Knightley & Brandon
[2013] FMCAfam 148
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KNIGHTLEY & BRANDON | [2013] FMCAfam 148 |
| FAMILY LAW – Parenting – necessary requirements to proceed as undefended hearing – application of the presumption of equal shared parental responsibility – importance of culture in interpretation and application of legislation – discussion of the definition of “parent” – importance of violence in application of the legislation. |
| Family Law Act 1975 (Cth), ss.4, 4AB, 43(1)(b), 60B, 60CA, 60CC, 60H, 60HA, 60HB, 61DA, 64C, 65C, 65DAA(5), 69ZX(3) Social Security Act 1991 (Cth), ss.5, 197 |
| Muir v The Queen [2004] HCA 21 Rice & Miller (1993) FLC 92-415 Mabo and Ors v Queensland (No 2) [1992] HCA 23 175 Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 B and B v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FamCA 451 199 |
| Applicant: | MS KNIGHTLEY |
| Respondent: | MR BRANDON |
| File Number: | PAC 4023 of 2012 |
| Judgment of: | Harman FM |
| Hearing date: | 1 February 2013 |
| Date of Last Submission: | 1 February 2013 |
| Delivered at: | Parramatta |
| Delivered on: | 1 February 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Basta |
| Solicitors for the Applicant: | Aston Reid Lawyers Pty Ltd |
| Respondent: | No Appearance |
ORDERS ON A FINAL AND UNDEFENDED BASIS
The children, [X] born [in] 2009 and [Y] born [in] 2010, shall live with their maternal Aunt MS KNIGHTLEY.
Ms Knighley is to have sole parental responsibility for the children. [X] born [in] 2009 and [Y] born [in] 2010.
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.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
IT IS NOTED that publication of this judgment under the pseudonym Knightley & Brandon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4023 of 2012
| MS KNIGHTLEY |
Applicant
And
| MR BRANDON |
Respondent
REASONS FOR JUDGMENT
These are proceedings involving an Application for parenting orders by a maternal aunt of two children, namely, [X] born [in] 2009 (and accordingly three years of age) and [Y] born [in] 2010 (and thus two years of age).
The Respondent to the proceedings is the children’s father,
Mr Brandon.
Mr Brandon has been served with process and given notice of the listing of the proceedings today. Mr Brandon has not filed a Response, appeared in the proceedings or made any attempt to appear or request to appear in the proceedings today or at any other time.
Mr Brandon is presently incarcerated and it would appear that the sentence leading to his incarceration has some years left to run.
The children’s mother, regrettably, is deceased. The circumstances of that are set out at some length in the Affidavit filed by the Applicant on 12 September 2012.
The Applicant in the proceedings is the children’s maternal aunt,
Ms Knighley.
The two children have lived with the Applicant, their aunt, for some years and certainly since the death of their mother.
The children’s parents had never had a relationship that has been stable or characterised by full-time cohabitation.
The parents met when they were at high school in 1988/1989 and they had a brief relationship at that time. They resumed their relationship shortly prior to the conception of the first of the two children, [X], although the relationship was typified by frequent separations, largely precipitated by alcohol abuse and/or violence perpetrated by the children’s father, and whilst not exclusively, largely upon their mother.
That pattern of violence is all the more heinous and unfortunate in circumstances whereby the children’s mother, Ms K, was diagnosed with breast cancer and had been receiving treatment in relation to that cancer which ultimately took her life.
The two young children are Aboriginal. Both of the parents and the children’s aunt are Aboriginal. The Applicant and the children’s mother are from the [omitted] mob and the father is from the [omitted] mob.
The father, not having participated in the proceedings, has not given any information as to his background or heritage.
The Application which is made by the children’s aunt is entirely appropriate. She is the children’s carer. The Application is also appropriate from a cultural perspective, the Applicant being the children’s maternal aunt.
Evidence
I have read and considered the Affidavit filed by the Applicant in support of her Application. The Affidavit is extensive and details the past history of care arrangements as well as the past history of violence by Mr Brandon towards the children’s mother and, to the extent that it within the Applicant’s knowledge, Mr Brandon’s comings and goings from his relationship with the children’s mother and his incarcerations.
As Mr Brandon has not sought to participate in these proceedings, but has been served with the Applicant’s material and thus had ample opportunity to respond to it, I am satisfied that I can accept
Ms Knightley’s evidence in its entirety, it being unchallenged and uncontroverted.
I do accept Ms Knightley’s evidence in its entirety and thus make findings of fact based upon such acceptance.
Service, notice and due process
Mr Brandon was personally served with the Applicant’s material some weeks prior to the first return date.
An Affidavit of personal service in accordance with the Federal Magistrates Court Rules 2001[1] has been filed deposing to that fact.
Mr Brandon did not, as required by the Federal Magistrates Court Rules, file material prior to the first return date of the proceedings[2].
[1] See Regulation 6.06.
[2] See Regulation 4.03 requiring that a Response (and Affidavit as required by Regulation 4.05) be filed within 14 days of service.
