Jones & Anor and Sontaren (No 2)

[2015] FamCA 435

FAMILY COURT OF AUSTRALIA

JONES AND ANOR & SONTAREN (NO 2) [2015] FamCA 435

FAMILY LAW – CHILDREN – Final Orders – undefended hearing – where mother deceased – where father failed to participate in proceedings – maternal aunt and uncle seek orders for equal shared parental responsibility – best interests of the children – protect the children from harm – maternal aunt and uncle able to offer secure and safe environment – orders made for equal shared parental responsibility.

Family Law Act 1975 (Cth) s 60B, 60CA, 60CC

1st APPLICANT: Ms Jones

2nd APPLICANT: Mr Montes

RESPONDENT: Mr Sontaren

FILE NUMBER: ADC 1178 of 2015

DATE DELIVERED: 5 June 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 5 June 2015

REPRESENTATION

COUNSEL FOR THE 1ST APPLICANT: Ms Dickson

SOLICITOR FOR THE 1ST APPLICANT: Norman Waterhouse Lawyers

COUNSEL FOR THE 2ND APPLICANT: Ms Dickson

SOLICTOR FOR THE 2ND APPLICANT: Norman Waterhouse Lawyers

COUNSEL FOR THE RESPONDENT: No appearance Litigant in Person

SOLICITOR FOR THE RESPONDENT:

Orders

For those reasons then, I make the following orders:

1. That the applicants Ms Jones and Mr Montes have equal shared parental responsibility for the children B born … 2013 and C born … 2014.

2. That the children live with the applicants Ms Jones and Mr Montes.

3. That all proceedings are removed from the Pending List of Cases.    

IT IS NOTED that publication of this judgment by this Court under the pseudonym < Jones and Anor & Sontaren > has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1178  of 2015

Ms Jones and Mr Montes

Applicant

And

Mr Sontaren

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The matter before me today involves parenting issues in respect of B born in 2013 and C born in 2014.  The applicants, Ms Jones and Mr Montes are the maternal aunt and uncle of the children.  The mother of B and C is a sister of Ms Jones.  There is uncertainty as to the parentage of the two children but, doing the best that they can and with the interests of the children at the forefront of their mind but also to ensure that the Court has all relevant information, it was the considered view of the applicants that Mr Sontaren, commonly referred to in the affidavit material as “[E],” is more likely than not to be the father of the children.

2. As a result of that proper disclosure by the applicants, significant effort has been made to ensure that at each stage of the process Mr Sontaren has been aware of the applications generally, the focus of the proceedings in particular, but importantly, that he has had an opportunity to engage in the proceedings.  I do not propose to go through the history of the matter in terms of the attempts to engage Mr Sontaren.  To some extent, that issue was the subject of determination by me in a hearing on 21 April 2015 when, in addition to various interim orders made, Mr Sontaren was put on notice as to the nature of the proceedings, generally, but that in particular, on the next occasion, namely, today, it was likely for the reasons given that orders would be made in favour of the applicants in terms of the final orders as sought.

3. Whilst it was unnecessary, but nonetheless, considered by the solicitors for the applicants to be an appropriate and perhaps final step, the orders made on 21 April 2015 and my reasons were served on Mr Sontaren.  The significant efforts undertaken by the applicants are set out and crystallised in an affidavit of the applicants’ solicitors, Ms G, filed 3 June 2015.  Given the orders that I made on 21 April 2015, it is not necessary that I traverse in detail the matters raised in that affidavit but the summary is that there can be no doubt Mr Sontaren is aware of the proceedings and, in particular, the orders that are likely to be made today.

4. He has chosen not to attend.  That is not intended to be a criticism but it may well be an indication that the Court can have some confidence in the orders being sought by the applicants and that they are not orders to which or against which Mr Sontaren would wish to be heard.  It may of course be an indication that Mr Sontaren does not consider that he is the father of the children.  They are matters for him but they are now not matters about which I think that this Court needs to be any further concerned.  The authorities are clear in respect of the opportunity that should be given to a potential party, particularly in respect of parenting orders, and that is that they need to be afforded an opportunity to be heard, not that they must be heard.  That opportunity has been afforded and that obligation in respect of the applicants is discharged.

