Lynes & Horne

[2024] FedCFamC1F 141

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Lynes & Horne [2024] FedCFamC1F 141

File number:	CAC 126 of 2024
Judgment of:	BRASCH J
Date of judgment:	5 March 2024
Catchwords:	FAMILY LAW – CRITICAL INCIDENT LIST – Where both of the children’s parents have passed away – Children living with long-term family friends – Where major long-term decisions were required on an urgent basis – Where interim order were made – Where wider family members support final orders – Where the Department held no concerns about the children living with the applicants – Final orders made.
Legislation:	Family Law Act 1975 (Cth) Pt VII, s 60CC
Division:	Division 1 First Instance
Number of paragraphs:	43
Date of hearing:	5 March 2024
Place:	Sydney
Solicitor for the Applicants:	Alliance Family Law

ORDERS

CAC 126 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS LYNES

First Applicant

MR HORNE

Second Applicant

ORDER MADE BY:	BRASCH J
DATE OF ORDER:	5 MARCH 2024

ON A FINAL BASIS, THE COURT ORDERS:

1.That the children X born 2009 and Y born 2014 live with the applicants Ms Lynes and Mr Horne.

2.That parental responsibility be allocated to the applicants, for all major long term decision related to the children, including:

(a)The children’s education (both current and future);

(b)The children’s religious and cultural upbringing;

(c)The children’s health;

(d)Requesting that Medicare issue a card/s for the children and claiming Medicare benefits for the children;

(e)Dealing with the Department of Foreign Affairs and Trade, Passport offices or Visa providers; and

(f)Requesting a copy of the children’s birth certificate; and

(g)Dealing with NDIS and making any applications required.

3.That the applicants have responsibility for all day-to-day decisions with respect to the children.

4.That pursuant to s 121 of the Family Law Act 1975, the applicants be granted leave to publish a copy of these Orders to all service providers for the children, including but not limited to the children’s school, treating medical practitioners, any other doctors, therapists, counsellors, government departments, health insurer, passport and visa providers, or, for securing any financial support for the children.

5.That these Orders are authority for the applicants to schedule and consent to treatment, therapy, schooling, programs, services and the like for the children, and to give and receive such information from service providers as a parent would ordinarily receive.

THE COURT NOTES:

A.That pursuant to s 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in “Parenting Orders – obligations, consequences and who can help” and these particulars are included in these Orders.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

EX TEMPORE REASONS FOR JUDGMENT

BRASCH J:

1. These are my ex tempore reasons.  I have corrected the transcript for grammatical errors and to make the spoken word more amenable to reading.

2. This application concerns two children, X, born 2009, who will soon be 15 years, and Y, born 2014, who will soon be 10 (“the children”).  The parents of the children are Ms B born 1985, and the children’s father, Mr C, born 1983.  Tragically, in late 2023, both Ms B and Mr C suddenly passed away in an accident.  The children, X and Y, have been living in the applicants’ care since that date. 

3. As occurs in matters that come into the Critical Incident List, I invited relevant co-located officers, in this case Region P and New South Wales, to provide any information they could about the children and the applicants.  In short, the two relevant entities and co-located officers have no issues or difficulties with the arrangements, being, the children living with the two applicants, Ms Lynes and Mr Horne.  I had an updated report from the co‑located officer more recently and as I indicated to Ms Begg, there was nothing to update.  The relevant entities remain content for the children to be placed with the applicants. 

   BACKGROUND

4. The first applicant, Ms Lynes, was born in 1982, and her husband, Mr Horne, was born in 1983.  They have been together since 2013 and married in 2017.  There are no respondents to this application, and I will further address the issue of other potential parties a little later in these reasons. 

5. I am told the applicant, Ms Lynes, and the mother, Ms B, have been best friends since 2012.  I do not doubt that, and I am fortified in accepting that by receiving some information from the co-located officers.  Part of the reason they were content for the children to be placed with the applicants was the close relationship between the applicants and the now deceased parents.  Ms Lynes says that she and the mother spoke almost every day through social media, the phone or both.  They were involved in the ins-and-outs of each other’s daily lives.  Ms Lynes says she has known Mr C, the father, since 2012. 

6. Mr Horne, the second applicant, met the parents through Ms Lynes in 2013.  I am told by both applicants that they – the applicants and the parents – were in regular contact about daily life, the children, their respective children and spent a lot of time with each other.  This to me is a very relevant matter because the sibship of the applicants’ [children] ought be, I consider more likely than not, of considerable support to X and Y in what can only be described as a tragic time for them. 

   Care of the children

7. As said, the children came into the applicants’ care in late 2023, which was the day of Ms B and Mr C’s car accident.  Ms Lynes deposes that she received a call from Ms D, being a child of the mother’s from an earlier relationship, that Ms B and Mr C had been in a car accident and the police were on their way to talk to her.  The applicants, as a demonstration of the closeness of their relationship, decided to immediately drive to City E to be with the family.  A short time later, Ms D called Ms Lynes again to tell her that Ms B and Mr C had died.  She [Ms D] asked the applicants, to come straight away. 

