King and Smith and Anor
[2010] FMCAfam 690
•7 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KING & SMITH & ANOR | [2010] FMCAfam 690 |
| FAMILY LAW – Children – with whom a child lives – competing applications by a non-relative and biological parents – cultural issues. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 64B, 64C, 65C, 65Y, 65DAA |
| Re Evelyn (1998) FLC 92-807 Carlson and Ors & Bowden [2008] FamCA 1064 |
| Applicant: | MS KING |
| First Respondent: | MR SMITH |
| Second Respondent: | MS SMITH |
| File Number: | MLC 5388 of 2009 |
| Judgment of: | Baker FM |
| Hearing dates: | 14 & 15 April 2010 (In Melbourne) |
| Date of Last Submission: | 15 April 2010 |
| Delivered at: | Hobart |
| Delivered on: | 7 July 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Devries |
| Solicitors for the Applicant: | Garden & Green Lawyers |
| Counsel for the Respondents: | Ms Wiener |
| Solicitors for the Respondents: | Legal Aid Commission of Victoria |
ORDERS
Ms Smith and Ms Smith (“the parents”) and Ms King are to equally share parental responsibility for [X] born [in] 2003 (“the child”).
The child live with Ms King.
The child spend time with the parents, or either of them as follows:
(a)In the event that the child lives in Victoria:
(i)For one half of each Victorian term school holiday, the times to be agreed, and if not agreed for the first half of the school holiday period.
(ii)For four weeks during the Christmas school holiday, the times to be agreed, and if not agreed for the first four weeks of the holiday period in 2010 and the last four week period of the holiday in 2011 and alternating yearly thereafter.
(b)In the event that the child lives within 20 kilometres of the residence of the parents:
(i)Each alternate weekend from after school Friday to 6.00pm Sunday,
(ii)Each Wednesday from after school until Thursday morning at school.
(iii)For one half of each school term holiday, the times to be agreed and if not agreed for the first half of the school holiday period
(iv)For one half of the Christmas school holiday, the times to be agreed and if not agreed for the first half such period in 2010 and the second half in 2010 and alternating yearly thereafter.
(v)For two hours on the child’s and the parents’ birthdays.
(c)In the event that the parents travel to [S] and provide 14 days notice to Ms King, such times as agreed and if not agreed for a period of 7 days.
(d)For such further occasions or periods as may be agreed.
(a) Ms King pay the costs of the child’s travel for the time with the parents.
(b)Ms King provide to the parents 14 days notice of the child’s travel arrangements prior to each period of time.
The child communicate with the parents by telephone;
(a)Initiated by either or both of the parents at all reasonable times except during normal school hours and not being later than 7.30pm,
(b)Initiated by Ms King whenever the child requests to speak with either or both of the parents.
The parents be permitted to communicate with the child by way of letter, card or email.
Each of the parents be and is hereby restrained from applying any form of physical chastisement to the child or permitting any other person to do so.
The mother be and is hereby restrained from;
(a)Exposing her breasts to the child,
(b)Requiring the child to suckle her breasts,
(c)Permitting the child to touch her breasts.
Ms King authorise the child’s school to provide to the parents, at the cost of the parents, copies of all written communications, photographs and electronic communications normally provided to parents.
Ms King authorise the child’s school to permit the parents to attend parent-teacher interviews and all school and extra-curricular activities normally attended by parents.
Ms King provide the parents with prompt notification of detail of all illnesses, accidents or occurrences of the child requiring him to attend upon a health professional and such health professional be authorised to discuss all aspects of such attendance with the parents, or either of them.
Each party shall keep the other advised of their residential address and telephone contact details.
The parents are to keep Ms King advised of their migration status and in the event that they are to be deported they forthwith advise Ms King of such event.
The parents Ms Smith and Mr Smith be restrained from removing or causing or allowing the child, [X] born [in] 2003 (male), from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing the name of the said child on Airport Watch Lists at all points of arrival or departure in the Commonwealth of Australia and maintain that child’s name on the Watch List until the Court orders his removal.
IT IS NOTED that publication of this judgment under the pseudonym King & Smith & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT HOBART |
MLC 5388 of 2009
| MS KING |
Applicant
And
| MR SMITH |
First Respondent
| MS SMITH |
Second Respondent
REASONS FOR JUDGMENT
This is an application made by Ms King for parenting orders in respect of the child [X] born [in] 2003 (“[X]”). The First Respondent (“the father”) and the Second Respondent (“the mother”) are the biological parents (“the parents”) of [X]. Ms King seeks that [X] live with her. The parents propose that [X] live with them.
This is an unusual application because Ms King is not a relative of [X]. He has lived with her and been cared for by her since he was eight and a half months old.
The parents are Fijian. They came to Australia in 2002. Both of the parents were in previous relationships and have other children, who are now independent. [X] was born in Australia [in] 2003. The parents worked as itinerant [omitted]. They are currently on bridging visas, which do not permit them to work. They are dependent on charity. It is uncertain whether they and [X] will be able to remain living in Australia.
Issues
The issue is whether [X] should live with his biological parents, or with Ms King, the person with whom he has lived and been cared for since 2004. There is uncertainty about the parents’ future living arrangements. It is possible they may be deported to Fiji and [X] may also be required to leave. The parties’ proposals were made on the basis that the parents and [X] continue to live in Australia. Both parties proposed that [X] have school holiday time with the other party. There is an issue of whether [X]’s time with the parents should be supervised, in the event that the Court orders that he live with Ms King.
