Lopesi and Anor

[2014] FamCA 1229

FAMILY COURT OF AUSTRALIA

LOPESI AND ANOR [2014] FamCA 1229

FAMILY LAW – PARENTING

1st APPLICANT: Ms Lopesi

2nd APPLICANT: Mr Lopesi

FILE NUMBER: CAC 1707 of 2014

DATE DELIVERED: 10 December 2014

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 10 December 2014

REPRESENTATION

SOLICITOR FOR THE 1ST APPLICANT: Mr Kikkert

SOLICTOR FOR THE 2ND APPLICANT: Mr Kikkert

Orders

It is ordered that:

1. Ms Lopesi and Mr Lopesi have equal shared responsibility for:

   (a)       B, born … 1997

   (b)       C, born … 1999

   (c)       D, born … 2000

   (d)       E, born … 2002

   (e)       F, born … 2005; and

   (f)       G, born … 2009

2. The children will live with the applicants.

IT IS NOTED THAT:

1. In this regard that I have considered the possible application of the Immigration (Guardianship of Children) Act 1946 (Cth) and that I am satisfied in the circumstances that that Act does not apply to these children.

2. I am satisfied that there are no apparent other people who might have any claim in relation to the children and the effect of my making this order would be to ensure that the applicants have all the authority that they might reasonably need to properly care for the welfare and development of the six children under the age of eighteen years. 

3. I further note that the elder children over the age of eighteen years are separately applying for appropriate visas to remain in Australia and to be involved with the family.

IT IS FURTHER ORDERED THAT:

1. The matter is removed from the pending cases list. 

IT IS NTED that publication of this judgment by this Court under the pseudonym Lopesi and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1707 of 2014

Ms Lopesi

First Applicant

And

Mr Lopesi

Second Applicant

REASONS FOR JUDGMENT

1. In this matter the proceedings were begun by an application filed on 5 December 2014.  The application seeks that the applicant, Mr and Mrs Lopesi, have “equal shared parental responsibility” of B (B), born in 1997, C (C), born in 1999, D (D), born in 2000, E (E), born in 2002, F (F), born in 2005 and G (G), born in 2009.

2. The second order sought is that each of the children live with the applicants.  There is no respondent in these proceedings because, sadly, the children’s parents have both died.  The circumstances surrounding what happened to the children and their mother and father are set out adequately in the affidavits filed in support of this application.  In short, the applicants, together with their four children, live in Sydney and are Australian citizens. 

3. Both of the applicants are Australian citizens and live in Suburb H in New South Wales with their four children.  The sad circumstances surrounding the background to this matter are that the female applicant’s eldest brother who lived in Country I with his wife and ten children died as a result of a heart condition and the female applicant flew to Country I to help in the care of the children at that time. 

4. The children’s father died on 29 January 2010 and the ten children then lived with their mother in Country I.  The youngest of the ten children was then four months old and the eldest, 19.  If the tragedies involved were not enough, in September 2012 the children’s mother was diagnosed with breast cancer and underwent a mastectomy in Country I and then came to Australia to undergo chemotherapy treatment.  The treatment was, in effect, sponsored by the Country I Government with the cooperation of the Australian Government.

5. When the mother arrived in Australia she lived with the applicants and their family in Suburb H and underwent treatment here in Australian.  Again, unbelievably sadly, at the end of some months of treatment the children’s mother was told that there was little that could be done, that she would die.  She could not return to Country I because of her ill health and in those circumstances the current applicants applied to bring all ten children to Australia to be with their mother.  The children were sponsored by the applicants.  And the children all lived with the applicants in Suburb H - fourteen children in total. 

6. Subsequently, the mother died and before she died asked the present applicants to look after the children.  The original affidavit of the applicant – concludes:

   We are now in the process of applying for the children’s Australian residency and have been told by the Department of Immigration that my husband and I need a guardianship order so that it is confirmed that we are the guardians for the children and have been since their arrival in Australia.

7. The orders currently being sought are not guardianship orders, because this Court does not make those sorts of orders, but does seek that the applicants have equal shared parental responsibility for the children. 

8. It seems to me that it is appropriate that such an order should be made in the best interests of the children.  In this regard I note that although the applicants have not been to counselling or been involved in any formal process of communication with all of the relatives of the children I am satisfied that it is the intention of those relatives that the children should live with the applicants.  In particular, I note the affidavit filed on 10 December 2014 from Ms J who informs the Court that she, in some ways, represents the interests of the children in Country I and is happy with the arrangements that are proposed - namely that the children live permanently in Australia.

9. The matters I am to take into account in determining whether or not it would be in the children’s best interests are set out in s 60CC of the Family Law Act.  And I briefly mention which of them I take into account.

10. These are, while it may have been a benefit to the children to have a meaningful relationship with both of their parents this is no longer possible as they are dead.  There is no evidence before me which would lead me to conclude otherwise.  Second that the children would be protected from physical or psychological harm if they were living with the applicants.

11. I take account of the additional considerations.  I note that I have no indication of the views of the children but I accept that they are not opposed to the arrangement.  I note the nature of the relationship of the children with the applicants.  And noting, particularly, that while the relationship is in one respect new, the applicants are people of considerable charity and love and they have taken on the role of parents in relation to these children in a totally exemplary way.  I have no doubt that they will develop and maintain an appropriate relationship with the children. 

12. I am happy, also, from the affidavits that are filed that proper arrangements will be made to enable the children to enjoy their Country I heritage, to be accepted into the culture of Australia, both in a broader sense, and also, in particular, in relation to the Country I community.  The applicants in this case have made every effort to look after the children, some at great personal expense.  I am satisfied that they have carried out the obligations that a parent would ordinarily have to carry out under the terms of the Act.

13. I note the Act makes certain specific references to “parents” of the children the subject of the order and I note that, to that extent, it is feasible that the current applicants would be excluded from consideration under those sections. However, s 60CC(2)(m) requires me to take into account “any other factor or circumstance that the Court thinks is relevant”.  The matters that are reserved for parents in s 60CC are matters which are relevant to the applicants in this case - in the circumstances of this case.

14. I am satisfied that the current applicants demonstrate an importantly positive attitude to the children and to the responsibilities of parenthood. 

15. I am satisfied that there is no evidence before me that there is any family violence or any family violence order which may in any way impinge upon the decision that is to be made.  I am satisfied that by making this decision it will operate to give the children the best chance of recovering from the duel tragedy that they have suffered as a result of the loss of their parents. 

ORDERS DELIVERED

1. It is noted in this regard that I have considered the possible application of the Immigration (Guardianship of Children) Act 1946 of the Commonwealth and that I am satisfied in the circumstances that that Act does not apply to these children.

2. I am satisfied that there are apparently no other people who might have any claim in relation to the children and the effect of my making this order would be to ensure that the applicants have all the authority that they might reasonably need to properly care for the welfare and development of the six children.  Six children under the age of 18 years.  I further note that the elder children over the age of 18 years are separately applying for appropriate visas to remain in Australia and to be involved with the family. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 10 December 2014.

Associate: 

Date:  28 April 2015