicks has three adult children who live independently in nearby suburbs.· Ms Hicks reports that she is applying for sole parental responsibility for the children, and for the children to live with her in order to provide the children with a sense of long term security. She reports that the decision to change the children’s surname to “Hicks” is a way of remembering the children’s father as his surname was “Hicks”, as is the paternal aunt’s. · Ms Hicks also reported that the children would like to use their new names in their applications for Australian citizenship.Summary of agreement(s) reached· The children all agreed that they loved living with their aunt, that they wanted to continue living with their aunt, and that they would like to change their name to “Hicks” as this was their father’s name. Family safety factors· There are no safety concerns.Issues relating to the children· The older children were interviewed separately and [Y] and [Z] were interviewed together. However the children’s reports were very similar and so are summarised together here.· Several of the older children reported that they were very happy when their aunt invited them to come and live with her in Australia. They reported that their family had strong affectionate ties to their aunt and that following the death of their mother the aunt had been instrumental in providing financial and emotional support to the children. · The older children acknowledged that the transition to Australia from [E] was difficult due to language difficulties. The children reported that their school was extremely supportive and provided English as a Second Language classes to assist the children. · The children were all very positive about their school experiences and extracurricular activities. All of the children report being happier in Australia than in [E].· The children report their links to extended family is important to them. They report that they frequently visit the cousins that live in Australia and are able to keep in touch with friends and family members in [E] through email and telephone contact.· The children have contact with the wider [E] community in Melbourne through participation in cultural celebrations such as Independence Day and an annual [E] Festival. · Ms Hicks reports that the children are Muslim but that they do not attend Islam school and observe religious practices at home. [U] and [V] reported their religious practice is not strict but is no different to what they were used to doing in [E].Summary;· The children were well presented in both a physical sense and in their personal conduct; they were very polite and well-mannered.· The children have experienced trauma and this would explain the high degree of compliance and cooperation both displayed and reported by the children.· It was clear from their accounts that life in Australia far exceeds the experiences and opportunities offered by life in [E] and the warm relationship the children have with their aunt has helped them to feel optimistic about their future. · The children all reported a strong future focus with an emphasis on professional goals.· It appears that the name change to “Hicks” will provide the children with not only a stronger connection to their father but also a stronger connection to their new lives and identities in Australia.· It should also be noted that the current accommodation (featuring three bedrooms) does not meet the developmental needs of six children, and in particular [X], who will find the lack of privacy increasingly difficult as he matures. Recommendations:· That the children live with their paternal aunt.· That the children be able to add “Hicks” to the end of their name.· If the Court were to release this document to the Department of Housing, it is hoped this might expedite the application for more appropriate accommodation.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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