8. When the applicants arrived at Ms B and Mr C’s home, they immediately started taking care of Y and X; they have been in their care ever since.  Understandably, the boys were devastated but appeared somewhat comforted that the applicants effectively took over their care.  In a mark of incredible child insight in the circumstances, the applicants stayed at Ms B and Mr C’s home for about two to three weeks to limit the number of changes that Y and X had to go through all at once.  After that, they brought the boys to their house for a week before returning to City E for their parents’ funeral.  After the funeral, in early 2024, the boys [again] came to their house and have been there ever since. 

   Litigation process

9. The matter first came before me on the Critical Incident List on 2 February 2024.  I made orders then for various members of the children’s wider family to be provided with a copy of all of the initiating documents.  That included Mr F, Ms G, Ms H, Ms J and the Executor or Testatrix of the late parents’ estate.  I received an affidavit filed yesterday from Ms Lynes setting out the letters that went to all of those people and in some regards, the responses.  I have before me in that affidavit a reply from Mr F.  He says this: 

   Thank you Ashlea [the applicants’ solicitor]. 

   I have read and understood all the documents and their intent. 

   I believe that [Ms Lynes] and [Mr Horne] [the applicants] are the best people able to provide what both of these boys need and couldn’t have asked for a better outcome. 

   I hope all goes well for them and the boys at the hearing. 

   Kindest regards. 

   [Mr F]

   (Affidavit of Ms Lynes filed 4 March 2024, p.27)

10. There is also attached to the affidavit, a response from Ms G, which says: 

    Received, thank you. 

    (Affidavit of Ms Lynes filed 4 March 2024, p.30)

11. I also observe in the documents that have come from the Department’s co-located officers that there was some suggestion a sister might take the children.  I do not need to detail what is in those documents, but ultimately, people’s grief might have been playing a part in their thoughts about the children.  But it is clear from those documents that it was ultimately determined that the applicants were the best to be caring for the children.  I am satisfied steps have been taken to include the children’s wider family [in this application].  I am also satisfied to see that the children have continued to have contact with the two people I have just mentioned. 

12. In particular, I am told by Ms Lynes that she has a close relationship with Mr F and since Ms B and Mr C died, he has thanked them for everything they have done.  I am told he said, “I couldn’t be happier with them being in your care”.  I accept that because it is entirely consistent with his email.  I am also told, and have no reason to dispute, that Ms G and Ms Lynes are in regular contact and she has told her on numerous occasions, “I am not the best option for [Y] with everything [Y] needs.  You and [Mr Horne] have the knowledge, training and love and the time to support them with the loss and trauma of losing their parents, but especially [Y]with his special needs”.  None of the family members have ultimately expressed any opposition to the children living with the applicants, having noted that a sister was indicating she might take the children after the funeral, but nothing eventuated from that. 

    The children

13. Y is described, and as seen in co-located Departmental documents, to have very high needs.  I am impressed by the steps the applicants have taken to inform themselves of those needs, some of which would have been apparent in their friendship with the mother and father. They [the applicants] have taken steps to engage with the doctors who treat Y and to examine medical records where they can.  Indeed, I was satisfied that the matter come within the Critical Incident List, on 2 February, because of Y’s many needs and the need to have those matters dealt with urgently. 

14. Last year, Y was in year three at K School.  That, however, is three hours away from the applicants’ [home].  The interim orders made in February permitted alternate arrangements to be made for both boys’ schooling. In Y’s case, he is now enrolled in L School.  As said, I am impressed with the applicants’ sourcing of educational and medical records to understand Y’s needs and, in addition, to understand (where they could) the parents’ views on issues, for example, Y starting on certain medications. 

15. X does not have any medical issues.  Unsurprisingly, the applicants deposed that X, like Y, will need counselling to process what has happened.  X enters year 10 this year.  Again, I am impressed with the steps the applicants have taken to inform themselves about X’s progress at M School and with X’s teacher, Mr N.  They have facilitated X finishing year 10 by distance education through his school. 

16. I now turn to the applicants.  I am well satisfied that the children living with the applicants is in the children’s best interests.  Both applicants have demonstrated, in my view, care and attention and empathy for the children, notwithstanding what must be their own grief.  Both applicants have additional qualifications which means they will have considerable insight into the plight of these children.  For example, Ms Lynes has a qualification in a child-related field.  She is employed as an allied health worker for children.  Mr Horne is also an allied health worker and works with children with disabilities.  That will be invaluable for his work with Y.  He deposed to having trauma informed training and that will be a critical skill to have going forward.  He understands Y’s triggers and how his disability presents.  I have no doubt Ms Lynes has that insight as well. 

