KENNEALLY & KENNEALLY & ALLEN
[2012] FMCAfam 921
•20 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KENNEALLY & KENNEALLY & ALLEN | [2012] FMCAfam 921 |
| FAMILY LAW – Parenting – both parents deceased – jurisdiction of Court where there is no Respondent. |
| Family Law Act 1975, ss.4, 60B, 60CC, 60H, 61DA, 64B, 64C, 65C, 65D, 65DAA(5), 65G, 67ZC, 68L, 69ZN, 69ZQ, 69ZX Guardianship Act 1987 (NSW), ss.9, 71 Children and Young Persons (Care and Protection) Act 1998 (NSW), ss.8, 9 Judiciary Act1903, s.2 Acts Interpretation Act 1901, s.15AB Commonwealth Powers (Family Law – Children) Act 1986, s.3 Infants Custody and Settlement Act 1899 International Convention on the Rights of the Child, Articles 3, 5, 8, 12, 24 and 26 Magna Carta clause 40 |
| Re K (1994) FLC 92-461 Harper & Brymer (1987) FLC 91-804 YYYYY & YYYYY [2000] FamCA 1711 P and P (1995) FLC 92-615 Secretary, Department of Health and Community Services v JWB & SMB (1992) FLC 92-293 Gillick v West Norfolk AHA [1986] AC 112 Re Rosie (Special Medical Procedure) [2011] FamCA 63 Re: Jamie (Special medical procedure) [2011] FamCA 248 Re: Baby D (No. 2) (2011) 54 Fam LR 313 Re: Bernadette [2010] FamCA 94 LNS v Persons Unknown [2010] EWHC 119 (QB) Re Mark: an application relating to parental responsibilities [2003] FamCA 822 F & D [2005] FMCAfam 178 Re Jessie & Matthew: Residence application[2004] FMCAfam 656 Nayak [2011] FamCA 491 AIF v AMS [1999] HCA 26 Minister for Immigration and Multicultural and Indigenous Affairs v B and Another (2004) 219 CLR 365 In re X (A Minor) [1975] Fam 47 R v Davison (1954) 90 CLR 353 Huddart, Parker & Co. Pty. Ltd. v. Moorehead (1908) 8 CLR 330 Labour Relations Board of Saskatchewan v. John East Iron Works Ltd. (1949) AC 134 The Queen v. Local Government Board (1902) 2 IR 349 Adkins v Children's Hospital of D C [1923] USSC 78 Muskrat v. United States [1902] USSC 164 Prentis v. Atlantic Coast Line Co. [1908] USSC 154 Shell Company of Australia v Federal Commissioner of Taxation (1930) 44 CLR 530 Queen Victoria Memorial Hospital v Thornton (1953) 87 CLR 144 |
| Applicant: | MR KENNEALLY |
| Respondents: | MR KENNEALLY (DECEASED) AND MS ALLEN (DECEASED) |
| File Number: | PAC 2870 of 2012 |
| Judgment of: | Harman FM |
| Hearing date: | 20 August 2012 |
| Date of Last Submission: | 20 August 2012 |
| Delivered at: | Parramatta |
| Delivered on: | 20 August 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Legal Aid Commission of New South Wales |
| Respondents: | No Appearance |
ORDERS
The Paternal Uncle, Mr Kenneally born (omitted) 1980, shall have sole parental responsibility for the child, X born (omitted) 2002.
The child shall live with the Paternal Uncle.
Noted: The Paternal Uncle, Mr Kenneally born (omitted) 1980, is and shall be the only person with ‘parental responsibility’ of the child, X born (omitted) 2002, for the purpose of applying for, and being issued with, an Australian Passport.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same or securely destroyed.
All outstanding issues are removed from the list of matters awaiting hearing.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Federal Magistrate Harman delivered this day will for all publication and reporting purposes be referred to as Kenneally & Kenneally & Allen.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 2870 of 2012
| MR KENNEALLY |
Applicant
And
| MR KENNEALLY (DECEASED) AND MS ALLEN (DECEASED) |
Respondent
REASONS FOR JUDGMENT
These are proceedings commenced by Application filed 6 July 2012. The Applicant in the proceedings, Mr Kenneally, is the paternal uncle of the child the subject of the proceedings.
The child the subject of the proceedings is X born (omitted) 2002 and, accordingly, is not yet 10 years of age.
