L and B - [2005] FMCAfam 270

FEDERAL MAGISTRATES COURT OF AUSTRALIA

L & B

[2005] FMCAfam 270

FAMILY LAW – Children – application for residence of child by neighbour following death of mother – threshold issue if applicant a person concerned with the care, welfare and development of the child.

Family Law Act 1975 (Cth), s.65C

Kam v MJR; JIG (1999) FLC 92,847

Applicant:

Respondent:

File Number:

PAM 1108 of 2005

Judgment of:

Emmett FM

Hearing date:

15 April 2005

Date of Last Submission:

15 April 2005

Delivered at:

Parramatta

Delivered on:

15 April 2005

REPRESENTATION

Solicitors for the Applicant:

Ms Roach, Harman & Co Solicitors

Solicitors for the Respondent:

Ms Tydd, Legal Aid Commission NSW

ORDERS

The Application for Final Orders is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 1108 of 2005

Applicant

And

Respondent

REASONS FOR JUDGMENT

Application is made by the Applicant that the child, PB (“the Child”), reside with the Applicant. The Applicant seeks interim orders that the Child reside with the Applicant and that the Respondent have contact. The final orders sought by the Applicant are in similar terms. The Applicant relies in support of her Application on her Affidavit, sworn 10 March 2005, and filed on 11 March 2005.
The Respondent is the maternal aunt of the Child and opposes the orders sought by the Applicant and sought orders only for the dismissal of the Application. The Child presently resides with the Respondent.
The orders sought by the Applicant are plainly parenting orders. Section 65C of the Family Law Act provides that a parenting order may be applied for by either or both of the children’s parents, the child, a grandparent of the child, or any other person concerned with the care, welfare or development of the child.
The Applicant brings her Application on the basis that she is a person concerned with the care, welfare or development of the Child. I am of the view that that is a threshold issue that must be determined before the Court as to the jurisdiction that the Court would otherwise have in respect of the proceeding before it. A similar view was expressed by Burr J in Kam v MJR; JIG (1999) FLC 92,847 at 85,929, where his Honour stated:
“In order to proceed beyond the mere making of the application, the Applicant for a parenting order must demonstrate that they are a “person concerned with the care, welfare or development of the child”. In my view this imposes a threshold test, it being a test to be determined on the individual facts and circumstances of each case”.
In considering the issue of whether or not the Applicant is a person concerned with the care, welfare or development of the Child, I intend simply to refer to the evidence of the Applicant at this stage. It is for the Applicant to satisfy the Court that she is such a person. For the purposes of determining the threshold issue of this Application, I have accepted the evidence of the Applicant.
The Applicant states in her Affidavit that until about 9 months ago she lived next door to the Child’s mother and her family. The Child’s mother passed away on 27 February 2005. The Applicant deposes that she first met the Child’s mother in the middle of 2000 as a next door neighbour. She states in her Application that she and the mother developed a close and strong relationship and that the mother confided in her during that period.
The Applicant stated that she and the Child’s mother would take their children shopping together, walk their children to the park and play together and enjoy many other outings together. The Applicant has a child of a similar age and both children grew up as neighbours and friends until shortly after the mother passed away.
The Applicant deposes that in mid-January 2005 the mother was admitted to hospital and that she was not aware that the mother was ill until she was admitted. The mother was in hospital for a period of

4 weeks and, during that time, the mother’s children, including, PB, were placed in foster care.
Following the mother’s discharge from hospital the children were returned to her care, however the Applicant states that the mother was then readmitted to hospital towards the end of February for a further

2 weeks before she passed away. The Applicant deposes that during the last 2 weeks the Child was placed in her care, although the circumstances of how she came to be placed in her care are not deposed to.
There was then some communication between the Applicant and the Department of Community Services (DOCS), resulting in the child being placed with the Respondent, being the Child’s maternal aunt. The Respondent and her husband had contact with the Child from

4 March overnight to 5 March, the 5 March being a Saturday, and on the Monday the Child left to live with the Respondent, where she has remained until today.
I note that on the 2 March 2005 a notice was provided to the Applicant notifying her that she was required to cease providing unauthorised care or accommodation for the Child.
It would appear from the evidence before me that the Applicant had the care of the Child for a period of 2 weeks prior to the passing away of the mother at the end of February, and for the few days following the passing of the mother, until the Child was placed by DOCS in the care of the Respondent. Whilst I am prepared to accept that the mother and the Applicant had a close friendship, and that the Child saw a great deal of the Applicant and her son, I do have regard to the fact that the Applicant had not lived next door to the mother for the last 9 months, was about 10 minutes away, and was not aware when the mother was admitted to hospital, where she was admitted for a period of 4 weeks.
During that time it is not suggested by the Applicant, or any other person, that the Child was placed in the care of the Applicant, rather the Child was placed in foster care.
The period of primary care in respect of which the Applicant was responsible for the Child is relatively short and no longer than friends with children the same age would help each other in the ordinary course without intending to create in the other a right to a parenting order. It is of significance that the mother did not seek to make the Applicant aware that she was in hospital for 4 weeks in January 2005, that the Child was placed in foster care during that time and that DOCS did not leave the Child in the Applicant’s care following the death of the mother. These facts do not support a contention that the Applicant is a person sufficiently concerned with the care, welfare and development of the Child such as to entitle her to a parenting order.
Accordingly, in the circumstances, I find that the Applicant is not a person concerned with the care, welfare, or development of the Child.
Having regard to the finding I have made, there is no jurisdictional basis for the Court to entertain the Application. Accordingly, the Application is dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S Riddle

Date: 3 May 2005