Background
The parents know Ms King because she was married to the mother’s nephew. Ms King began assisting the parents with the care of [X] whilst they worked as itinerant [omitted]. She started assisting them in early 2004 whilst they were living in [M]. When Ms King separated from the mother’s nephew she moved to [S]. The parents decided that [X] would live with her in [S], and that they would maintain contact with him. Ms King and the mother signed an agreement on or about
23 April 2004 that Ms King would have full responsibility for [X] until the mother sought to resume full responsibility for him. [X] has been living with Ms King for approximately five and a half years.
Ms King took [X] for weekend visits to the parents when they lived within drivable distance. The parents also maintained contact with him by telephone.
In mid 2008 the parents moved to Queensland to look for work. This made it impossible for them to spend regular time with [X]. He visited them in the 2008 September school holidays. In January 2009 Ms King took [X] to Queensland. She stayed with the parents and [X] for
5 weeks. She then left him with the parents for a period of around six weeks. In April 2009 she collected him, and took him back to [S].
Ms King again took [X] to visit the parents in December 2009. As a result of a dispute which occurred between the parties, Ms King returned to [S] with [X] the day after they had arrived in Queensland.
This was a very difficult matter. The parents did not participate in the family report process due to a lack of funds and due to them living in Queensland. They did not make any alternative arrangements, apart from a 15 minute phone call from the mother to Ms E in late January 2010.
History of proceedings
Ms King filed her application on 19 June 2009. On the first return date, 28 July 2009, there was no appearance on behalf of the parents. An interim order was made ex-parte that [X] live with Ms King and spend time with and communicate with the parents as agreed between the parties.
On 22 September 2009 the mother travelled to Melbourne to appear in Court. The father did not appear. It was ordered that the parents make, file and serve a Response and affidavit within 14 days, and the matter was adjourned to 26 October 2009.
On 26 October 2009 the parents were represented by their solicitor, Ms Billeam. By consent, trial directions were made for a final hearing to occur on 14 April 2010 and the matter was listed for mention in February 2010. By consent, a Family Report was ordered. For the purposes of the preparation of the report the parties were ordered to comply with all reasonable directions to attend upon the Family Consultant as and when required by her. Liberty to apply was granted to the parties on short notice. It was noted that two of the parties would be travelling from Queensland for the final hearing, and the matter should be listed with the appropriate priority.
The parents did not attend the interview with the Family Consultant (“Ms E”) on 19 January 2010. Ms E attempted to contact them by mobile telephone but was not successful. The solicitors for the parents were advised that their clients could telephone Ms E.
On 27 January 2010 the mother telephoned Ms E. They spoke for approximately 15 minutes. The mother informed Ms E that the father was not available to speak with her.
On the next mention date, 23 February 2010, no orders were made by the Court.
On 29 March 2010 the mother filed an Application in a Case. In support of this she relied on her affidavit filed 12 April 2010, an affidavit of the father filed 12 April 2010 and an affidavit of her solicitor, Ms Billeam filed 29 March 2010. The first return date of the Application in a Case was the day of the hearing, 14 April 2010. The mother sought to transfer the proceedings to the Family Court for final hearing, or in the alternative, sought that a supplementary Family Report be prepared before the hearing date and after [X] had the opportunity to live with his parents on an unsupervised basis. In the alternative, if the matter was not transferred to the Family Court and the hearing was not adjourned, she sought that a supplementary Family Report be prepared and Ms King make the child available on Monday 12 April, at the premises of Ms E, to assess the child in the presence of his parents; that an Independent Children’s Lawyer be appointed and that Reverend N be appointed as a Court Expert for the purposes of giving expert evidence about Fijian customs. Ms King opposed the Application in a Case and filed a Response and an affidavit.
The parents could not afford to attend for the interview in January 2010. They are entirely dependent on charity. There was no proposal made as to how an interview and observation of them with [X] could occur, if the hearing was to be adjourned. The Application in a Case was not heard until 14 April, so the time had passed for Ms E to see [X] on 12 April. If that had occurred, only the mother would have been present. I dismissed the Application in a Case and the hearing proceeded. The father was not present at the hearing. He was not present to see Ms E, and would not have been even if that had been possible. No application was made by him to appear by telephone or video-link.
Law
Section 65C of the Family Law Act1975 (“the Act”) provides that any person concerned with the care, welfare or development of a child can apply for a parenting order. Section 64C of the Act provides that a parenting order in relation to a child may be made in favour of a parent of the child or some other person.
Section 60CA of the Act provides:
“In deciding whether or not to make a parenting order in relation to a child a court must regard the best interests of the child as the paramount consideration”.
A court, in determining what is in a child’s best interests, must consider the primary considerations and the additional considerations set out in s.60CC, informed by s.60B, which set out the objects of Part VII of the Family Law Act 1975. Section 60B provides:-
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent 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; and
(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.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60B(2) of the Act provides that children have a right to spend time on a regular basis with and communicate on a regular basis with both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives.) This principle applies except when it is, or would be, contrary to a child’s best interests. Section 60B(2)(e) provides that children have a right to enjoy their culture (including the right to enjoy their culture with other people who share that culture).
Section 60CC(3)(g) requires the Court to consider the child’s lifestyle, cultural beliefs, traditions and background when determining what is in the child’s best interests. The Court must consider the cultural background and traditions of the child and his or her parents.
In Re Evelyn[1], the Court held that there is no presumption in favour of a parent. The Full Court followed Re Evelyn in Dennett & Norman[2], and also referred to D & F[3]. In paragraph 56 of that case, the Court said:
“There is a clear need in each case to understand the ramifications of applying the factor of parenthood. The factor may have little weight if the child has had no relationship whatsoever with the parent. It may be of little significance where the parent poses a real risk to the child's welfare. It may also not be a decisive factor in cases where other factors overwhelmingly outweigh it, but it may be very significant in a dispute between a capable parent and a more capable grandparent, and determinative in a dispute between a capable parent and an outstanding neighbour, foster parent, sibling or other person with a proper interest in caring for the child.”
