Legh and Rinalds (No 2)

[2020] FamCA 148

FAMILY COURT OF AUSTRALIA

LEGH & RINALDS (NO. 2) [2020] FamCA 148

FAMILY LAW – CHILDREN – Parental responsibility – best interests of the child – sole parental responsibility for non-parent by consent – time with parent by consent .

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Ms Legh

RESPONDENT: Ms Rinalds

INDEPENDENT CHILDREN’S LAWYER: Ms Orczykowski

FILE NUMBER: CAC 348 of 2019

DATE DELIVERED: 10 March 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 10 March 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Jeanine Lloyd & Associates

SOLICITOR FOR THE RESPONDENT: Self-representing

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Boland Legal Family Lawyers

Orders

1. It is ordered that Ms Legh have sole parental responsibility for X, born … 2017.

2. X live with Ms Legh.

3. X spend time with Ms Rinalds as agreed between Ms Rinalds and Ms Legh.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Legh & Rinalds has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 348 of 2019

Ms Legh

Applicant

And

Ms Rinalds

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is an application made by Ms Legh who has had care of the child X for the whole of his life.  There is an Application that is consented to by X's mother, there is no appearance by X's father and service of him has been dispensed with.  Ms Legh seeks sole parental responsibility and also that X lives with her and that time with X's mother be by agreement between herself and X's mother.  As I have noted, X's mother agrees that these orders should be made.

2. The circumstances of X coming into Ms Legh’s care are set out in her affidavit but they incorporate an agreement between X's mother and Ms Legh before X was born and they also occur in the context of some supervision of that taking place by Care and Protection.  It may be observed that there was a lot of involvement by Ms Legh with Ms Rinalds during Ms Rinalds's pregnancy.

3. The circumstances for where X is living include X having a relationship not only with Ms Legh but also with her husband, Mr H.  They have somewhat unusual circumstances in that they live in separate residences.  Ms Legh explains that this is because of Mr H's mental health issues and that the arrangement of the separate residences has been put in place between the parties in recognition of those issues.  The family report writer noted that this arrangement was a practical solution to their management of Mr H's health issue.  While there was some notion that Mr H had been financially abusive of Ms Legh in the past, that is certainly not clear.  What was clear was that since Mr H has had a change in his medication there have been improvements in his functioning including his functioning in looking after X.  It was acknowledged that when he is mentally unwell he can become withdrawn, not shower and sleep a lot and the family report writer noted that this may lead to his parenting of X being unpredictable.  But on the arrangement where they live in separate residences, the primary parenting of X would be by Ms Legh, who is the one applying for the orders rather than Mr H.  As I noted, since Mr H's change in medication, because it appears that he is compliant with treatment, he has become more supportive in the care of X.  The report prepared by the Family Consultant in this matter in August 2019 noted that there are no family violence or abuse issues or child safety issues and there are no alcohol or drug issues in the Legh households although Mr H, it is noted, suffers from depression and anxiety.  The family report also noted that X has siblings through his mother, but does not yet have a relationship with those people. 

4. Ms Legh’s current circumstances are that although she remains married to Mr H she lives with her mother, Ms K.  It was noted by the Family Consultant that she is currently on waiting list for ACT housing, but Ms K's involvement can be described as highly supportive in Ms Legh's parenting of X.  Ms Legh has also arranged for X to attend childcare each Tuesday or Wednesday which increases his socialisation, along with swimming lessons and a playgroup. 

5. The Family Consultant was able to observe X with both Ms and Mr H.  She observed that X is robust, happy and healthy, that he is meeting his developmental milestones and that his language is well advanced.  He seemed settled, confidently explored his environment and had a good comprehension of his social surroundings.  She made positive observations of Ms Legh's interaction with X and her capacity and observed positive bonds between X and Ms and Mr H.  He is healthy, he is flourishing and he had a high acceptance of both Ms and Mr H as parental figures.  She noted that change to this arrangement would bring grief and loss through the separation with negative repercussions for his well-being. 

6. In considering whether to make the orders that have been put forward by Ms Legh and Ms Rinalds, I am to consider what are in X's best interests and I am to work that out in accordance with s 60CC of the Family Law Act 1975 (Cth). X's best interests are the paramount consideration. Not all of the considerations set out at s 60CC are important in these proceedings. When I look at the primary considerations, that is the question of the benefits of meaningful relationship that may come to X from his parents. At present, there are no benefits or very limited benefits available from those relationships. That may be seen from the fact that there is no contact at all with his father and that cooperatively between Ms Rinalds and Ms Legh, Ms Legh has functioned for the whole of X's life as his parent while Ms Rinalds has taken a step backwards to allow that to happen. At present, there is no indication of X being at any risk of harm by exposure to family violence or neglect or abuse.

7. There is some indication from the welfare authorities who attended on the last occasion that if X is not placed with the Leghs or remain with the Leghs then they will potentially intervene in the arrangements for him which may cause him to go into foster care, which is something that Ms Rinalds has been most keen to avoid. 

8. If these orders are not made, then X faces the risk of a change of circumstances, the effects of which I have set out above, that would cause X some great instability in his life and a change in his care arrangements to a place that cannot as yet be identified.  He would be likely to suffer grief and loss and a displacement of the relationships with the people who he considers to be his parents.

9. Because X is only two years old, his views are not matters that can be taken into account by the Court.  The nature of the relationship he has with Ms Legh and Ms Legh's capacity to care for him are matters to be taken into account.  Ms Legh has demonstrated a positive capacity to care for him.  She clearly loves him, she clearly functions as his mother and within her care it can be seen that X is flourishing. 

10. I am to look at his characteristics including that he is a young child and he is completely reliant on Ms Legh as his parent. Those matters, amongst the s 60CC considerations, are the dominant ones in what is an unusual case being a case in which Ms Rinalds and Ms Legh agreed on arrangements that Ms Legh would care for X as his mother before his birth. The circumstances call for the orders to be made as sought.

11. While there was some concern expressed for how X might come to know of his family of origin, it also seems clear that the Leghs are considering this at this early stage and I have been advised by the solicitor for Ms Legh that she is undertaking appropriate training in relation to parenting for X, which will hopefully help her in this matter. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 10 March 2020.

Associate:

Date:  11 March 2020