On the first return date, 23 October 2012, there was no appearance by or on behalf of the Respondent. Mr Brandon was, at that date, and continues to the present to be, an inmate at [B] Correctional Centre.
Whilst I am conscious of the disadvantages of such litigants, deprived of their liberty, and difficulties that might arise in their participation in proceedings I am also conscious that:
a)Such litigants routinely participate in proceedings before the Court;
b)Facilities exist through the Welfare Office of correctional facilities to provide assistance to inmates including assistance in participation in proceedings before the Court; and
c)The Federal MagistratesAct specifically allows, permits and encourages the use of technology to facilitate appearances and participation[3].
[3] See Division 5 Federal Magistrates Act (ss.66-71).
Whilst an inmate has some impediment to their participation they are not precluded from participating. The impediments can be addressed by the above provisions as well as through utilising New South Wales Legislation[4].
[4] Section 77 Crimes (Administration of Sentences) Act 1999 (NSW) No 93 provides for prisoners to be brought before a Court.
Inmates are equal before the law and are not deprived of their right to due process, including in civil proceedings and irrespective of the basis of their incarceration and any nexus of such circumstances to the evidence or judiciable issues before this Court[5].
[5] “Prisoners… should, so far as the law can allow, ordinarily have the same rights as all other persons before this Court. They have lost their liberty whilst they are in prison. However, so far as I am concerned, they have not lost their human dignity or their right to equality before the law”. Muir v The Queen [2004] HCA 21 at paragraph 25.
However, inmates are no more than equal. They are not a special or more privileged category of litigant. Certainly, one must be conscious of their impediments to accessing justice and do all that is available to ameliorate those difficulties. However, responsibility for participation and initiating participation (or steps or processes that might facilitate such participation) are the responsibility of the individual and not the Court.
The proceedings were adjourned for a fulsome period and orders made for Mr Brandon to file and serve a Response. This course was taken to ensure, in light of the above circumstances, that Mr Brandon had a further and relatively lengthy period available to place his case before the Court, engage in the proceedings and appear. Mr Brandon was notified of the orders made on the first return date both by the Court forwarding those orders to him (notwithstanding that he had not appeared[6]) as well as by the attorneys for the Applicant.
[6] See Regulation 6.01 Federal Magistrates Court Rules.
The notice given by the attorneys for the Applicant advised the adjourned date, what was required of Mr Brandon to participate and advised the orders to be sought on the next occasion and the likely consequences of non appearance (being the conclusion of the matter on a final and undefended basis in his absence).
I am satisfied that Mr Brandon has had more than abundant due process. He has been served personally with the proceedings some four months ago. He has been advised of the adjournment of the proceedings and the orders to be sought when the matter is before the Court today and has taken no step to seek to participate.
I am satisfied that even though Mr Brandon is incarcerated that he has had more than abundant opportunity to participate should he wish, this Court having more than ample facilities available to allow parties to attend electronically and with the assistance of welfare officers within the State Correctional system. The Respondent has simply failed to do so. I am satisfied that I can take that circumstance into account as regards Mr Brandon’s attitude not only to the proceedings but towards the children and his relationship with them.
I am satisfied that the matter can and should proceed to finality today and on an undefended basis. I am satisfied that I can safely take that course without denying due process to the Respondent. I am satisfied that to not take the step of concluding the matter would interfere with the Applicant’s right to due process noting the words of Eleanor Roosevelt that “Justice cannot be for one side alone but must be for both”.
Legislative Pathway
In dealing with the proceedings I am required to commence by considering the objects and principles of the legislation contained within section 60B of the Family Law Act 1975 (Cth). They incorporate the entirety of the International Convention on the Rights of the Child and establish certain rights for these children. They include a right to know and be cared for by both of their parents.
Regrettably that is unlikely to be the case for these children. However, they have the great benefit that they will be cared for in an entirely appropriate and competent fashion by their aunt who has stepped up to fill the role that their mother wished to fulfil but, regrettably, has not been able to and that their father has demonstrated he is incapable of filling, indeed, having done very little but to interfere in the competence of care for these children since their birth.
The objects and principles also contain at s.60B(3) a statement with respect to the children’s right to enjoy their culture. Subsection (3) provides that Aboriginal and Torres Strait Islander children have a specific right to enjoy their culture and to maintain a connection with that culture and to have the support and opportunity and encouragement necessary to fully explore that culture consistent with their age and development and to thus develop a positive appreciation of culture.
Right to culture is expanded upon in s.60CC(6) and so as to also require the Court to consider the right of an Aboriginal and Torres Strait Islander child to enjoy their culture, as a lived experience, with other persons of their culture.
The above is a particularly important consideration for these children as their culture will provide them with some real support and assistance, not only through life but in dealing with the tragic circumstances that have befallen their early years.
The Court is reminded by section 60CA that the children’s best interests are the paramount consideration in all that is done.