[1] (1998) FLC 92-807
[2] [2007] FamCA 57
[3] (unreported) [2001] FamCA 382
Whilst there is no presumption in favour of a parent, the objects and principles underlying Part V11 of the Family Law Act 1975 make reference to parents and indicate the intention of the legislature to place the onus on parents to undertake those responsibilities primarily.[4]
[4]Souter & Meagher & Anor (2007) FAMCA18 per Cronin J
The presumption of equal shared parental responsibility only applies to parents.[5] However, the Court can make an order that a non-relative have parental responsibility.[6]
[5] Op cit
[6] section 64B(2)(c).
An order can be made that a non-parent have parental responsibility or share that responsibility with another person who may or may not be a parent. Section 61C makes clear that in the absence of an order of the Court or parenting plan, only the “parents” have “parental responsibility”.[7] The Full Court in Donnell & Dovey [8] made it clear that section 65DAA can have no application in circumstances where an order is made for a parent to share parental responsibility with a person who is not a parent. Orders can be made in favour of either parents or non-parents and, in determining what those orders should be, the best interests of the child remain the paramount consideration[9].
[7] Donnell & Dovey [2010]FAMCAFC 15 – para 83
[8] Op cit
[9] Paras.86 and 87
Evidence
Ms King relied on the following:
·Initiating application filed 19 June 2009,
·Her two affidavits filed 19 June 2009 and 11 January 2010,
·Document headed “Minutes of Orders proposed by the Applicant”.
The parents relied on the following:
·Amended Response filed 26 October 2009.
·Affidavits of the mother filed 26 October 2009 and 12 April 2010,
·Oral evidence of Reverend N,
·Document headed “Orders Sought by Respondents”.
Ms King, the mother and Reverend N were cross-examined.
In the Family Report dated 20 January 2010 Ms E recommended that [X] live with Ms King and communicate with the parents by telephone at any reasonable time to be agreed and spend time with the parents with Ms King substantially in attendance at times to be agreed.
The addendum report of 27 January 2010 indicated that Ms E spoke with the mother for 15 minutes. Her recommendations remained unchanged. Ms E was cross-examined.
Ms E’s evidence
Ms E was of the view that [X]’s principal attachment, which resembles that of a birth mother and child, is to Ms King. She was of the opinion that [X] is resilient and secure and that he is well-adjusted, happy little boy as a result of Ms King’s nurture and care. During cross-examination Ms E said that she was not aware of the time [X] spent with the parents between 2004 and 2007. She recalled the written agreement made between Ms King and the mother about looking after the baby, which suggested to her that the parents were spending some time away that prompted the generation of that document. When asked whether [X] would have formed a secure attachment to his parents, she answered, “he would certainly know them, yes.” She was aware that there was a strong bond between the father and [X] and that [X] was very important to his father and spoke to him on the telephone nearly every day.
The mother had raised with her the issue of Ms King having limited understanding of the Fijian culture. Ms E said:
“[That] implies Ms King does not understand the benefits of traditional parenting. That may be so. However there is no evidence of any particular prejudice on Ms King’s part. She presents as an open minded person and although now divorced did marry Ms Smith’s nephew. She also has another Fijian child living in her home.”
During cross-examination Ms E was asked how [X]’s right to have a relationship with his parents and the right to know his parents and the right to be exposed to his own culture could be advanced on the basis of her recommendation. She answered, “he is continuing on as it is at the moment, and spending time with them when he is not at school. And, I imagine, the cultural issues will be most intensely absorbed when he is spending time with them.” When it was put to Ms E that she did not attach much importance to the child being exposed to his Fijian culture, she answered:
“…I think it’s fairly important, yes. It is fairly important. …how Ms King presented to me was that she wasn’t resistant at all to him knowing and being exposed to Fijian culture. And I think his happiness and welfare becomes – is fundamental to his appreciation of other things in life, whether it be cultural or educational or anything. So he first of all, he has to feel psychologically secure and happy.”
During cross-examination Ms E said that it is unlikely that a child will suffer psychologically living with a person who is not a relative rather than living with his biological parents. She said that [X] needs a stable environment and she understood that he would return to Fiji in the long-term. She said that she would not change her recommendations even if there was a real possibility of the parents and [X] being deported. Ms E said that it would be extremely distressing for [X] to be deported with his parents. However, it would not be less distressing for [X] to live with his parents now, rather than at the time he is put on plane with them.
When it was put to Ms E that it is inappropriate for [X] to call Ms King “Mum,” she answered that this is a very unusual circumstance and his principal attachment and the more intimate relationship is with
Ms King. She said that a lot of children call two people mum or dad, and that they sort it out themselves as the relationship becomes clearer, or when they have a more logical understanding of what the words mean.
Ms E indicated in her report that, on the material available, it is inevitable that [X] will suffer emotionally and psychologically if compelled to live with his parents. The impact would be compounded if they were returned to Fiji with him, where contact with Ms King would be minimal.
Ms E was of the opinion that it is necessary that [X]’s time with his parents be supervised. She believed that [X] would be happier if
Ms King were present, or some other person who would make him feel safe and confident. Ms E conceded that, because she had not seen [X] with his parents, this recommendation was limited.
Ms E conceded that she was unable to say whether [X]’s interactions with his parents are better, worse, the same or different in any way from those between [X] and Ms King, except that [X] told her that he does not want to visit the parents.