The circumstances of this case are decidedly tragic. The young child, X, is the sole surviving member of her family. Both her mother and father, together with the Applicant’s wife and child, were killed as a consequence of a maritime disaster off Christmas Island on 15 December 2010 and whilst attempting to enter Australia.
The Applicant had entered Australia some short time before and on 20 October 2010. The Applicant now has the relevant legal status within the Australian community to remain without fear of deportation or other expulsion.
Jurisdiction
A significant issue arises in the proceedings as to whether the Court, in fact, has jurisdiction to make the order sought, these being proceedings in which there is an Applicant but no other party and thus potentially no judiciable issue for the Court to determine.
In the absence of an exercise of jurisdiction by this Court there may, potentially, be other jurisdictions which could be utilised by the Applicant to obtain some security for the child’s placement in his care and it being noted that the child is presently in his care.
Under New South Wales law there would be the potential for an Application under the Guardianship Act 1987. However, section 9 of that legislation makes clear that an Application cannot be made for a guardianship order with respect to a person under the age of 16 years.
It would be possible for an Application to be made under the Children and Young Persons (Care and Protection) Act 1998 (NSW). Section 71(a) provides, with respect to the grounds for a care order, a ground whereby:
there is no parent available to care for the child or young person as a result of death or incapacity or for any other reason
I am not satisfied, however, that this would be an appropriate path particularly as, since the 1998 amendments, the arrangement wherein this child resides with his uncle is not what had been described in previous wording of that legislation as “an unauthorised foster placement”. Further, I am satisfied that it would be an unnecessarily invasive process. It would be difficult to understand or comprehend circumstances in which the Department of Family and Community Services would wish to instigate proceedings in these circumstances noting that the child could not otherwise possibly be described as being in need of care (being more than adequately cared for by her uncle). Nor could she be described as a child at risk.
It would be, in short, be a waste of the Department’s resources and, to a large extent, an affront to the uncle who is caring for his niece in a perfectly appropriate and culturally appropriate fashion.
Similarly, I am not satisfied that an Independent Children’s Lawyer could or should be appointed in these proceedings (and then only as a matter of caution to ensure that the child’s best interests are met). That would, again, be an affront to the uncle’s care of this child and to suggest, by reference to Re K (1994) FLC 92-461 and section 68L, that the child’s best interests and general welfare were and are not represented by him as her relative and uncle.
Nothing, unfortunately, can change the fact that there is no Respondent to these proceedings as both parents are deceased.
By reference to the Judiciary Act 1903 and section 2 thereof, there is some suggestion that proceedings cannot be maintained before a Court unless there are parties, in the plural, to those proceedings and being an Applicant and a Respondent. Section 2 defines a “Cause” as including “…any suit, including criminal proceedings”. A “Suit” is then further defined as “…any action or original proceedings between parties” [emphasis added].Thus there is suggestion, inferentially if nothing else, that it is necessary for there to be at least two parties between whom a dispute has arisen and thus a judiciable issue for determination by the Court.
Some further basis for that view is provided by Harper & Brymer (1987) FLC 91-804 a decision of Fogarty J. Those proceedings dealt with an Application in similar circumstances to these wherein both parents were deceased. However, his Honour’s decision, in my mind, can be distinguished in that the determination as to a want of jurisdiction was based not upon a concern as to the absence of a Respondent per se, but the specific legislative definition of “matrimonial cause” then contained in section 4(1) of the Family Law Act. His Honour opined:
The jurisdiction of this Court is statutory and for relevant purposes can be traced through sec. 31(1), 39(1) to the definitions of “matrimonial cause” contained in sec. 4(1) of the Family Law Act.
Clearly there is no marriage and no party to a marriage before the Court in these proceedings. By reference to the present definition of matrimonial cause contained in section 4, these proceedings could not be founded upon a matrimonial cause there being no party to the marriage surviving.
By reference to section 15AB of the Acts Interpretation Act 1901 I am satisfied that one can and should turn to the investiture of jurisdiction that arise from the referral of powers made by each of the states and territories and, in the case of New South Wales, by the Commonwealth Powers (Family Law – Children) Act 1986. Section 3 of that legislation referred to the Commonwealth the jurisdiction that then existed regarding the custody and guardianship of and access to children as was then contained within the Infants Custody and Settlement Act 1899. Section 5 of that legislation at subsection 7 provided:
In any case in which a parent of a minor is dead, the court may, on the application of any relative of that parent, make such order as to access to the minor by such relative as to the court seems fit.
