Laurita and Anor and Morda
[2012] FMCAfam 1439
•14 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LAURITA & ANOR & MORDA | [2012] FMCAfam 1439 |
| FAMILY LAW – Children – parenting – interim orders – parental responsibility – equal shared parental responsibility – where orders previously made by consent giving shared parental responsibility to both applicants and the respondent – whether order to be varied on an interim basis – whether the child has two parents or three parents – standing to apply for parenting orders – standing to apply for parental responsibility. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 64B, 64C, 65C, 65DAA Federal Magistrates Court Rules 2001 rr.15.09, 15.11 |
| A v B,C [2012] EWCACiv285 Goode v Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 Re J and M: Residence Application [2004] FMCAfam 656; (2005) 32 Fam LR 668 KAM v MJR [1998] FamCA 1896; (1998) 24 Fam LR 656; (1999) FLC 92-847 Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 R & M [2002] FMCAfam 279 Tran & Ngo [2012] FMCAfam 1352 |
| First Applicant: | MR LAURITA |
| Second Applicant: | MR MALETTA |
| Respondent: | MS MORDA |
| File Number: | SYC 4990 of 2012 |
| Judgment of: | Scarlett FM |
| Hearing date: | 7 December 2012 |
| Date of Last Submission: | 7 December 2012 |
| Delivered at: | Sydney |
| Delivered on: | 14 December 2012 |
REPRESENTATION
| Counsel for the Applicants: | Mr Batey |
| Solicitors for the Applicants: | Clayhills Solicitors |
| Counsel for the Respondent: | Mr Lethbridge SC |
| Solicitors for the Respondent: | KDB Holmes Solicitors |
ORDERS
UNTIL FURTHER ORDER
The child [X] born [in] 2005 is to live with the Respondent.
The child [X] is to spend time with the First Applicant and the Second Applicant as follows:
(a)Until the conclusion of the 2012 school year each Saturday from 10:00 am until 7:00 pm;
(b)During the December 2012/January 2013 school holiday period:
(i)Each Friday and Saturday from 10:00 am to 7:00 pm; and
(ii)On Christmas Day 2012 from 11:00 am to 4:00 pm.
(c)From the commencement of the 2013 school year:
(i)Each alternate weekend from 10:00 am on Saturday until 4:00 pm on Sunday;
(ii)Every other Saturday from 10:00 am to 7:00 pm; and
(iii)On one afternoon after school each week from the conclusion of school until 7:00 pm.
(d)On the First Applicant’s birthday [date omitted] from after school until 7:00 pm;
(e)On the Second Applicant’s birthday [date omitted] for a period of three (3) hours at times arranged between the parties;
(f)From 10:00 am to 7:00 pm on Father’s Day if that day should fall on a day when the child would not otherwise be spending time with the Applicants; and
(g)On the child’s birthday [date omitted] from after school until 7:00 pm
Notwithstanding the provisions of Order (2) above the child will live with the Respondent and not spend time with the Applicants on:
(a)The Respondent’s birthday [date omitted] in each year; and
(b)Mother’s Day.
Between 14 and 28 January 2013 the child [X]’s time with the Applicants will be suspended to permit the child to travel to Melbourne with the Respondent.
The Respondent is to do all acts and things necessary to permit the child [X] to telephone either or both of the Applicants at all reasonable times when she is in the care of the Respondent.
The Applicants are to do all acts and things necessary to permit the child [X] to telephone the Respondent at all reasonable times when she is in the care of the Applicants.
The parties are restrained by injunction from discussing these proceedings with the child or in her presence or hearing or from showing her any Court documents connected with these proceedings.
As provided by Rule 15.09 Mr L is appointed as Court Expert to inquire into and report on the relationship between the child [X] born [in] 2005 and each of the parties to the proceedings.
For the purposes of preparation of the Court Expert Report the parties are to do all things necessary to cause themselves and the child [X] to attend upon Mr L at all times and places advised by Mr L from time to time.
For the purposes of the Court Expert Report Mr L is to investigate and report on any other matter relevant to the welfare of the child [X].
The Applicants and the Respondent are to be jointly liable to pay the reasonable remuneration and expenses of the Court Expert for preparing the report.