Limitation of Report
Family reports are normally valuable and relevant material in assisting the Court to form an ultimate conclusion.[10] The report in this matter is of limited assistance because Ms E, through no fault of her own, did not observe [X]’s interaction with the parents. Ms E acknowledged this and conceded that she had only one side of the story. As a result, I place little weight on her recommendation of the requirement of supervision of [X] when he is spending time with his parents, due to her not having the opportunity to observe them together. My view is that there is no need for supervision, which I will discuss later in these reasons.
[10] Hall & Hall [1979] FLC90-713
The report was of assistance however, in respect of the issues of [X]’s attachment to Ms King, and the effect on [X] if he is removed from living with her. Ms E held this opinion being aware of [X]’s attachment to his parents. I place weight upon this part of her evidence.
Ms King’s evidence
[X] lives with Ms King in [S]. She also cares for a nine year old Fijian girl, [Y]. A boarder and her adult daughter live with her. Ms King is a [occupation omitted]. She has been employed there for the past three years. On 24 April 2004 the parents placed [X] with Ms King whilst they worked as [omitted]. At times they lived within drivable distance and Ms King took [X] to visit them at weekends. They made special efforts to be together whenever possible for children’s birthdays, Christmas and school holidays. Until June 2008 the parents lived in [R] and saw [X] whenever Ms King took him to see them. They also telephoned [X].
Ms King took [X] to Queensland in January 2009. She deposed that the mother told her that [X] was to remain with them. Ms King stayed for a period of five weeks to make sure [X] was comfortable living with the parents. Before leaving, she told them that she would come back during the Easter holidays to visit.
A few days before Ms King travelled to Queensland in April 2009, she learned that the parents had failed in an appeal for a visa to stay in Australia. Before leaving [N] she said that the parents informed her that [X] would be going back with her. At this time [X] told Ms King that the mother hit him with a belt and still wanted him to suckle her breasts.
A short time after returning to [S] the mother requested that [X] return to Queensland to accompany the parents to an interview before the Refugee Review Tribunal. Ms King telephoned them to ask them what was happening. She said, “I spoke with the father who told me he did not know and I told him about the mother wanting [X] in Queensland and he said something like no, he’s to stay with you.” Ms King then told him that she could not let [X] be treated the way he had been earlier in the year, and that she intended to apply for orders that [X] live with her.
Ms King took [X] to Queensland in December 2009 to visit the parents. She deposed that [X] was excited to see his father, however his reaction to his mother was different, and he was reluctant to go to her. The parents drove Ms King and [X] to their home in [N]. The mother announced that Ms King was not welcome to stay in her house and that she would have to leave, and leave [X] with her. Ms King tried to explain to her that the Court orders required her to supervise [X], and reminded her that they had arranged for both of them to stay. They argued, and walked to the [N] Police station where a policeman explained to the mother the effect of the Orders.
The Police then arranged for Ms King and [X] to stay at the [omitted] Hotel because it became clear that the mother was not going to comply with the Orders. Ms King telephoned the mother from the hotel to inform her of where they were staying. The parents arrived a short time later, wanting to see [X]. Ms King explained to the parents that she could not afford the cost of the hotel which was $100 per night.
Ms King agreed during cross-examination that she was invited to go to the parents’ home on the following day by the father. She declined because she asked the mother whether she was welcome in her house, and the mother did not answer. She told the parents that she and [X] would discuss this and that she would ring them later and tell them her answer. She said that she had attempted to telephone the parents but there was no answer. She left the hotel with [X] at 7.00am the following morning to return to [S]. She agreed during cross-examination that it would have been good for [X] to see his parents, but said that she was under financial constraints and that is why she made the decision to leave.
During cross-examination, Ms King said that she developed concerns about the mother’s care of [X] when she visited in April 2009 and had daily contact with [X]. Ms King was concerned when he told her that the mother hit him with a belt. She reported the matter to the child protection authorities. Ms King was not aware of any action having been taken as a result of an investigation.
A letter dated 22 March 2009 which Ms King wrote to the Immigration Department in support of the family was tendered by the mother. In the letter Ms King said:
“As of 24 April 2004 at the age of eight and a half months I started to have sole care of [X] (as myself and immediate family members call him”. During the following years [X] has become one of our family. [X] has lived as any other Australian child; he has completed the recommended immunisation regime, progressive infant health checks, we have witnesses and assisted in all of the usual milestones – the first tooth, step, word, haircut etc…during illness and accidents I have been there to soothe his pain, tears and to apply the bandaids and we have been together for all cuddles, to read bedtime stories, to answer all his inquisitive questions of why? …initially when [X]’s parents left him my care there was contact via the telephone whenever possible. As I would phone or text them when able – particularly the special “first time” and day-to-day events took place. Understandably Mr and Ms Smith led a transient life but at times they resided at places that were within driveable distances; I took these opportunities to visit so [X] could know his parents and his Fijian background. These weekend–type visits were most enjoyable and they provided the opportunity for our families to become one every big extended family. During these times [X] came to the knowledge that he had two mums – one Australian, one Fijian and a Fijian dad as well as more siblings living in Fiji. At no time was he confused with arrangement it was a natural progression of his happy and safe life that full acceptance and love.
In the middle part of 2008 Mr and Ms Smith unfortunately had to move again and this time it was to a place that was too far away. During the months leading up January 2009 and with the frequent visits having to cease [X] began to miss his parents – especially his dad. Mr and Ms Smith also indicated that they were missing him and the contact that we all had together prior to the move to [N], Queensland. In January 2009 I returned [X] to his parents, I stayed with the Smith family for 5 weeks to assist [X] in the transition of living with his parents. This enabled not only [X] but also myself to be apart for the first time. Now we have the daily phone contact with [X] and his parents. I have made plans for [Y] and I to travel to see them all during the Easter school holidays.”