The presumption of equal shared parental responsibility
The Court is required to consider whether the presumption of equal shared parental responsibility applies pursuant to section 61DA.
If one were to adopt a limited definition of “parent”, so as to confine that term to a “biological parent”[7] then clearly the presumption cannot apply in this circumstance as the presumption could then operate only between [emphasis added] the biological parents[8].
[7] Curiously the use of the prefix suggests, of itself, the existence or potential for existence of different categories of parents or more expansive and inclusive definitions of “parent”.
[8] Section 61DA(1) provides “When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents [emphasis added - note the use of the plural and thus operation of the presumption as between the parents] to have equal [emphasis added – again note the assumption of plurality] shared parental responsibility for the child”.
On that basis and by operation of the Act it might be suggested that, were Mr Brandon participating in these proceedings, that he would have the benefit, as the surviving biological parent, of a presumption of parental responsibility in his favour. However, the presumption applies “between” parents and requires a plurality of parents. It does not create any specific right in favour of a surviving parent (however that term is defined).
I am not satisfied, however, that a limited interpretation of the term “parent” is required nor is such a definition reflective of the spirit of section 61DA.
The importance of the definition of parent
With no frivolity intended, the importance of definition is recognised in the words of Lewis Carroll’s character Humpty Dumpty as “When I use a word, it means just what I choose it to mean - neither more nor less”.
It is to be noted that there whilst there is a legislative presumption regarding equal shared parental responsibility between parents there is no presumption in favour of parents (jointly or severally) as regards the placement of children nor a presumption in favour of a parent as regards their relationship with a child (such as by spending time or communicating with them) and whether judiciable controversy arises between parents or as regards a parent and a non-parent. So much was established in the early jurisprudence of this Court by authorities such as Rice & Miller (1993) FLC 92-415[9].
[9] “…the fact of parenthood is to be regarded as an important and significant factor in considering which of the proposals best advances the welfare of the child. We would reiterate, however, that the fact of parenthood does not establish a presumption in favour of the natural parent nor generate a preferential position in favour of that parent from which the Court commences its decision making process. Each case must be determined according to its own facts, the paramount consideration always being the welfare of the child whose custody is in question” at paragraph 14.
Rice & Miller did accept the proposition that, all other things being equal, a parent would “generally” win favour as the preferred “custodial parent” (being the terminology of the time) over a non-parent.
Since the 2006 amendments there has been no authorative review of Rice & Miller and that is best left to the Full Court. However, the issue of “who is a parent?” has some real relevance in this case including by reference to the Aboriginality of these children.
Rice & Miller talked in terms of a “natural parent”. Nomenclature such as “natural parent”, “biological parent”, “emotional parent”, “psychological parent”, “step parent” and simply “parent” are all used throughout the case law. However, the legislation as regards parenting orders refers only to the definition simpliciter of “parent”[10].
[10] And, especially by reference to maintenance proceedings, “step parent”.
The legislation as presently framed has a significant focus upon parents. The vast majority of matters the Court must consider by reference to ss.60B, 60CC and 65DAA(5) require an evaluation of “parents” and including matters such as their relationships with children, attitudes, discharge of responsibilities and communication with each other. In a limited number of cases the Court is obliged to also consider persons other than parents[11].
[11] See ss.60CC(2)(b), (3)(b), (d), (f), (j) and (k).
Similarly, the term “family” is not defined in the Family Law Act (although reference is made to “members of the child’s family”). To the extent a “family” remains defined as a “nuclear family”[12] (comprising parent/s and children), this would appear a particularly outdated and unnecessarily constrictive, heteronormative and white Anglo Saxon perspective which fails to recognise diverse views of family arising for and within families of difference. This is particularly clear and pronounced when considering LGBTQ families but also relates to diverse cultural perspectives including, as arises in this case, broader kinship connections and culturally appropriate familial and cultural assistance in parenting children[13].
[12] As used by the Full Court in Rice & Miller.
[13] Issue might also arise with culturally and ethnically diverse cultures which have not adopted the Western post Industrial Revolution fixation upon the “nuclear family” and thus the growing body of jurisprudence within such societies similarly fixated upon the “right to privacy” and freedom from interference of such nuclear family units.
The configuration of “families”, and thus the definition of both that term and “parents”, has changed significantly since the Family Law Act was drafted and commenced operation in 1975. Each definition will, no doubt, continue to change and evolve. The definition of terms can change over time in response to changing societal circumstances[14].
[14] As evidence of same see, for example, the amended 2012 definition of “misogyny” adopted by the Macquarie Dictionary.
The new millennium screams out for a conversation, not only through the jurisprudence of the Court but within the broader community and academia, focused around an embracive and inclusive definition of the terms “parent” and “family”. Parliament (through the drafting of legislation) and the Court each have separate responsibility to be reflective of and responsive to the community they each serve.