IT IS NOTED that publication of this judgment under the pseudonym Laurita & Anor & Morda is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 4990 of 2012
| MR LAURITA |
First Applicant
| MR MALETTA |
Second Applicant
And
| MS MORDA |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application for interim parenting orders in respect of a little girl called [X] who was born on [omitted] 2005. [X] is seven years old and she lives with her mother, the Respondent.
There are two Applicants. The First Applicant is [X]’s biological father. The Second Applicant is the First Applicant’s partner.
The child was born by artificial insemination.[1]
[1] Affidavit of Mr Laurita 21.8.2012 at paragraph [4]
The Applicants seek orders as set out at Annexure B of their Amended Application filed in Court on the morning of the hearing.
The orders that they seek are, in summary:
a)An order that each of the Applicants and the Respondent have the sole parental responsibility for day to day decisions concerning the child when she is in their respective care;
b)That [X] should live with the Applicants and the Respondent:
i)During the school term, from after school on the first Wednesday of the fortnight until before school on Monday morning and from after school on the second Wednesday until before school on the following Friday;
ii)For half of each school holiday period;
iii)From 9:00 am on Christmas Eve to 1:00 pm on Christmas Day in even numbered years and from 1:00 pm on Christmas Day to 6:00 pm on Boxing Day in odd numbered years;
iv)On the child’s birthday; and
v)On each parent’s birthday;
c)That [X] be permitted to telephone the Applicants and the Respondent when she wishes to do so;
d)Except in an emergency or an urgent situation the parties are to communicate by email or SMS text message;
e)The parties are to notify each other of any emergency or serious medical injury or illness sustained by [X] whilst she is in their care;
f)The parties are permitted under s.65Y(2)(b) to take the child out of Australia on providing appropriate notice and necessary information not less than six weeks prior to the date of intended travel;
g)The parties are permitted to revel interstate with the child on providing appropriate notice and necessary information not less than 14 days prior to the date of intended travel;
h)The parties are to be restrained from questioning the child or discussing issues relevant to the court proceedings with the child or any person associated with the child’s school or extra-curricular activities; and
i)The parties are to be restrained from removing the child from [omitted] Public School.
In a document entitled “Minutes of Order sought by the Respondent Mother” the Respondent seeks the following interim Orders:
1. That the child [X] born [omitted] 2005 (“[X]”) live with the Respondent Mother.
2. That [X] spend time with the First Applicant Father as follows:
(a) until the conclusion of the 2012 school year each Saturday from 10am to 7pm;
(b) during the December 2012/January 2013 school holiday period:
(i) each Saturday from 10am to 7pm; and
(ii) on 1 additional day each week as agreed between the first Applicant and the Respondent Mother and, if not agreed, on Fridays from 10:00 am until 7:00 pm;
(iii) on Christmas Day from 11:00 am to 4:00 pm;
(c) from the commencement of the 2013 school year:
(i) each Saturday from 10am to 7pm; and
(ii) on one afternoon after school per week from the conclusion of school until 7pm.
(d) from March 2013:
(i) each alternate weekend from 10am Saturday to 10am Sunday commencing on 2 March 2013;
(ii) every other Saturday from 10am to 7pm; and
(iii) on one afternoon after school per week from the conclusion of school until 7pm.
3. That during the December/January school holiday period [X]’s time with the Father be suspended for one period not exceeding 2 weeks to permit [X] to travel to Melbourne with the Mother, and such period be agreed between the parties and if not agreed as nominated by the Mother in writing at least 14 days prior to the intended departure date.
4. 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 the 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.
Background
The First Applicant was born on [omitted] 1969. He is 43 years old, about to turn 42 in [omitted] 2013. The Second Applicant was born on [omitted] 1965, so he is therefore 47 years of age.
The Applicants have been in a relationship as partners for 18 years.
The Respondent mother was born on [omitted] 1972. She is 40 years of age and will therefore turn 41 in [omitted] 2013.
The child [X] was conceived through artificial insemination in 2005 and was born on [omitted] 2005.
The parties commenced an arrangement in 2006, when the child was nine months old, whereby she would spend one night per week at the First Applicant’s house. This increased to two non-consecutive nights in July 2006, when the child was nine months old.
In September 2006 the parties entered into consent orders in the Family Court at Sydney. The First Applicant and the Respondent in this proceeding were named as the Applicants and the Second Respondent was named as the Respondent.