If the Smiths are successful in this appeal we plan to move closer to each other or even share accommodation so as we won’t be torn apart again, the pain is far to great to bear long term.”
This letter contains information which is different from Ms King’s affidavit evidence. The letter reports that she returned [X] to live with his parents in January 2009 because he began to miss them, and they began to miss him. She said “I stayed with the Smith family for five weeks to assist [X] in the transition of living with the parents… I have made plans for [Y] and I to travel to see them all during the Easter school holidays.”
I am of the view that what Ms King has written in the letter is consistent with what occurred. In January 2009 she must have intended for [X] to live with the parents, otherwise she would not have left him for another five weeks when he attended school in [N]. She admitted that [X] was missing his father after the parents moved to Queensland and told Ms E there was a strong bond between them.
Ms King became concerned about the parents’ care of him, so she retained him in her care after she collected him at Easter 2009.
When Ms King was asked about the abuse, neglect and violence that she alleged [X] suffered whilst with the parents, she said that the neglect occurred when he was left in the apartment with no supervision, and that he once became lost in a street of [N]. [X] also told her that the mother hit him with a belt when he got out of the shower. Ms King saw the mother cup her hand and hit [X].
It was put to Ms King that in December 2008, when the parents surrendered to the Immigration Department, she became angry and told them that she would be in trouble with Centrelink because she had been claiming Centrelink benefits in respect of [X]. Ms King denied that she was angry but was concerned prior to telling Centrelink. She denied that she did not return [X] to the parents for that reason. She had informed Centrelink about when she received payments and did not want any payments until this was sorted out. Ms King said that [X] would be better off with her because he would not be hit with a strap and not made to breastfeed.
Ms King confirmed in her oral evidence that she was open to the proposal that the two family units live in closer proximity to enable [X] to spend time with his parents. She said that if [X] is to live with the parents she hopes that he would visit her on a regular basis. If [X] is to live with her, she said that she would be with him at all times when he visits the parents, and that she would give one hundred percent to make the arrangements workable.
To ensure that [X] knows about his Fijian background Ms King says that she receives advice from her Fijian friends. She uses basic Fijian words in the household and she and [X] look at a map of Fiji.
The mother’s evidence
The mother deposed that Ms King started assisting her and the father with [X]’s care in early 2004. She babysat [X] during the day. Prior to this the parents had worked on alternate weeks so that one of them was able to care for [X]. When Ms King moved to [S] the mother agreed for Ms King to care for him on the understanding that he would be returned to the parents in accordance with the agreement signed 23 April 2004.
On weekends Ms King took [X] to see the parents. During the week they maintained contact with him by telephone. When they moved to Queensland in mid 2008 to look for work, they saw him in the September school holidays in 2008 and from February until April 2009 when he lived with them.
The mother deposed that when Ms King arrived with [X] in December 2009 Ms King was unwilling to sit down and discuss the litigation and what would be best for [X]. The mother did not believe that supervision for [X] was necessary. She agreed to the interim orders to show [X] that they could work together for him. The mother believed that Ms King withdrew [X] from the parents over the holiday period to undermine any assessment they may have had with Ms E.
During cross-examination, the mother said that she confronted
Ms King about the fact that she had reported her to the child protection authorities. She asked her what else was she going to complain about. She said “I hope you talked the truth to Court about us.” She said that she was looking towards her husband, and did not look away when he invited Ms King to come back to the home. The mother agreed that the issue of supervision was discussed with Ms King and that she walked with Ms King to the police station. She denied that she had asked
Ms King to leave [X] with her. When asked why the issue of supervision came up, she answered “I asked her what is wrong with us so that [X] has to be supervised?”
The mother conceded that she cannot provide [X] with certainty of where he will live, as this is in the hands of the Immigration Department.
The mother denied that she had neglected [X] and explained that the father and [X] were at home alone and when [X] was playing with the Playstation the father went to the toilet and [X] went outside.
The mother denied that she had breastfed [X]. She said that [X] and she were lying down and he wanted to fiddle with her breasts. She told him that she breastfed him when he was young
In respect of the allegation of hitting [X], she said that she taps her children on the hand with a belt, stick or with an open hand. She denied hitting him on a number of occasions.
The evidence of Reverend N
Reverend N was presented as someone with expertise on Fijian customs. Ms King’s Counsel challenged his expertise, but in my view he has sufficient experience to have specialised knowledge about that topic in this area.
Reverend N is a minister of the Methodist Church in Fiji. He has lived in Australia for two years. He lived and practised as a Minister in Suva. He was also an [occupation omitted] from 2002 to 2008 and was required to travel to all the provinces in the country for his work.
He gave evidence that there are close to 1000 tribes in Fiji and each tribe has, to some extent, its own customs, but with slight differences. His evidence related to the mother’s tribe and all other Fijian tribes. Under Fijian custom if a mother agrees to a child being raised by a third person, and a request for a return of the child is made, there is no way of preventing or stopping the child from being returned. The child cannot be permanently parted from his or her parents unless by adoption, or if there is a mutual understanding on both sides and they go through a ritual of understanding.
His evidence about chastising children was that it is still the custom to use a stick, hand or a belt and this is still practised in most villages and homes. Although this is customary, it is not lawful in Fiji. When asked how long it would take for a child who has been raised in a non Fijian household to be brought up to standard with Fijian customs, he said it would take up to two to four years.
Section 60CC
Primary considerations
Section 60CC(2)(a)
“The primary considerations are:
(a) the benefit of the child having a meaningful relationship with both of the child’s parents;
(b) the need to protect the child from physical of psychological hard from being subjected to, or exposed to, abuse, neglect, or family violence.”