The above provision would suggest, or at least infer, that proceedings could be maintained in the absence of plural parties.
Section 4 of the Family Law Act in its definition of “proceedings” suggests the same. It defines proceedings as:
a proceeding in a court, whether between parties or not [emphasis added], and includes cross-proceedings or an incidental proceeding in the course of or in connexion with a proceeding.
That definition gives perhaps the first inkling that it is anticipated that proceedings might arise and a judiciable issue be thus presented without the requirement that there be a Respondent to an Application.
There are a number of authorities decided by reference to the Family Law Act wherein there has been only an Applicant or Applicants and no Respondent.
In YYYYY & YYYYY [2000] FamCA 1711 a decision of Hannon J as anonymised, an Application had been brought by the parents of a child within the Court’s parens patriae jurisdiction. That decision followed shortly after the matter of P and P (1995) FLC 92-615. His Honour, in YYYYY, was not troubled by and did not raise any concern as to his jurisdiction, absent a Respondent to the proceedings.
His Honour referred to a body of case law which had accumulated prior thereto and in particular to Marion’s Case, otherwise reported as Secretary, Department of Health and Community Services v JWB & SMB (1992) FLC 92-293. His Honour thereafter turned to the Competency Test established in Gillick v West Norfolk AHA [1986] AC 112 as well as a number of other decisions dealing with special medical procedures. It is to be noted, however, that this case, together with decisions of Dessau J in Re Rosie (Special Medical Procedure) [2011] FamCA 63 and Re: Jamie (Special medical procedure) [2011] FamCA 248, Young J in Re: Baby D (No. 2) (2011) 54 Fam LR 313, and Collier J in Re: Bernadette [2010] FamCA 94, all accepted that jurisdiction was vested in the Court without a Respondent by virtue of the parens patriae jurisdiction and the provisions of section 67ZC.
In each of those cases the Court was dealing with, essentially, an interference with parental responsibility and its exercise by parents or those seized with the care of children and thus within the limited context of that exercise of specialised jurisdiction. There may well be some doubt as to whether those authorities could, accordingly, lend support, tacit or otherwise, to the proposition that proceedings can be maintained in broader circumstances such as the Court’s exercise of jurisdiction in the allocation of parental responsibility or the making of an order in favour of a person other than a parent for a child to live with them without a Respondent (and presumably a parent).
The English and Wales High Court Queens Bench Division in the decision of LNS v Persons Unknown [2010] EWHC 119 (QB) also proceeded, albeit in a non-family law context, and with an extensive discussion therein of relevant authorities, without any named or nominated Respondent.
Surrogacy cases also provide some support and assistance and in particular the decision of Brown J in Re Mark: an application relating to parental responsibilities [2003] FamCA 822. However, in that case it was made clear by her Honour that whilst the surrogate parents of the child were the Applicants the surrogate and birth mother was a person known to them and she had, in fact, been served but elected to take no part in the proceedings. Accordingly whilst that decision and the extensive and excellent discussion of authorities therein are of some value and support, it might be readily distinguished.
There have been a number of instances wherein decisions have been made by judicial officers absent any named or clearly identified Respondent. In F& D [2005] FMCAfam 178, Emmett FM had proceeded to deal with an Application made jointly by the father of a child and his de facto partner and in circumstances where the child’s mother was deceased. That circumstance of itself meant that there was no Respondent but purely a first and second Applicant. It would be a fiction and a nonsense to suggest, in such circumstances, that a judiciable dispute, using that term in a broad sense, could be manufactured by the parties naming each other rather than as co-Applicants as an Applicant and Respondent.
Her Honour stated at paragraph 11:
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).
Section 68F(3) is now incorporated within s.60CC(5).
Whilst her Honour’s decision provides some comfort to me as to the appropriateness of assuming jurisdiction in this case, Her Honour does not discuss in any further detail the basis upon which the absence of a Respondent is considered insufficient to absent jurisdiction.
Similarly, Walters FM in Re Jessie & Matthew: Residence application[2004] FMCAfam 656 had dealt with a residence application in which there were two Applicants but no Respondent. That case had arisen in circumstances whereby an unknown (anonymous) person had donated the biological material which had aided conception. One of the two Applicants was the birth mother of the child and by reference to section 60H each of the Applicants were parents of the child.