Australian society is increasingly diverse and now accepts and recognises the rich diversity reflect by LGBTQ communities[15], non Anglo-Saxon cultures and other communities of difference including Aboriginal and Torres Strait Islander communities, the first nations people of Australia, whose kinship structures and connections have, for far too long, been, at best, misunderstood or, at worst, ignored and disregarded with contempt as demonstrated through past policies of assimilation and as was the subject of the Apology to the Stolen Generations on 13 February 2008.
[15] An authoritative and excellent discussion of such developments and judicial responses thereto, within the American experience, can be found in “Courting Change: Queer Parents, Judges, And The Transformation Of American Family Law”, By Kimberly D. Richman. New York: New York University Press, 2009.
There are provisions within the Family Law Act which specifically recognise categories “parent” other than a definition based solely upon biological connection[16].
[16] See ss.60H, 60HA and 60HB.
The interpretive and definitional provisions of the Act (section 4) contains a limited definition of parent being:
“parent” , when used in Part VII in relation to a child who has been adopted, means an adoptive parent of the child.
It could be argued that a limited and biology based definition is implied though:
a)The definition of parent (above) specifically recognises parentage arising from the legal process of adoption (a principal recognised in antiquity and Roman law). Adoption essentially represents the legal sublimation of biological parents and is thus not inconsistent with a focus upon a biological nexus model;
b)The inclusion within the legislation of provision for “parentage testing procedures” (see s.4 and Part 7 Division 12E) focuses upon biological connection to a child in the definition of “paternity” (although not necessarily constricting the adoption and recognition of broader categories of “parents”);
c)The presumptions of parentage contained within Part 7 Division 12D which, again, are focused upon the child’s conception whilst two people are in one of a variety of relationships with each other (and clearly demonstrating the intrusion into the private realm, generally not seen within litigation, created by enquiries as to “paternity” ).
A consideration of the term “paternity” (as distinct to the term “parent” which is generally used in a more gender neutral context) also suggests an inherent antiquity and sexism such definitions being focused upon the determination of fatherhood[17] and specifically (as regards child maintenance provisions) with financial considerations or ramifications.
[17] The Macquarie dictionary defines “paternity” derivation from a father.
If one then accepts that “paternity” is far more focused upon the determination of the male donator of genetic material than definition of the term “parent” (and being focused upon male biological lineage parentage cannot address the entirety of the question “who is a parent?” and is readily identified as separate and distinct and distinguishable from that question) then the above child maintenance provisions (such as presumptions of paternity and prescription of parentage testing procedures) are unlikely to be of great assistance or contribution to the discussion of and answer to the question “who is a parent?”.
Within the Family Law Act the above provisions (regarding parentage testing and presumptions of paternity) are all referable to applications for child maintenance. That might also, perhaps, allow a distinction between those biology focused provisions and a broader definition and acceptance of “parent” for the purpose of determining children’s future non-financial arrangements.
Two portions of the above child maintenance provisions potentially support a broader approach being:
a)Those provisions dealing with potential liability of a “step parent” to maintain a child; and
b)The presumption of paternity arising from acknowledgement.
That a step parent who has an ongoing relationship with a child (by Court order) can be assessed to be financially liable for the child’s support even without biological connection or rights created by adoption might imply an acceptance of recognition of that step parent as an “emotional” or “psychological” parent. Further, the imposition of a financial obligation to support when an ongoing emotional relationship (and thus the voluntary provision of non financial support) exists might be seen as vesting or completing the totality of parental responsibilities within that adult.
Similarly, the ability to acknowledge “paternity” might be seen as allowing a “de facto” adoption of the label “parent” by a [necessarily male] person submitting to and “acknowledging” paternity[18] and all that goes with that acknowledgement including adoption of the role of parent
[18] The Births, Deaths and Marriages Registration Act 1995 (NSW) and the definitions contained therein might suggest that an acknowledgement made with knowledge of no biological connection to a child might attract a penalty for a false declaration.
Beyond the above there is no definition within the Act of either “parent” or “family”. The absence of such definition perhaps implies, or at the very least allows, a broader approach to the definition of those terms and the adoption of a definition more specific and personal to each individual circumstance.
The broad discretion created by and within the Act, to operate on the basis of the paramouncy principle but otherwise with abundant scope for the exercise of that discretion, is reflective of the indeterminacy of Family Law in general and the expansion of such indeterminacy to the definition of “parent” would be far from novel.
Much Commonwealth legislation is consistent with the Family Law Act in the definition of “parent”[19].
[19] See for example s.5 of the Child Support (Assessment)Act 1989 (Cth); Same-Sex Relationships (Equal Treatment In Commonwealth Laws-General Law Reform Act) 2008 (Cth); and s.5 of the Social Security Act 1991 (Cth).
Some Commonwealth legislation includes within its definition of “parent” a person who is accepted (by Court order or otherwise) as a parent under the provisions of the Family Law Act or other legislation[20]. Some Commonwealth legislation adopts a broader approach to the definition[21].