The Consent Order was signed by all three parties and dated 19 September 2006. The Order was made by a Registrar on 29 September 2006 and said:
That Mr Laurita, Ms Morda and Mr Maletta all have joint shared parental responsibility to make decisions in to the long-term care, welfare and development of the child [X], born [omitted], 2005.
In late 2009, the child began spending three nights per week at the home of the Applicants.
This time was increased in January 2011[2] or March 2011[3] so that the child would spend three nights in each household per week plus alternating Saturday nights. The arrangement was, according to the Respondent:
The pattern was to be that [X] spend from Wednesday to Saturday one week and from Wednesday to Sunday in the other week with Mr Laurita.[4]
[2] The Respondent’s account
[3] The First Applicant’s account
[4] Affidavit of Ms Morda 11.10.2012 at paragrap0h [36]
On 8 March 2011 the Respondent completed a passport application for [X] and left it with the First Applicant. The mother has subsequently complained that the signature on the passport application that was submitted is not her signature.[5]
[5] Ibid at [138]
The Respondent commenced a relationship with her current partner.
The Respondent terminates the child’s overnight time with the Applicants in July 2012. The child starting spending time with the Applicants from 10:00 am until 6:00 pm on Saturdays, together with time at school on Tuesdays and Thursdays.
The Applicants commenced proceedings in this Court by filing an Application for parenting orders on 23 August 2012, accompanied by an affidavit sworn by the First Applicant. The Application was returnable on 8 October 2012.
On 8 October the parties were directed to attend a Child Dispute Conference with a Family Consultant, which took place on 18 October 2012. The Family Consultant reported that no agreement was reached. The Respondent stated that she had agreed to various requests for time with [X] due to the intimidation she feels from the Second Applicant.
The Applicants were of the view that [X] was happy when spending time with them and they did not see the child showing the anxiety that the Respondent claims. On the other hand, the Respondent that the child had been developing anxiety for some months and had been telling her that she wanted to spend more time with her.
The Family Consultant suggested that interim orders may be beneficial and a child inclusive Child Dispute Conference may be of assistance.
On 23 October 2012 the parties were directed to attend a Child Inclusive Child Dispute Conference with a Family Consultant. The parties and the child attended the Child Inclusive Conference on 26 November 2012. They saw the same Family Consultant that they had seen before.
Again, no agreement was reached, but the Family Consultant reported that the Applicants and the Respondent agreed that they would consider family counselling.
The Family Consultant reported that there were no family safety factors. In her Memorandum to the Court the Family Consultant noted the issues remaining in dispute as:
· Parental responsibility
· Whether [X] should live in an equal time arrangement
· The time that [X] spends with her fathers
The Family Consultant stated that:
Any increase for [X] to spend time with her father and “[nickname omitted]”[6] should be done very gradually and be part of her normal routine to avoid an increase in her reported anxiety.[7]
[6] “[nickname omitted]” is the name that [X] calls the Second Applicant.
[7] Family Consultant Memorandum to Court 26.11.2012
Evidence and Submissions
There was some spirited discussion between Mr Batey of counsel, who appeared for the Applicants, and Mr Lethbridge of senior counsel, who appeared for the Respondents, about whether evidence should be taken about the mother’s serious allegation that her signature had been forged on the application for the child’s passport. Noting that neither party sought any orders in respect of the child’s passport, I decided that it was not an appropriate topic for argument in an application for interim parenting orders.
If the Respondent wishes to argue that one of the other parties forged her signature on any document, it would be necessary to lead specific evidence from a handwriting expert and the matter should best be left for a final hearing.
The Applicants’ counsel prepared a Case Outline in which it was stated that the Applicants relied on the affidavits of the following persons:
a)the First Applicant dated 21 August 2012;
b)the Second Applicant dated 29 November 2012;
c)the First Applicant dated 29 November 2012;
d)the First Applicant dated 6 December 2012;
e)Ms P dated 23 August 2012;
f)Ms A dated 25 September 2012;
g)Mr S dated 13 September 2012; and
h)Ms H dated 4 October 2012.
I have read all of these affidavits although it is fair to say that the affidavits of the Applicants themselves which are the most informative.
It should be noted that the Court usually permits parties to rely on only one affidavit from each witness, but the Applicants have sought to rely on three affidavits from the First Applicant. The disdain with which practitioners at the Sydney Registry treat the Court’s practice directions and directions for hearing is a constant source of irritation to the Court.