His Honour made clear that in circumstances wherein the biological father could not be served that he was satisfied that the matter could and should proceed before him. Perhaps for abundant caution his Honour remarked at paragraph 19 that:
In my opinion, and in the circumstances of this case, the fact that the biological father of the twins has not been served with the application has no bearing upon the Court's ability to hear and determine the issue now before it. To the extent that it may be necessary for me to do so, I find that service of the application on the twins' biological father should be dispensed with.
Accordingly it might again be suggested that this authority had accepted that a Respondent existed but could not be identified and thus service was dispensed with.
The Legal Representative for the Applicant has provided to the Court this morning a decision of Cronin J in Nayak [2011] FamCA 491 which similarly, and in circumstances analogous to these, proceeded with an Application for parenting orders by a relative of a children in circumstances whereby both parents were deceased. Cronin J was satisfied that jurisdiction was established. It is tempting for me to proceed purely on that basis that if His Honour were satisfied, he being a far greater legal mind than I, that I should be also so satisfied. His Honour, without intending any criticism whatsoever, did not expand upon the basis upon which that assumption of jurisdiction was made but I have some real comfort that such an esteemed judicial officer has adopted that course and that circumstance provides some real comfort to me in light of the authorities which otherwise are available.
Perhaps the beginning of the valid assumption and exercise of jurisdiction in circumstances such as these arises from the High Court’s decisions in AIF v AMS [1999] HCA 26 and Minister for Immigration and Multicultural and Indigenous Affairs v B and Another (2004) 219 CLR 365.
In AMS & AIF the Court referred to the decision of Sir John Pennycuick in the case of In re X (A Minor) [1975] Fam 47 as indicating that the Court had jurisdiction:
“necessary for the welfare of a [child]” or, perhaps, more accurately, orders which are appropriate and adapted to avert a risk to the child’s wellbeing”.
Each of the above authorities referred to the High Court’s decision and particularly that of the majority comprising Dixon CJ and McTiernan J in R v Davison (1954) 90 CLR 353. Whilst that decision is well before the commencement of the Family Law Act and dealt with circumstances entirely different (dealing in fact with establishing jurisdiction or absence thereof with respect to the making of a sequestration order on a debtor’s petition) their Honours made clear, in an erudite and detailed discussion, the nature and meaning of judicial power. Their Honours were satisfied that proceedings could proceed and that circumstances could readily be envisaged, including those the subject matter of that case, in which there was only an Applicant and no Respondent.
In that decision their Honours referred to the discussion of Griffith CJ in earlier authorities such as Huddart, Parker & Co. Pty. Ltd. v. Moorehead (1908) 8 CLR 330 as well as a discussion of that decision and adoption of same in Labour Relations Board of Saskatchewan v. John East Iron Works Ltd. (1949) AC 134. In Huddart Griffith CJ he had opined:
I am of opinion that the words 'judicial power' as used in s. 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.
This passage suggests the necessity of parties plural. However, further discussion of that dictum was undertaken by Chief Baron in The Queen v. Local Government Board (1902) 2 IR 349 in which it was said:
I have always thought that to erect a tribunal into a 'Court' or 'jurisdiction', so as to make its determinations judicial, the essential element is that it should have power, by its determination within jurisdiction, to impose liability or affect rights.
Clearly in this circumstance what is sought to be affected are the rights of this child and the rights of this Applicant. Further discussion then occurred with respect to a number of United States authorities including the decision of Sutherland J in Adkins v Children's Hospital of D C [1923] USSC 78, Miller J in Muskrat v. United States [1902] USSC 164 as well as a discussion of Holmes J in Prentis v. Atlantic Coast Line Co. [1908] USSC 154.
Their Honours went on to discuss the Privy Council’s decision in Shell Company of Australia v Federal Commissioner of Taxation (1930) 44 CLR 530 as well as the authorities already referred to above. Their Honours then turned to Blackstone’s definition of judicial authority in the following terms:
In every Court there must be at least three constituent parts, the actor, reus, and judex: the actor, or plaintiff, who complains of an injury done; the reus, or defendant, who is called upon to make satisfaction for it; and the judex, or judicial power, which is to examine the truth of the fact, to determine the law arising upon that fact, and, if any injury appears to have been done, to ascertain, and by its officers to apply the remedy.
However, their Honours then went on to clearly state that in the circumstances of the case before them (dealing with a sequestration order made on a debtor’s petition and with no other party) that they were satisfied that, notwithstanding the definition advanced by Blackstone and prior determinations reliant thereupon, that a broader application of the principle of judicial power should apply and so as to accept proceedings which occurred absent that element which Blackstone had identified as necessary and being a defendant.