[20] See for example s.197 of the Social Security Act 1991; s.3 of the Australian Citizenship Act 2007 (Cth); and s.5CA of the Migration Act 1958 (Cth).
[21] For example, for the purpose of Family Stream Migration Parent includes a natural (biological) parent, an adoptive parent, a step-parent, the parent of a child conceived through an artificial conception procedure and the parent of a child born under surrogacy arrangements, where parentage has been transferred by court order under a prescribed State or Territory law.
Section 60H of the Family Law Act recognises that if two people are in a relationship with each other at the time that one of them, with the knowledge and consent of the other, becomes pregnant through a child being conceived by an artificial conception process, then the parties to that relationship, including, importantly, a same sex couple (but by definition lesbian relationship), are then both “parents”. Thus the direct and specific nexus between the term “parent” and a person’s biological connection or nexus with a child is broken.
Definitions of terms such as parent and family are fundamentally important as International Law[22] protects the “family” as the fundamental unit of society and commands that the family be afforded special protection. A limited, constrictive definition might erode those mandated protections and would, in all probability, be culturally inappropriate.
[22] See for example Article 10 of the International Covenant on Economic, Social and Cultural Rights which states “The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children”. Such rights are also domestically enacted as s.43(1)(b) of the Family Law Act as a principle to be applied in proceedings under the Act.
Commonly accepted English language definitions are primarily but exclusively focused upon biology. However, increasingly definitions accept, at least as a secondary definition, a broader scope. These include:
The Oxford Dictionary is somewhat biologically (and paternally so) focused and defining “parent” as:
· a person’s father or mother
· archaic a forefather or ancestor
· an animal or plant from which new ones are derived[23]
[23] The McMillan Dictionary definition is in similar terms.
Interestingly, the Oxford Dictionary also acknowledges within its definition what might be categorised as practical, social or emotional parenting by including:
· be or act as a mother or father to (someone)
The Collins Dictionary adopts a slightly more expansive definition of parent being:
· a father or mother
· a person acting as a father or mother; guardian
· (rare) an ancestor
The Macquarie Dictionary offers the broadest definition being:
· a father or a mother.
· a progenitor.
· an author or source
· a protector or guardian
· any organism that produces or generates another
· Something which is operating at a level higher than the base level and which controls everything below it.
· to fulfil the role of parent.
· to be or act in the role of a parent towards (a child).
· of or relating to, or functioning as a parent [emphases added]
Similarly the Macquarie Dictionary’s definition of “family” concludes with a move towards a perception or experiential definition rather than one focused on biology and being:
…a group of persons who form a household and who regard themselves as having familial ties.
This is perhaps the first step towards a definition focused on the personal rather than collective acceptance models and timely as regards the broader conversation within our society regarding the granting or withholding of rights to individuals and groups which rights are available to others (such as those dialogues focused around same sex marriage and constitutional recognition of first nations peoples).
Culture is particularly important in interpretation and definition of family – the Anglo-Saxon “nuclear” family has no application to the extended family and kinship connections fundamental to the Aboriginal and Torres Straight Islander understanding of “family”.
In the circumstances of this case there is a significant level of cultural appropriateness in the present care arrangement and having regard to the matriarchal culture from which both of the Ms Knightleys have derived.
Were Mr Brandon participating in these proceedings the issue of “who is a parent?” would potentially assume substantial significance. In those circumstances I would require (as is not available at this time) specific evidence as to cultural practice within each of the [omitted] and [omitted] mobs and aimed at not only ensuring the Court’s obligations pursuant to ss.60B and 60CC were discharged but also in determining who might be considered, within those cultural parameters, as “parents” of these children.
Any number of factors, other than biology, might be properly considered in determining the question of “who are a child’s parents?” These might well include:
a)Does culture and practice recognise the importance or primacy of biology[24]?
b)Who has and does “parent” the child[25];
c)Has an order been made by a Court which gives an adult responsibility for “parenting” the child[26];
d)Defined by role and discharge of role?
e)Has an order been made which imposes or confers parenting obligations or responsibilities and, if so, should the making of a “parenting order” infer that the person with the benefit of the order is a “parent”?
f)Should the use of the noun and verb “parent” and “parenting” respectively been seen as mutually exclusive or one implying and adopting the other?
g)Being cognisant of the distinction between the terms “mother”, “father” and “parent” need one necessarily consider oneself to be (or be considered) a mother or father to be considered a parent?
h)Need the determination of parents be numerically confined to two?
i)Is a person’s knowledge (whether that of the child or a putative parent) relevant to determination of the question (for example, if a parent believes an adult to be their parent is that not their reality and is any other reality relevant? Is the male whom the child believes to be their parent (or father) and has attended to their care less than a parent solely as they did not fertilise an ovum?)
[24] For the purpose of such a consideration “culture” need not be limited to ethnicity and might embrace the culture and practice of a particular community such as LGBTQ communities.