The Respondent’s solicitor has prepared a Case Outline in which she states that the Respondent relies on two affidavits sworn by the Respondent on 11 October and 6 December 2012 (see paragraph [30] above).
I have read these affidavits.
Essentially, the Applicants’ case is that there was a shared parenting regime that was working well until the mother unilaterally terminated it and greatly restricted their time with the child.
The Respondent’s case is that [X] had, over a period of time, been showing more signs of anxiety and expressing a strong wish to spend time with her.
Counsel for the Applicants submitted that the parties had agreed to and implemented shared parental responsibility for [X] since she was 12 months old. The parties jointly shared duties and responsibilities concerning the child’s care, welfare and development (see s.60B(1)(c) of the Family Law Act 1975) until the mother made a unilateral decision to exclude the Applicants from [X]’s day to day care.
Mr Batey submitted that the Court must consider whether the child’s spending equal time with the Applicants and the Respondent would be in the child’s best interests, as required by s.65DAA of the Act. I note that s.65DAA also requires, in both subsections (1) and (2), that the Court must also consider whether such an arrangement would be reasonably practicable.
It was further submitted that the mother had taken no objection to the equal shared parenting practised by the parties until she commenced her new relationship. There was no evidence to demonstrate that this equal shared regime did not operate in the child’s best interests.
The submission goes on that the mother has not led any evidence to support her claim that the previous shared care arrangement was not in her best interests. In particular, there was no affidavit from the mother’s current partner corroborating the mother’s evidence.
Counsel for the Applicants submitted that there was no acceptable reason, other than the one proposed by the Family Consultant for a graduated increase in the time that [X] spends with the Applicants to address any possible anxiety, that [X]’s care by the Applicants should not rapidly return to the earlier shared care arrangement.
Mr Batey referred the Court to a recent English decision by the Court of Appeal, A v B, C[8], which dealt with “important issues relating to the courts’ approach to children born into ‘alternative families’ and the relationship of such children with their fathers”.[9]
[8] [2012] EWCACiv285
[9] [2012] EWCACiv285 per Thorpe LJ at [1], quoting Lady Justice Black
He sought the appointment of a Court Expert under Rule 15.09 to prepare a Report and suggested Mr L. Mr L is well known to the Court as he was a Family Consultant at the Sydney Registry for a number of years.
The Respondent’s Case Outline, prepared by the Respondent’s solicitor, Ms Donnelly, approaches this matter from the point of view that the mother has now considerable misgivings about the benefit to her child of the previous tripartite parenting arrangement that was in force until recently. This theme was developed by senior counsel for the Respondent in his oral submission to the Court.
The Respondent’s case is, in my view, well summed-up in the Case Outline in the comments relating to the additional consideration at paragraph (m) of subsection 60CC(3) of the Family Law Act:
This is a somewhat unusual case where the Applicants seek to attribute parental rights to 3 people. The Mother would concede that her actions have suggested that she has, in the past, acquiesced to such an arrangement. However, it is the Mother’s case that it is not in the child’s best interests for such an arrangement to continue.
As was submitted, [X] commenced spending overnight time away from her mother with the Applicants at a very young age (about 7 months). The Mother’s case is that she was “pushed” into that arrangement. Regardless of how it occurred, it is submitted on behalf of the Mother that the arrangement simply did not work for this young girl and the evidence will show that [X] is showing signs of anxiety.[10]
[10] See Case Outline of the Respondent Mother at page 6
Specific submissions are made about the primary considerations in subsections 60CC(2) and (3) of the Act.
The submission in respect of the primary consideration in paragraph (a) of s.60CC(2), the benefit to the child of having a meaningful relationship with both of the child’s parents, states an important part of the Respondent’s case:
The wording of this subsection, including the use of the word “both”, notes something obvious. That is, a child has 2 parents. Certainly there are other persons significant in a child’s life. However, it is submitted that for this child, to date the parties acting as if she has had “3 parents” may well have caused her some confusion and distress.
In circumstances where this child is observed to be exhibiting signs of anxiety the Court should be hesitant to change the arrangement that is currently in place.[11]
[11] Ibid page 7
A concern is raised about this paragraph in the Family Consultant Memorandum of 26 November 2012:
· [X] said, however, that her “Dad and [nickname omitted] ask me questions about the Court and what I will say and it makes me don’t want to go” {to spend time with Mr Laurita and Mr Maletta]. [X] said, “If they didn’t ask me questions, maybe I would want to go more”. She said that she does not want to spend overnights with them now but said that she does not really know why she stopped wanting to go.