Their Honours had also referred to Queen Victoria Memorial Hospital v Thornton (1953) 87 CLR 144 and had observed that many functions may be committed to a Court which are not themselves exclusively judicial and identifying further instances of judicial power absent a respondent such as an application for a grant of probate. By reference to these examples the majority accepted that proceedings can and could occur in the absence of a defendant or respondent.
I am satisfied that this is one such circumstance. In that regard and by reference to the above I note a number of provisions are of some relevance.
Equitable principles, to the extent that they might have any application to informing the exercise of the Court’s jurisdiction, would include the fundamental maxim “equity will not suffer an injustice”. There is also the equitable principle that “equity will not suffer a wrong to be without a remedy”.
One could infer that for a wrong to have occurred that there must then be a person against whom action or suit would be commenced and maintained such as to address that wrong. However, I am satisfied, particularly as no other available remedy would exist and by reference to the objects and principles contained within section 60B of the Family Law Act, that a wrong would arise as regards the rights of this child if jurisdiction were not exercised by this Court.
I am satisfied that these are proceedings properly before the Court.
Section 65C establishes those persons who might commence proceedings. It is in the following terms:
A parenting order in relation to a child may be applied for by:
(a) either or both of the child's parents
(b) the child; or
(ba) a grandparent of the child; or
(c) any other person concerned with the care, welfare or development of the child.
The tragic circumstances of this case are such that this child has available to her only one member of her extended family and being her paternal uncle, the Applicant in these proceedings. In those circumstances I am more than satisfied that there is standing in the Applicant to bring these proceedings.
That being so, the Court is required to commence by consideration of the objects and principles set out in section 60B. Those objects and principles, to the extent that they are relevant to this Application, commenced as these proceedings are after 7 June 2012, incorporate all of the provisions of the International Convention on the Rights of the Child.
A number of those provisions are of relevance to these proceedings. In particular I am satisfied that Articles 3, 5, 8, 12, 24 and 26 have some specific application.
Further to the objects and lest there be any remaining or lingering doubt in the Court’s mind as to jurisdiction I am satisfied that the most fundamental principle of law as contained within clause 40 of Magna Carta would compel the assumption of jurisdiction with respect to the determination of the child’s future care and welfare and being the principle that Judicial Authority shall “…to no one deny or delay right or justice”.
I am satisfied that any failure to take action in these proceedings would be to deny justice not only to the Applicant but to this child. In that regard the objects and principles also establish that children should receive adequate and proper parenting. I am more than satisfied on the evidence available this child is receiving abundantly adequate and proper parenting from the only relative available to provide same to her.
I am also satisfied as to jurisdiction by reference to the principles established under Division 12A and in particular section 69ZN, 69ZQ and 69ZX. The principles for the conduct of child-related proceedings are designed to ensure that the needs of the child, and the impact of the proceedings upon the child, are taken into account in determining the conduct of the proceedings. I am satisfied that I can and should, by reference to the High Court authorities to which I have referred, assume jurisdiction and proceed to make orders in these proceedings.
Section 64B of the legislation provides definition as to a parenting order. It provides that a parenting order may deal with one or more of the following:
(a) the person or persons with whom a child is to live.
No delineation or prioritisation of parents as against others is created therein. The section also provides that the Court can make an order as to the allocation of parental responsibility. Again, no distinction is drawn as to the person in whose favour such allocation may occur notwithstanding section 61DA, which creates a presumption of equal shared parental responsibility as between a child’s parents.
Section 64C goes on to indicate that:
A parenting order in relation to a child may be made in favour of a parent of the child or some other person.
In this circumstance there is simply no person who could possibly be named as a Respondent. It would not be appropriate, although it is not in any way a criticism of those who have drafted the Application, to make an order as is proposed to dispense with service upon each of this child’s parents. They are deceased. Accordingly, one cannot dispense with service upon them. However, as I have indicated, that is not a criticism but purely it is accepted that that is a step that has been taken by reference to the above authorities and to endeavour to ensure that no bar to jurisdiction might be perceived.
Section 65D provides that the Court has a power to make such parenting order as it thinks proper. I am satisfied that the legislative provisions of the Family Law Act can and should apply to determine those rights.