Section 60CC(2)(a) provides that it is a primary consideration for the children to have the benefit of a meaningful relationship with their parents. Pursuant to s.60B(1)(a), the Court is required to ensure that the best interests of the children are met by ensuring that the children have the benefit of the parents’ meaningful involvement in their lives. Following what Cronin J said in D & T[11], there seems to be no difference between a meaningful involvement and a meaningful relationship.[12] I am required to examine whether the proposals of the parties enable [X] to have the benefit of a meaningful relationship with both his parents. Even if such a benefit is established it must still be weighed alongside the other relevant factors.[13]
[11] [2007] FAMCA 1383
[12] D & T at para.164
[13] G & C [2006] FAMCA 994
The only definition of “parent” is in s.4(1). It reads as follows:
“Parent, when used in Part VII in relation to a child who has been adopted means the adoptive parent of the child.”
The Full Court in Donnell & Dovey[14], in interpreting the meaning of “parent”, proceeded on the basis that “parent” means a biological or adoptive parent, and does not include a person who stands in loco parentis to a child.[15] The Full Court referred to s.60CC which maintains clear distinctions between a parent and a non-parent.
[14] (2010)FAMCAFC 15
[15] Para.92
Section 60CC(2)(a) has no application to a person who is not a parent. I will address the benefit to [X] of a meaningful relationship with
Ms King, and the other considerations which do not make reference to a non-parent, when I address the issues under s.60CC(3)(m), in accordance with the decision of the Full Court in Donnell & Dovey[16].
[16] Op cit
The evidence indicates that [X] has a meaningful relationship with his parents. It will be beneficial for [X] to continue to have a meaningful relationship with them. Ms King ensured that [X] spent time with his parents until they moved to Queensland. She said that [X] became aware that he had two “mums” – one Australian, one Fijian. He also knows he has a Fijian father and siblings living in Fiji. At no time was he confused with this arrangement. Ms King said that it was a natural progression of his happy and safe life, full of acceptance and love.[17]
[17] Exhibit “R1” page 3
Section 60CC(2)(b)
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Ms King has alleged that [X] was subjected to abuse, neglect and violence during his stay with the parents from late February 2009 until 12 April 2009, and that he still suffers nightmares and trauma as a result. This was reported to the relevant child protection authorities and investigated. There was no evidence that any action was taken against the parents.
I am not satisfied that [X] was neglected by the parents. The mother gave evidence of one incident when he was left in the father’s care, and left the house while the father was in the toilet. There is no evidence that [X] was harmed or that there were further incidents. The mother’s evidence about hitting [X] with a belt was that she used a stick, belt or open hand to tap him on the hand. [X] told Ms E “I don’t want to go there. They smack me with a belt on the leg…I don’t want to see her (the mother) she smacks me with the belt most and she thinks I am still a baby. She keeps feed me her things.”
I am of the view that [X] has been hit with a belt by his mother and that he needs to be protected from this occurring again. Whilst Reverend N gave evidence that is it a Fijian custom to use a stick, belt or hand when chastising children, it is not acceptable in our culture to use objects to hit children. [X] has been raised in an Australian household for five and a half years. It is not in his best interests to be subjected to physical discipline by his parents. I am also of the view that the mother has attempted to suckle [X] and exposed her breasts to him. I do not accept her explanation of what had occurred. I accept the evidence from Ms E that [X] did not like this. I consider that it is not in his best interests to be exposed to the mother’s breasts and I will make appropriate injunctive orders.
Relevant additional considerations
Section 60CC(3)(a)
Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
[X] is six and a half years old. Ms E interviewed [X] in the absence of Ms King. She said that [X] was a relaxed, confident and forthright child who did not appear to be influenced when he expressed his views. He told her that he does not want to go to his parents’ home because they smack him on the leg with a belt and the mother thinks he is still a baby.
Ms E was of the opinion that weight should be placed on [X]’s expressed view, notwithstanding that she did not observe him with his parents.
I accept that [X] did not like being smacked with a belt or being exposed to the mother’s breasts and that he told Ms E that he did not want to go to his parents’ home as a result of this.
Section 60CC(3)(b)
The nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child)
[X] is attached to his parents. Ms King indicated that during the months leading up to January 2009 when the frequent visits to his parents ceased, [X] began to miss them, especially his father. Ms King told
Ms E that [X] and his father have a very strong bond.
[X] has formed a strong attachment to Ms King. [X] spoke to Ms E about Ms King’s children, their partners and he singled out his sister, [Y], with whom he shares a bedroom. The mother referred to Ms King as “[X]’s other mother” and confirmed that Ms King has done a lot of good things for him.
Section 60CC(3)(d)
The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
[X] has lived with Ms King since he was eight and a half months old, apart from a period between February and April 2009 when he lived with his parents. Ms E is of the view that [X] has formed a strong attachment to Ms King, similar to that between a birth mother and child. She believes that it would detrimental to his psychological health to disrupt that attachment. His happiness and progress is evidenced by his school performance, which would also suffer if he were compelled to leave his current living situation. She said in her report:
“On the material available, it is inevitable that [X] would suffer emotionally and psychologically if he were compelled to live with his parents. The impact would be compounded if they were returned to Fiji with him, the contact with Ms King would be minimal. [X]’s presentation suggests he is happy with regular telephone communication with his father without more intimate interaction.”
Although Ms E did not observe [X] with his parents, she said that he would be attached to them. There is evidence from Ms King that he missed the parents when they moved to Queensland when he did not have frequent visits with them.
Whilst the Family Report is limited in that it did not observe [X] with his parents, I accept Ms E’s opinion that [X] has a strong attachment to Ms King, which is not surprising given that he has lived with her for approximately five and half years. She formed this opinion being aware that [X] is attached to his parents.