· [X] said that she wants to live with her mother[12]
[12] Family Consultant Memorandum to Court 26.11.2012 at page 2
It is submitted that this paragraph is relevant to:
a)the primary consideration in s.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, in that it shows a lack of insight by the Applicants in questioning the child which could cause her psychological harm;
b)the additional consideration in s.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, in that the child appears to be an articulate, mature 7 year old whose vies should be accorded some weight; and
c)the additional consideration in s.60CC(3)(g), the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and or either of the child’s parents, and any other characteristics of the child that the court thinks are relevant, in that this little girl is clearly articulate and mature.
Mr Lethbridge of senior counsel, who appeared for the Respondent, submitted that the use of the word “parent” in s.65C(a) and subsection 65DAA(1) of the Act refers to the ordinary meaning of the word. A third party applicant is an applicant relevant only where one of the parents is disabled.
The wording of subsection 61DA(1), dealing with the presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child, excludes non-parents.
The original arrangement had little to do with the needs of the child; it was an adult-focused arrangement. As an interim measure, the Court should not reintroduce equal shared parental responsibility as a triumvirate.
As to the orders proposed by the Respondent, Mr Lethbridge said that she wished to take the child to Melbourne to see her family for two weeks. The Respondent sought an order to cover that situation.
It was also submitted that the proposed date in March for the recommencement of alternate weekends with the Applicants, that date was arbitrary and the commencement time could be sooner or later.
The Relevant Law to be applied when making Parenting Orders
It is well know that in deciding whether to make a particular parenting order, the Court is required by s.60CA of the Family Law Act to regard the best interests of the child as the paramount consideration.
The Court determines what is in a child’s best interests by considering the matters set out in subsections (2) and (3) of s.60CC, giving greater weight to the consideration set out in paragraph (2)(b) than the consideration in paragraph (2)(a).
Suffice it to say that all of the matters in the above sections have been considered, and some of the more relevant matters will be specifically discussed below.
The Court is also required to consider the presumption of equal shared parental responsibility referred to in s.61DA of the Act. This, too, has been considered, and the particular matters of relevance will also be discussed below.
Again, when a parenting order provides, or is to provide, that a child’s parents are to have equal shared parental responsibility for the child, the Court is required by subsections (1) and (2) of s.65DAA to consider whether it is in the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents or, if the Court does not make an order to that effect, whether it is in the child’s best interests and reasonably practicable for the child to spend substantial and significant time with each of the parents.
This, too, has been considered as it has its own particular features in this case.
Consideration
This is an interim hearing where the parties are seeking interim orders, orders until further order (s. 64B(1)). As was stated by the Full Court of the Family Court in Goode v Goode[13] at [68]:
…the procedure for making interim parenting orders will continue to be an abridged process, where the scope of the enquiry is “significantly curtailed”. Where the court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.[14]
[13] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
[14] (2006) 36 Fam LR 422 at 442 [68]
The Court cannot make findings of fact on matters that are in dispute between the parties where the evidence is set out in affidavits or other documents which are untested by cross-examination. The advantage of cross-examination, of course, is that the Court can hear the parties give oral evidence and observe their demeanour in the witness box. This is particularly important where the Court is required to make a finding about a witness’s credibility, which is the function of the trial judge par excellence (Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham[15] per McHugh J at [67]).
[15] [2000] HCA 1; (2000) 168 ALR 407
An example of this limitation on the Court’s ability to make a conclusive finding of fact is found in the claim that one or other of the Applicants has been questioning the child about these proceedings and what she should say to the Family Consultant.
The Family Consultant describes the child as making a complaint that both Applicants have asked her questions about this issue, which has made her so uncomfortable that she has been reluctant to go to their home.[16]
[16] Family Consultant Memorandum to Court 26.11.2012
The Respondent makes reference to statements made by the child to her at paragraphs [4] to [8] and [10] of her affidavit of 6 December 2012.
The First Applicant specifically denies this allegation in paragraphs [1] to [3] of his affidavit of the same date.
The Court cannot make a finding of fact one way or the other. All that can be done is to restrain the parties by injunction not to discuss these proceedings with the child or in her presence or hearing or to show her any court documents.