[25] Some support for such an approach might be taken from the Children and Young Persons (Care and Protection) Act 1998 (NSW) definition that a “parent of a child or young person means a person having parental responsibility for the child or young person” and “parental responsibility, in relation to a child or young person, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children” whilst accepting a degree of circularity in the definitions.
[26] Ibid.
Such an approach begs the question “Is biology relevant at all?”
Does the presumption apply as between these parties?
In this case and having regard to:
a)The ages of the children both now and at the time of their mother’s death;
b)The Respondent father’s absence from the children’s lives;
c)The assumption of parenting responsibility by the children’s aunt, Ms Knighley;
I am satisfied that I would be entitled to consider Ms Knightley as a “parent” for the purpose of this Application. If I had evidence of cultural practice within the [omitted] mob and that practice being consistent with such a finding I would not hesitate to do so. However, absent such evidence and entirely to ensure that I do not misrepresent the law and culture of the [omitted] mob and out of respect for that law and culture I will not do so in this instance.
If such a finding were made by me then I would have no hesitation in accepting that Ms Knightley would be entitled to the benefit of the presumption in her favour and were it to not be displaced by other findings.
Irrespective of the above I am, in any event, satisfied that the presumption could not apply as I am satisfied that Mr Brandon has perpetrated family violence.
Following upon such finding and for the reasons set out hereafter I am satisfied than an order for sole parental responsibility should then be made in Ms Knightley’s favour.
Lest I am wrong with respect to the above (and such that Mr Brandon is to be treated as the sole “parent”) then I am satisfied that the presumption cannot apply or be made available to Mr Brandon as:
a)The presumption is of equal shared parental responsibility between parents and as the children’s biological mother Ms K is deceased and Mr Brandon is the only surviving biological parent there could not be any such presumption. It is a fiction if not a nonsense; and
b)In any event there has clearly been family violence perpetrated by Mr Brandon and thus, on any view and by operation of s.61DA(2), the presumption could have no application.
I am more than abundantly satisfied that there has been family violence by reference to Mr Brandon’s conviction and sentencing[27] and, further, accepting Ms Knightley’s evidence in its totality as it is unchallenged and Mr Brandon having had ample opportunity to challenge her evidence.
[27] See s.69ZX(3) of the Family Law Act 1975 and Regulation 15.06 Federal Magistrates Court Rules.
However, the application or non-application of the presumption does not, in any way, bind the Court’s exercise of discretion with respect to allocation of parental responsibility as is quite clear from the remaining provisions of the legislation.
Ms Knightley is a person more than entitled to make Application to the Court. The Court is entitled, pursuant to s.65C, to entertain an Application for parenting orders by a parent, a grandparent or other relative person who can demonstrate a sufficient interest in the future care, welfare and development of these children.
Section 64C makes clear that a parenting order can be made in favour of someone other than a biological parent.
Clearly, Ms Knightley falls squarely within one or more of the above categories and her Application is properly and appropriately before the Court.
The Court is then empowered to make orders in favour of
Ms Knightley including an order for parental responsibility. I propose in due course to make an order for sole parental responsibility in favour of the Applicant, Ms Knightley. That arises as I am satisfied, for reasons that will become apparent, that it is both in the children’s best interests and that it is the only reasonably practical order that can be made.
As the presumption does not apply I am not mandated to consider equal or substantial and significant time being spent by the children with any person including Mr Brandon. Time arrangements thus remain at large.
Section 60CC
In turning to section 60CC, which prescribes the matters that must be taken into account in determining what is in the children’s best interests, I am required to commence with a consideration of the primary consideration being:
a)The benefit to the child of having a meaningful relationship with both parents; and
b)The need to protect the child from physical or psychological harm.
As these proceedings have been commenced post the 7 June 2012 amendments, section 60CC(2A) applies and thus the two primary considerations are prioritised so as to ensure that a consideration of physical and psychological protection is prioritised over any consideration of the children’s meaningful relationship with a parent.
That amendment, of itself, is largely unnecessary or at least a recognition and codification of the jurisprudence of this Court as it has developed since the 2006 amendments which recognised that the exposure of children to physical or psychological harm outweighs and must, of necessity, outweigh any other consideration. It is difficult to understand circumstances in which it could be suggested that a meaningful relationship could develop between a parent who has been found to have perpetrated or found to be a risk of perpetrating physical or psychological harm to children.
In any event that prioritisation has some real meaning in this case. Clearly the father of these children, Mr Brandon, has done little but perpetrate misery upon these children, both by directing violence towards their mother and by the children’s exposure to his behaviours of both drunkenness and violence.
The definitions of family violence and abuse in section 4AB and section 4 of the legislation respectively largely overlap. Abuse specifically includes the exposure of children to the behaviours that have been perpetrated by Mr Brandon and which behaviour would fall within the definition of family violence in section 4AB.
Thus I am satisfied, on the evidence available, that these children have been exposed to both family violence and abuse by their father, and that this has and will continue to expose the children to a risk of physical and/or psychological harm, if not the reality of harm occasioned to them thereby.