5. Conveniently, I have significant evidence that would enable this matter to be resolved.  I note, in any event and for the avoidance of any doubt, the orders made by me on 21 April 2015, make it clear that the hearing today was to proceed on the basis of the information that was already resident on the Court file.  In particular, the documents that I have regard to today, over and above matters of procedural relevance to the nonattendance of Mr Sontaren, is clearly the Initiating Application filed by the applicants and the affidavit material of Ms Jones, filed 8 April 2015, and the more circumspect affidavit of her partner, Mr Montes, filed on the same date.

6. His affidavit does no more than to confirm that he has read and understood Ms Jones’ affidavit.  He agrees with the contents but, importantly, paragraph 6 of his affidavit summarises his position appropriately, namely, that he considers that the relationship that he and Ms Jones are in is a stable and committed one, having been of 10 years duration as at the date of the affidavit, that he, with Ms Jones, have together cared for these children on a regular basis prior to the death of their mother, Ms F on 23 January 2015. I am satisfied from the brief remarks as contained in his affidavit that he is a person who has the interests of these children at the forefront of his mind.  That is, notwithstanding the young age of these children, Mr Montes has committed himself to their care.

7. The history of the matter is adequately set out in a comprehensive affidavit of Ms Jones of 8 April 2015.  To a large degree I do not need to go through the detailed history but it is important to note that notwithstanding the age of these children now, their care by the applicants really commenced at a much earlier stage.  Indeed, paragraph 27 of the affidavit of Ms Jones confirms that from February 2014, when B was approximately seven months of age, both she and her partner commenced to care for him on a regular basis at their home and on occasion overnight. 

8. That process clearly was the subject of consent by the mother and it then became an increasing pattern in the lives of the children and the applicants. In terms of Ms Jones’ inability from time to time to deal with and/or to cope with the care of B, initially, but then both children, the default position was always that her sister and her sister’s partner willingly and readily cared for the children.  That process continued and following the health issues that adversely affected the mother and ultimately caused her death, the children remained in the care of the applicants thereafter.  Certainly as from 6 January 2015 the children remained in the care of the applicants.

9. Since the mother’s death on 23 January 2015 the applicants have done all that they can to engage Mr Sontaren.  They also provide significant insight into the personalities and developmental issues in respect of B and C and I have close and careful regard to the matters raised in paragraphs 66 to 75 of the affidavit of Ms Jones. 

10. Part VII of the Family Law Act 1975 (Cth) sets out the legal principles which govern parenting proceedings. The Court is required under s 60CA to have regard to the best interests of the child as the paramount consideration. I am mindful of the objects of Part VII that ensure the best interests of the child are considered and are as set out in s 60B(1) of the Act, namely:

    (a)Ensuring that children have the benefit of both of their parents, having  a meaningful involvement in their lives to the maximum extent with the best interests of the child;  and

    (b)Protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence;

    (c)Ensuring that children receive adequate and proper parenting to help them achieve their full potential;  and

    (d)Ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.

11. The determination of the best interests of children, where it is relevant and necessary, are properly considered pursuant to s 60CC and I have regard to the primary considerations as outlined in s 60CC(2) and the additional considerations in s 60CC(3).  As has already been the subject of remark by me in my reasons of 21 April 2015, obviously, those parts of Part VII that are directed towards “the parents” of a child or children do not apply in the circumstances of this case.  The maternal aunt and uncle are clearly not the parents of these children.  But as I indicated in my earlier remarks, that does not mean that there is not adequate and proper scope under s 60CC and Part VII, generally, to consider matters that are in the best interests of the children.

12. I am entirely satisfied that the safe and secure future of these children is properly in hand in the care of the applicants.  It is not simply to recognise that they are the only people who intend to care for these children.  If that were to be the only consideration it may well be sufficient but not necessarily conclusive.  Importantly in this case, I am satisfied that the matter goes further and that the evidence before me, uncontested and about which I have no uncertainty, is that not only are these applicants the only people that are likely to care for these children but they are also the best people to care for them.

13. In those circumstances, I have little hesitation in considering to finality the Initiating Application filed 8 April 2015.  The orders that are being sought are simple and straightforward.  It seems to me entirely appropriate that the applicants have equal shared parental responsibility for B and C and the order that then follows as a natural course and consequence is that the children live with the applicants.  No other orders are sought and it does not seem to me that there are any other orders that, indeed, should be sought. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 5 June 2015.

Associate: 

Date:  11 June 2015