The evidence here is that the parties entered into an arrangement where this child should have “three parents and two homes”, to quote Thorpe LJ in A v B,C[17] at [37]. It was always the case that the Applicants were in a relationship together.
[17] supra
The Respondent was in a relationship with another woman, but that relationship broke up shortly after [X] was born.[18] This woman apparently never played any significant role in the child’s life. The Respondent formed another relationship with a woman in June 2011 and this relationship is continuing.
[18] Affidavit of Ms Morda 11.10.2012 at [148]
The parties had a shared care arrangement where the time spent by the child with the Applicants increased until the child was spending equal time with the Applicants and the Respondent. It was the case that the child was brought up with the idea that she has a mother and two fathers. This arrangement was given written expression by the Consent Orders into which the three parties entered on 19 June 2006, when [X] was less than a year old.
The Respondent has resiled from this arrangement, as she believes that it is no longer in the child’s best interests. She states that she felt that she was pushed into this shared care arrangement by the Applicants.
The orders sought by the Respondent in her Minute of Order are reflective of what appears to be the Respondent’s current view. First, they envisage a situation where the Respondent will be the child’s primary caregiver.
Second, the Respondent’s proposed orders only seek to recognise the First Applicant, [X]’s biological father. The Respondent does not propose any parenting order in favour of the Second Respondent (see subsection 64B(6)).
The Respondent’s submissions differentiate between the two Applicants and raise the question “Who are the child’s parents?”.
There is no doubt that, under s.64C, a parenting order in relation to a child may be made in favour of a parent of the child or some other person.
However, senior counsel for the Respondent submits that s.65C, which sets out who may apply for a parenting order, only applies to someone in the position of the Second Applicant if a biological parent is disabled in some way.
Section 65C provides:
A parenting order in relation to a child may be applied for by:
(a) either or both of the child’s parents; or
(b) the child; or
(ba) a grandparent of the child; or
(c) any other person concerned with the care, welfare or development of the child.
In my view, the meaning of the section is clear. There is no descending hierarchy of applicants. Section 65C provides that parents, the child, or the child’s grandparents can apply for a parenting order as of right.
The only qualification placed on another person under s.65C(c) is that the other person must show that he or she is concerned with the care, welfare or development of the child.
I had occasion to consider this question in the recent decision of Tran & Ngo[19], which was an application by a paternal aunt for parenting orders where the father was deceased and the mother had left Australia. In the course of that decision, at [29]-[31] I briefly reviewed the authorities before finding that the aunt had standing to apply for a parenting order as she met the threshold test in s.65C(c)).
[19] [2012] FMCAfam 1352
The description of a “threshold test” in s.65C(c) was used by Burr J in KAM v MJR[20] at 667:
5.1.3 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…
5.1.5 The specific wording of s. 65C(c) appears to require demonstration of a concern with only one of the issues of care welfare or development.
[20] [1998] FamCA 1896; (1998) 24 Fam LR 656; (1999) FLC 92-847
In Re J and M: Residence Application[21], Walters FM[22] dealt with a case where an application was made for a parenting order by the biological mother and her partner in a same sex relationship. The children were born by an IVF procedure by an anonymous sperm donor. His Honour found that both applicants could apply for a parenting order. They were both involved in all aspects of the care of the children and they considered themselves the joint parents of the children. His Honour held at [21]:
Ms F is a parent of the twins, and there can be no doubt that Ms B is a person concerned with their care, welfare or development.[23]
[21] [2004] FMCAfam 656; (2005) 32 Fam LR 668
[22] As his Honour then was
[23] (2005) 32 Fam LR 668 at 671 [21]
Walters FM made orders that the applicants have “joint responsibility for the long term and day to day care, welfare and development of the children” and that the children should live with the applicants.
In R & M[24] Driver FM dismissed an application by a friend of the recently-deceased father of the child concerned, finding that the applicant had had no prior involvement with the care, welfare or development of the child and therefore had no standing to bring the application.
[24] [2002] FMCAfam 279
In the case under consideration, the First Applicant is the child’s biological father. There is evidence that the Second Applicant has been involved with [X]’s care, welfare and development since she was a baby. Both Applicants therefore have standing to apply for parenting orders, the First Applicant under s.65C(a) and the Second Applicant under s.65C(c).