As regards the benefit to the children of a meaningful relationship with both parents, regrettably these children are now deprived of the opportunity of having a direct physical relationship with their biological mother. However, their relationship with their biological mother can continue through her being kept alive in the children’s minds and being part of their lives, on an ongoing basis, through memory and through the practice of and connection with their mother’s rich cultural heritage being the oldest living culture on the face of this planet. That relationship will best be maintained through the orders that are sought by the children’s aunt (and whom, subject to the above comments, I would be prepared to also accept as a parent both prior to and following the demise of the children’s biological mother, the Applicant’s sister).
I am satisfied that the children do not presently have a meaningful relationship with their father. He has had precious little to do with them in their short lives. When he has come into contact with them it has largely been in an intoxicated state and whilst perpetrating violence upon their mother in their presence.
Accordingly, I am not satisfied that these children presently have a meaningful relationship with their father nor am I satisfied that there is any benefit to the children of having a meaningful relationship with their father. I satisfied that there is not any present benefit to these children of having a relationship with their father by reference both to their best interests and reasonable practicality.
It is to be noted that the father is serving a sentence at [B]. The Applicant lives in the Sydney metropolitan area. Accordingly, there would be some significant difficulty and the Applicant would be put to an entirely inappropriate, onerous and unacceptable impost in seeking to facilitate any connection by these children with their father.
In any event the father does not seek to pursue any such relationship, although I am satisfied he has had more than abundant opportunity to do so should he wish.
In turning to the additional considerations.
Views
There is no evidence of the children’s views and at their ages it would not be a significant or determinative factor.
The nature of the children’s relationship with each parent and other persons, including grandparents or other relatives
Clearly these children’s primary relationship, at this point in their life, is with the Applicant. That is a relationship that serves their needs and serves their needs well.
The children do not presently have a relationship with their father.
The extent to which each parent has taken or failed to take the opportunity to participate in decision-making or spend time with the children
Clearly, Mr Brandon has made no attempt to participate in these proceedings, which would be the most direct and active means by which he could seek to participate in decision-making or communication with his children. His failure to do so speaks volumes of his attitude towards them. That attitude is otherwise demonstrated through his actions prior to his incarceration.
The basis upon which he has been incarcerated is noteworthy. He is serving a period of five years imprisonment for breaching a domestic violence order relating to and protecting the children’s mother. It is also to be noted that that breach occurred at a time when the children’s mother was attempting to care for these children with the significant impost imposed upon her of suffering from and being treated for a terminal illness. Such actions are reprehensible and disgusting. No doubt the length of his sentence is reflective of both that circumstance and the actions in which he engaged.
The extent to which each of the children’s parents will fill or fail to fulfil their obligation to maintain the child
Mr Brandon has not, is not, and in all probability will not meet that obligation in the future. Ms Knightley has more than adequately and abundantly met such obligations.
Likely effect of any change, including separation from either parent or any other person
I am satisfied there would be an entirely detrimental impact on these children of separation from the Applicant. Ms Knightley has been involved in their care since birth. She has been their primary carer since their mother’s demise and has played a significant role in their care during their mother’s illness prior to her passing. She is, for all intents and purposes, the children’s sole parent (whether she is seeking be referred to by that term or not and intending such observation with nothing but respect for the children’s biological mother deprived of fulfilling the role she desired).
In those circumstances it would be incomprehensible to suggest that these children would be cared for by any other person or would be separated in any fashion or for any period from their carer, being the Applicant.
Even if I were to consider a change in the children’s living arrangements there is no viable alternative. Mr Brandon is incarcerated for family violence offences and has some years of his sentence left to serve. There is neither any other Applicant nor any evidence of any other interested person to whom notice would be required.
Practical difficulty and expense
I will deal with this as part of section 65DAA(5).
Capacity of each parent and other persons to meet the children’s needs including emotional and intellectual needs
Ms Knightley is abundantly capable of caring for these children’s needs and has more than abundantly demonstrated her capacity to do so.
Mr Brandon has correspondingly demonstrated his incapacity and his lack of insight into the children’s needs. Thus I could have no confidence or satisfaction that he is capable of providing positive benefit to them at this time nor a positive or appropriate role model.
Maturity, sex, lifestyle and background to the children
These children are very young. They are entirely dependent upon grown ups for their care, nurture and support. That nurture, care and support is and has, for the majority of these children’s lives, been provided by Ms Knightley.
I am satisfied that any interference with or any strain upon that arrangement, such as would be imposed, for instance, by requiring
Ms Knightley to travel to [B] to enable these children to communicate with their father or see him for limited periods within a prison environment, would be entirely unacceptable, counter productive and contrary to the children’s bests interests.
Any interference with and any action other than full and active support of these children’s care, placement and nurture by Ms Knightley would be unacceptable.