.Section 60CC(3)(f)
The capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
The parents are currently dependent on charity. There was no evidence of how they intend to provide for [X]’s financial needs. [X]’s primary attachment is with Ms King. Whilst he has an attachment with the parents, Ms E’s evidence is that it is inevitable that he would suffer emotionally and psychologically if he were compelled to live with the parents. I accept this evidence of Ms E and am of the view that
Ms King has the capacity to better provide for the emotional needs of [X] than the parents.
Ms King is in a better position than the parents to provide for [X]’s financial needs. She earns an income from her employment as a [omitted]. [X] presented to Ms E as a delightful, intelligent boy. His happiness and progress is evidenced by his school performance.
Ms King lives in a four bedroom house in [S]. [X] shares a room with [Y], an eight year old Fijian child.
Section 60CC(3)(g)
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
[X] and his parents are Fijian. [X] will not be intensely exposed to the parent’s culture if he lives with Ms King. A child’s cultural identity is an important factor in deciding where he or she should live.[18]
[18] Moses & Barton (2008) FAMCA590
Ms E acknowledged that [X]’s culture is very important, but that he must feel psychologically secure and happy before he can appreciate his culture. She said that cultural matters will be more intensely absorbed by him when he is spending time with his parents.
In Ms King’s household [X] lives with [Y], an eight year old Fijian child. Ms King has Fijian friends and was married to the Fijian nephew of the mother. Her evidence was that she promotes Fijian culture to [X].
Section 60CC (3)(i)
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The parents left [X] in the care of Ms King when he was eight and a half months old. The evidence indicated that it is part of Fijian culture that children be left in the care of a third person, who raises the child. The mother entered into an agreement with Ms King and expected [X] to be returned to her when she requested his return. The parents spent time with [X] whenever they could. They also provided financial support for him to Ms King. I am satisfied that they have a responsible attitude to [X] and the responsibilities of parenting.
Section 60CC(3) (j) and (k)
Any family violence involving the child or a member of the child's family;
(k) any family violence order that applies to the child or a member of the child's family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
I have already referred to the allegation of [X] being hit by the mother. There is no family violence order.
Section 60CC(3)(l)
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Parenting proceedings are never final. The matter may need to come back to Court when the immigration status of the parents and [X] is clear, to ensure that [X] is able to spend time with each party.
Section 60CC(3)(m)
Any other fact or circumstance that the court thinks is relevant
It is of benefit to [X] that he continue to have a meaningful relationship with Ms King. He is very attached to her as she has been a consistent carer for him since 2004.[19] I consider that Ms King is genuine about her application for [X] to live with her and is not motivated by the receipt of Centrelink payments.
[19] Para 31 – Family Report
Ms King has been willing and able to facilitate and encourage a close and continuing relationship between [X] and the parents. She facilitated him spending time with them regularly until they moved to Queensland in mid June 2008. After the move she facilitated him spending time with them in the September 2008 school holidays and between February and April 2009. The December 2009 visit did not occur due a dispute between the parties.
I consider that Ms King did not deliberately prevent [X] from spending time with the parents. However, she could have made a greater effort to resolve the dispute so that [X] could spend time with the parents. She acknowledged that the parents had not seen [X] for eight months, and they were keen to see him. Her reason for not enabling [X] to see his parents was that she was advised by the police officer that the mother was in breach of the Court orders and there was no need to be there. She tried to seek legal advice and then talked to a family friend. She said she did this for [X] and not for herself. She paid for the cost of return travel for herself and [X] to Queensland.
I accept Ms King’s evidence that the mother did not make her welcome. The mother was upset about the complaint to the child protection authorities and did not believe it was necessary for the parents’ time with [X] to be supervised. However, in my view
Ms King should have returned to the parent’s home on the following day rather than immediately returning to Melbourne, so [X] could have spent time with the parents.
The Court proceedings and Ms King’s notification to child protection authorities had created tension between the parties. Given their close relationship in the past, I am satisfied that once these proceedings are finalised there will be no issue about Ms King’s willingness and ability to facilitate and encourage a close and continuing relationship between [X] and the parents. Ms King said that she would give one hundred percent in making arrangements for [X] workable.
The mother has expressed willingness and shown an ability to facilitate and encourage a close and continuing relationship between [X] and
Ms King. The mother informed Ms E that she and her husband propose that [X] spend time with Ms King in the school holidays. The mother deposed that in her culture they recognise and respect the position of someone who has cared for a child and been a significant part of that child’s life. She said that [X] sees Ms King as his second mum, and on that basis the father and the mother are willing to agree to equal shared parental responsibility for [X] with her.
Due to the distance between [S] and [N], there is a practical difficulty of [X] spending frequent or weekly time with whichever party he does not live with. However, he will be able to spend school holiday time with that party.
Section 60CC(4)
This section overlaps to some extent with sub-paragraphs (f) and (i).
Conclusion
Ms King has sought an order for equal shared parental responsibility. The parents have sought an order for sole parental responsibility. As I have already discussed, a non-parent concerned with the care, welfare and development of a child can apply for an order allocating parental responsibility to him or her. An order can be made for parental responsibility between two or more persons, including persons who are not a parent. However, the presumption of equal shared parental responsibility only applies between parents. Therefore, the presumption in this case is that the parents have equal shared parental responsibility to the exclusion of Ms King. I agree with Murphy J that the presumption that the parents share parental responsibility equally would need to be rebutted by reference to the matters set out in s.61DA(2) or (4) before an order allocating parental responsibility to non-parents could be made.[20]
[20] Carlson and Ors & Bowden [2008] FamCA 1064 at paragraph 182
The mother deposed that she and the father recognise and respect
Ms King and they are willing to share parental responsibility with her. They also sought this in their Amended Response filed 21 October 2009. This was in contrast to the “Orders Sought” in which they sought sole parental responsibility for [X]. During her oral evidence, the mother said that Ms King and the parents have had a close relationship. She described Ms King as being like a sister to her, and having a close friendship. This changed when the mother surrendered herself to the immigration authorities and these proceedings commenced.