It is clear that a parenting order may be made in favour of the Second Applicant, the next question which follows from the Respondent’s submissions is whether a parenting order should be made in favour of the Second Applicant. In my view, the evidence supports the contention that the two Applicants have been jointly involved in all aspects of the child’s life since she was a baby. It is hardly appropriate in these circumstances to make interim parenting orders specifically excluding the Second Applicant without evidence that would satisfy the Court that it would not be in the child’s best interests for the Second Applicant to be included in parenting orders in favour of the First Applicant. That is a question for consideration at a final hearing once evidence has been taken and the Court has had the benefit of a report from the Court Expert.
Senior Counsel for the Respondent has urged the Court not to make an order providing for the two Applicants and the Respondent to have equal shared parental responsibility for [X]. It is argued that subsection 61DA(1) refers to the presumption “that it is in the best interests of the child for the child’s parents[25] to have equal shared parental responsibility for the child”.
[25] Emphasis added
Clearly, the Second Applicant is not the child’s biological parent. However, in my view he has standing to apply for an order for parental responsibility, even if it were not the case that there is already an order in existence made by the Family Court in 2006.
Section 64 of the Act provides relevantly in subsection (2):
64B(2) A parenting order may deal with one or more of the following:
(a) the person or persons with whom a child is to live;
(b) the time a child is to spend with another person or persons;
(c) the allocation of parental responsibility for the child;
(d) if 2 or more persons are to share parental responsibility for a child – the form of consultation those persons are to have with one another about decisions to be made in the exercise of that responsibility…
Subsection 61DA(3) provides that the presumption applies when the Court is making an interim order unless the Court is satisfied that it would not be appropriate in the circumstances.
Here, there is already an order for the three parties to have “joint shared parental responsibility to make decisions in to the long-term care, welfare and development of the child…” . It does not matter that in the Family Court proceedings the Applicants were the First Applicant and the Respondent in this matter and the Respondent was the Second Applicant.
The order is a final order for equal shared parental responsibility. The Respondent may now regret entering into such a consent order, but the fact is that she did. As there is a final order already in force providing that the parties should have equal shared parental responsibility for the child, I do not propose to make any other order for parental responsibility as part of these interim orders. I am not satisfied that it would not be appropriate in the circumstances for the presumption to be applied when making these interim orders.
Parental responsibility is clearly a matter for the final hearing.
However, I am not satisfied, in the light of the Respondent’s claims about [X]’s anxiety and her wish to spend more time with her mother, along with the recommendation of the Family Consultant that any increase in the time that the child spends with the Applicants should be done very gradually, that it is in the child’s best interests to make an order for the child to spend equal time with the Applicants and the Respondents.
In light of the fact that the Applicants are saying that the previous arrangement was working well and it is only the actions of the Respondent that have caused the problem, whilst the Respondent says that it has become clear that the child is expressing a strong wish to spend more time with her, I am not satisfied that the child spending equal time with the Respondent and the Applicant is reasonably practicable.
For the same reasons I am not satisfied that substantial and significant time with the Applicants is in the child’s best interests at this time or reasonably practicable.
The parties’ current capacity to implement an arrangement for the child to spend time with the Applicants and their current capacity to communicate with each other and resolve difficulties that might arise does not appear to be sufficient for the Court to be satisfied that equal time or substantial and significant time are reasonably practicable at present.
The evidence, especially the Family Consultant memorandum, suggests that the impact of a return to the previous equal time arrangement at this time may be detrimental to the child, as would a substantially increased amount of time with the Applicants.
That said, the Family Consultant observed that [X] appeared comfortable with both Applicants and enjoyed playing games with them:
While slightly reserved initially, within minutes was playing happily and chatting to them both. She did not appear to exhibit any anxiety when with either her father of “[nickname omitted]”.[26]
[26] Family Consultant Memorandum to Court 26.11.2012
In my view, the Court should take a fairly conservative view until the Court Expert is able to provide the Court with a Report. It would be in the child’s best interests that she should be able to go to Melbourne with her mother for a couple of weeks, as she will be removed form the animosity between the Applicants and the Respondent noted by the Family Consultant.
I consider that it is in the child’s best interests to make interim orders that will see her spending two consecutive full days with the Applicants each week during the school holidays and that alternate weekends, staying overnight on the Saturday night, can commence at the beginning of the school year in 2013, rather then the admittedly arbitrary date at the beginning of March proposed by the Respondent.
The matter can be considered again in March.
I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 10 January 2013