The children’s Aboriginality and their right to enjoy their culture and the impact upon any proposed parenting order of that right
These children will be cared for by their aunt. That reflects an entirely appropriate and culturally appropriate matriarchal arrangement and placement. That is so notwithstanding Ms Knightley being entitled to be considered, but for the above reservations, as the children’s parent (and I again make clear that I have not, for the reasons expressed, proceeded to such a finding).
The children’s placement with Ms Knightley is also entirely consistent with Ms Knightley’s wishes and desires as expressed by her not only to her sister but also through her last will and testament. That is not to suggest that this Court’s jurisdiction is fettered by the expression of such testamentary views. However, it is made entirely clear, through Ms Knightley’s will, that it is her hope, wish and desire that her two children be cared for by her sister.
Such an arrangement will enliven these children’s rights pursuant not only to the Family Law Act but the International Convention on Economic, Social and Cultural Rights[28] and the United Nations Declaration on the Rights of Indigenous Peoples. Those broader rights, to the extent they may not be enacted within the Family Law Act being relevant to interpretation and application of the Family Law Act by reference to authorities such as Mabo and Ors v Queensland (No 2) [1992] HCA 23 175, Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 and B and B v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FamCA 451 199.
[28] Article 15 creates a right to enjoy culture.
Thus the Court can do the best that it can to ensure that these children’s needs are met not only on a practical level but from a spiritual and cultural perspective through the orders that are sought.
Attitude to the child and the responsibilities of parenthood demonstrated by each parent
Clearly the attitude Ms Knightley has demonstrated is humane, decent and consistent with her cultural practice and her relationship with these children. She has stepped in to ensure that these children’s needs are met. She has taken on the role, if not the title, of parent. If she had not done so and noting that Mr Brandon is not only practically incapable, but it would appear emotionally incapable, of meeting these children’s needs, then these children may have become part of the entirely unacceptable proportion of Indigenous children in out-of-home care. That would be a greater tragedy for these children than that which they have already experienced.
The children’s care by Ms Knightley is reflective of the entirely appropriate attitude she has demonstrated. The attitude demonstrated by Mr Brandon is addressed above and needs no further comment.
Family violence involving the children
The only family violence to which these children have been exposed has, regrettably, been perpetrated by their father. That can be brought to an end through the orders that are proposed by Ms Knightley.
Family violence orders
There are none of which the Court is advised or which are presently enforced.
Whether it is preferable to make orders that will least likely lead to the institution of future proceedings
No orders are sought other than those sought by Ms Knightley.
Mr Brandon has not chosen to participate in the proceedings and has not sought any order on his behalf. Even if he had I would not be satisfied that this would satisfy the Court’s obligation to avoid future proceedings.
It is unlikely Mr Brandon would be other than troublesome and mischievous (at least in the absence of significant reform and change of behaviour) and the practical difficulties that would be attendant to any order that might be made in his favour, even if the Court were to consider it of the Court’s own volition, would simply create further uncertainty and potential for proceedings by way of enforcement or otherwise.
Practical Difficulty and Reasonable Practicality
With respect to other facts and circumstances I turn to and incorporate section 65DAA(5).
It is to be noted that Mr Brandon and Ms Knightley are a significant distance apart, Mr Brandon serving a sentence in [B] and there being no evidence to suggest that this location will change in the foreseeable future. Ms Knightley is in the Sydney metropolitan area.
It would be entirely impracticable for Mr Brandon to spend time or communicate with the children even if such Application were before the Court. It would be entirely impracticable for orders to operate in those circumstances.
The parent’s current and future capacity to implement an arrangement is, I am satisfied, less than satisfactory. It would be entirely unreasonable to expect Ms Knightley to actively support, encourage and facilitate a relationship between these children and Mr Brandon in the above circumstances wherein Mr Brandon has perpetrated significant violence upon the children’s biological mother,
Ms Knightley’s sister, and at a time when she was dying.
Subsection (c) requires that I address the parent’s current and future capacity to communicate with each other. Again it would be unreasonable to expect Ms Knightley to play a role in seeking to engage with, communicate with and resolve issues with Mr Brandon. It may well be that this might occur in the future and I have no doubt whatsoever that Ms Knightley would, if that were in the children’s best interests, take those steps no matter how personally painful or difficult it were for her, as she has demonstrated an entirely appropriate attitude both consistent with her actions as a parent to these children (and I use that term advisedly) as well as consistent with her cultural practice.
I must consider the impact of any arrangement on the children. I am satisfied that the only arrangement that could possible be ordered with respect to these children is a continuation of their care by the Applicant. She is doing an excellent job in caring for them and their needs are being met on every level and including culturally and spiritually.
In those circumstances any change to that arrangement would be unwarranted.
Orders
For all of the above reasons I am satisfied that the relief sought by
Ms Knightley is entirely appropriate, and I make orders in accordance with paragraphs 1 and 2 of the orders sought by Ms Knightley in her Application filed 12 September 2012.
I otherwise dismiss all outstanding Applications and remove all issues from the list of cases awaiting hearing.
I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of Harman FM.
Associate:
Date: 20 February 2013
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