I am not satisfied that these are proceedings which would strictly fall within the ambit of that envisaged by section 67ZC. They are not proceedings regarding the child’s welfare but the allocation of parental responsibility and a determination of the child’s future living arrangements.
I am also satisfied that the requirements of section 65G, being the creation of special conditions for the making of a parenting allocating parental responsibility in favour of a non-parent, should be dispensed with. I am satisfied in that regard on the basis that there is no other person who could possibly meet this child’s best interests and, in any event, the child’s best interests are being more than adequately met by this man who has taken on this responsibility in the most tragic of circumstances.
I am also satisfied by reference to section 69ZQ and section 69ZX that the Court’s general duties and powers relating to evidence, as well as the Court’s obligations with respect to the conduct of the proceedings and general duties therein, can and would support the exercise of jurisdiction in the determination of these proceedings at the earliest available opportunity.
Legislative pathway
As was observed by Emmett J (in the authority to which I have referred above) these are proceedings with the consent of the only possible and available party and thus the Court, by section 60CC(5), is not required to consider all matters contained in sections 60CC(2)-(4). However, I am satisfied that I can and should have some regard to them, particularly to observe that the majority of considerations under section 60CC have a focus upon and are specifically directed to parents and accordingly would have limited application in this context.
The primary considerations under section 60CC(2) are the benefit of the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm. I am not satisfied that this child is, has or will be exposed to any form of abuse, neglect or family violence in her Uncle’s care. Indeed, on the evidence available, I am satisfied that this child is best protected from psychological harm by having the care, nurture and support of her only remaining relative and by orders being made at the first available opportunity, that is today, which conclude the proceedings and give some certainty in that regard.
Clearly nothing further can be done to create a present and ongoing meaningful relationship between the child and her parents. However, the best that can be done is for this child to be cared for and nurtured by the family which remains to her. That will enable this child’s parents, her culture, and her entire extended family to remain alive in her mind.
The additional considerations under section 60CC(3) again lend support to the Application.
(a) Views
This child clearly has experienced the most traumatic of events, not only the loss of her parents but having been shipwrecked off Christmas Island and the corresponding nightmare that this must have been for her. In those circumstances and noting the evidence supports her desire to remain continuing in the care of her uncle that is the only order that can or should be contemplated.
(b) Nature of the child’s relationship with each parent and other persons
This child clearly had an excellent relationship with each of her parents and she will continue that, at least as a lived and supported memory, through the orders proposed by the uncle and she will also continue to have a most excellent relationship with her uncle.
(c) and (ca)
These are not relevant.
(d) Likely effect of change.
I am satisfied it would be catastrophic for this child to be removed from her uncle’s care. She is living with her only surviving relative and is having her needs met physically, emotionally and intellectually to an excellent level. Interference with that care should not be contemplated.
(e) Practical difficulty and expense
This is not relevant.
(f) Capacity
I am satisfied that the Applicant has a more than manifest capacity to meet this child’s needs and, indeed, is a most loving, caring and devoted guardian to this child.
(g) Maturity, sex, lifestyle and background
This young person is from a cultural background which will be continued through her association with her uncle. The culture from which both this child and her uncle have derived is something which this child has a right to enjoy and live as established under international law as well as by the provisions of the Family Law Act. She has a right to enjoy that culture with other persons of that culture. This child will continue to flourish and develop and to have her needs psychologically and emotionally met by her uncle and including her cultural needs.
(i) The attitude to the child and the responsibilities of parenthood
The uncle has demonstrated an excellent capacity not only to recognise the child’s needs but to fulfil responsibilities to the child’s care. That should not be interfered with.
(j) and (k)
Family violence is not relevant nor are family violence orders.
(l) Whether it is preferable to make an order that will least likely lead to the institution of future proceedings.
I am satisfied this consideration compels the orders sought by this child’s uncle. There is no other available carer save a state agency. It could not possibly be suggested that to expose that child to the removal from her only remaining relative and so as to place her into the care of unrelated persons would be an appropriate course. That would be entirely contrary to the objects and principles in sections 8 and 9 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) let alone contrary to and counter-intuitive to commonsense.
In all of those circumstances, and also incorporating reference to section 65DAA(5) which has limited application in these circumstances being proceedings involving only one party, I am satisfied that the orders that are sought are not only within the Court’s jurisdiction but that the Court is compelled to make those orders in accordance with the child’s best interests.
Therefore I make orders as set out at the commencement of this Judgment.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Harman FM
Date: 31 August 2012
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