There is no doubt that in the past the parents and Ms King have been able to co-operatively make arrangements for [X]. I am of the view that they will continue to do so. As [X] has been living with Ms King for the past five and half years, Ms King has exercised parental responsibility by choosing his school and attending to his health. I consider that it would not be in the best interests of [X] for the parents to have equal shared parental responsibility for him, and that the presumption should be rebutted. In my view, it is in [X]’s best interests that parental responsibility be allocated equally between the parents and Ms King.
The advantage for [X] to live with Ms King is that he will continue to have stability and will live with the person to whom he is primarily attached. He will be able to attend the same school where he is progressing well. He will not be separated from Ms King, which Ms E believes will be detrimental to his emotional and psychological health. The impact will be compounded if the family is deported to Fiji and time spent with Ms King is minimal. The disadvantage for him is that he will not be living with his biological parents and he will not be intensely exposed to his Fijian culture.
I have taken into account the agreement made between Ms King and the mother in 2004, and that the mother expected [X] to be returned to her when she requested his return. I have taken into account that [X] will not be living with his biological parents. However, [X] was placed by the parents with Ms King five and a half years ago and he is primarily attached to Ms King and is likely to suffer emotional and psychological damage if he is compelled to live with his parents. I have taken into account the possibility that the parents and [X] may be deported and the evidence of Ms E that it will not be less distressing for [X] to live with the parents now, rather than at the time he is put on a plane with them.
This evidence, together with the stability that Ms King can provide for [X], has led me to the conclusion that it is in his best interests that he continue to live with Ms King. I am satisfied that [X] will continue to have a meaningful relationship with each parent if he lives with
Ms King and spends time with them. I am confident that Ms King will promote [X]’s relationship with the parents. I am also confident that she will promote [X]’s Fijian culture.
I am required to consider what time [X] should spend with the parents. The best interests of [X] remain the paramount consideration. Section 65DAA does not apply in these circumstances.[21] Nevertheless, in reaching a conclusion as to what is in his best interests, I will still consider equal time and substantial and significant time.
[21] Op cit – paragraphs 85-97
Equal time for [X] with each party is not in his best interests, due to his primary attachment to Ms King. It is not reasonably practicable due to the distance between [N] and [S].
In my view it is in [X]’s best interests to spend substantial and significant time with the parents. Such time includes weekends, holidays and periods during the week, so that the parents can be involved in events of particular significance to them and [X].
If Ms King and [X] continue to live in [S], and the parents continue to live in [N] it will not be practicable for [X] to spend such time with the parents, due to the geographical distance between those towns.
I consider that it is in [X]’s best interests to spend one half of all term school holidays and a period of four weeks during the Christmas school holidays with the parents. This will enable [X] to continue a meaningful relationship with the parents and is reasonably practicable. I consider that Ms King should pay the cost of [X]’s travel as well as her own if she accompanies him. She was able to afford the cost of his and her own travel twice in 2009 and I consider that she can afford the cost of the travel. She earns an income as a [omitted] and receives Centrelink payments for [X]. She said that she will give one hundred percent in making the arrangements work. The parents do not have any capacity to pay for such costs.
Ms King gave evidence that she was open to her family living in closer proximity to the parents. If the parties live within 20 kilometres of each other, I am of the view that it is in [X]’s best interests to spend substantial and significant time with the parents during the week, alternate weekends, one half of each school term school holiday and Christmas school holiday, two hours on [X]’s birthday and the mother’s and father’s birthdays and regular telephone time. I will also make an order that Ms King facilitate extra time for the parents with [X], if they can afford to travel to [S]. I am confident that the parties will be able to negotiate extra time.
Ms E was of the opinion that Ms King should be substantially in attendance when [X] is spending time with the parents. She based her view on him being more confident when she is around. She accepted that she did not know that would be the case if he was in the presence of the parents, because she had not observed him with the parents.
Ms King left [X] in the care of the parents in 2009 for a period of
6 weeks, although she stayed with him for five weeks to ensure that he was settled. [X] knows the parents and is attached to them. Apart from him not liking being hit by the mother and being exposed to her breasts, there was no evidence that he did not enjoy his time with the parents. To ensure that [X] is comfortable while spending time with the parents I intend to make injunctive orders so that he is not subjected to physical discipline or exposed to the mother’s breasts. Whilst the evidence was that it is Fijian culture to use physical discipline on children, I consider that the mother will understand it is not considered appropriate in our culture. She is aware that [X] does not like being hit or exposed to her breasts. I am of the view that his time with the parents does not need to be supervised.
Ms King has indicated a concern that the parents may take [X] and either disappear somewhere in Australia and live itinerantly or leave Australia with him. The making of an injunction and orders in relation to children is a discretionary power to be exercised when it is appropriate to do so for the welfare of a child.[22] [X] will be spending school holiday time and other time with the parents. The parents are not employed. Their immigration status is uncertain and they could be deported. They will not want to leave [X] in Australia. Section 65Y of the Act provides that if a parenting order is in force a person must not take a child outside of Australia unless by consent or order of the Court. Notwithstanding this, I consider that there is a risk that [X] may be taken by the parents. On balance, I am of the view that I should grant the injunction.
[22] Section 68B(1) of the Act
I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Baker FM
Date: 7 July 2010
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