17. I am satisfied that the applicants will make whatever arrangements are needed to promote the welfare of these two boys and to take all steps necessary to act in their best interests.  I am also satisfied that the relationship these two children must have developed with the [applicants’ children’s] sibship, if I can call it that, is one that will offer Y [and X] comfort and support. 

18. I turn now to Y and X living with the applicants.  Both applicants question or wonder whether Y, due to his intellectual disability, has a grasp of the full impact of what has happened to him.  But I consider that Y is truly well placed with the applicants, who are not only obviously alert to that but, in my view, have the skills to assist him whether through their own skills, their own ability to parent, and through organising required professional assistance. 

19. Understandably, I am told by both applicants, too, that X has been slowly adjusting to what has happened to him and has been growing a closer relationship with Mr Horne.  Again, considerable insight was shown by the applicants in deposing that X’s adjustment may well be hard.  It may be harder than Y’s because X was described as, “really best friends” with his parents, and “they did everything together”.  In telling me that, the applicants also tell me they are alert to X’s need for emotional support. 

20. Y, it is pleasing to see, has gained some weight, which the doctors are happy about since living with the applicants; close to a kilogram.  Prior to that, he struggled to gain weight and it was a concern for his doctors. 

21. Y and X will also have the benefit in these awful circumstances to be joining the applicants on a large block of land with a large sibship.  All children will have access to a lot of space, which is what they are used to. 

22. By way of update, I am told in a more recent affidavit that since I made interim orders the applicants have been able to secure new Medicare and health care cards for the children.  Y has started school at L School and is being supported by the counsellor and learning support officers in the room.  Y has engaged with a paediatrician in the City Q area and the medical records are being moved to their [the applicants’] family GP.  Again, another demonstration of insight.  Y has enrolled to play sport with the local team and is making new friends. 

23. X is commencing vocational studies in March and will be completing his year 10.  He would like to move to an apprenticeship in a mechanical field.  That indicates to me that both applicants have been able to engage with X, notwithstanding his grief and the loss of his parents, to understand what he wants to do.  The same can be said of Y, albeit Y has certain other challenges.  I am told X has made friendships through one of the applicants’ daughters and enjoys the activities City Q has to offer.  Both boys have appointments this week for the dentist and eye tests.  They have, and I am pleased to see, regular calls with their aunty Ms G and daily speak to their older sister. 

24. They have returned to City E on two occasions, and I gather that is two occasions since the funeral to visit their parents’ resting place, and to see friends and family.  I have no doubt that when the applicants tell me that is something they wish to continue on a regular basis that they will, in fact, do that.  Plainly, the applicants understand the importance to the boys of having that physical manifestation of – whether it is through grief - seeing their parents.  It is clearly something the applicants understand.  It is also pleasing to see, and child-focussed, that the applicants are seeking support from a counselling service in the coming week as X is starting to become more accepting of seeing a counsellor. 

    Best interests

25. Part VII of the Family Law Act 1975 (Cth) (“the Act”) are the sections of the Act which mandate that the children’s best interests are the paramount considerations. The objects and principles of the Part, with respect to parenting, are set out in the Act. Of course, many of the provisions in Pt VII apply to parents who, sadly and tragically, are no longer with the boys. Nevertheless, I must work through the s 60CC factors insofar as they are relevant here.

26. The first primary consideration is the children having a meaningful relationship with both parents.  That is sadly something that is not available to these boys now. 

27. The second primary consideration is protection from harm.  I am satisfied, as should be clear already, that the applicants have been protective of these boys, understanding of their needs and I am equally satisfied by what I have received from co-located officers and already referred to that there is no issue of protection from harm with these boys living with the applicants.  I do note there were historical records from the co-located officers about some concerns for the boys, but that was some time ago and with their parents. 

28. I move on to the 60CC(3) factors. 

    Wishes

29. This is not a case about the children’s wishes.  I am satisfied that, for example, if X was unhappy living with the applicants, then he would be old enough to vocalise that.  He has supports around him and I, again, note the Department of Communities and Justice has indicated they have no child protection concerns with the children being with the applicants. 

    Nature of relationships

30. The nature of the children’s relationship with their parents is one that is now fundamentally changed.  I am satisfied, for the examples already given, that the children have had a long relationship with the applicants and their blended family and all of that must be of incredible support to Y and X in these tragic circumstances. 

    Taking opportunities and maintaining the child

31. Section 60CC(3)(c) and s 60CC(3)(ca) are really about parents, but I have no doubt the applicants will provide for the boys.

    Effect of change, practical difficulties

32. Section 60CC(3)(d) is about change in circumstances and is perhaps the most profound of all of the additional considerations in this matter. The boys have suffered a significant and traumatic change in their circumstances. Sadly for the boys, that is not something that can ever be fixed. I am satisfied the applicants will provide the boys with the supports that they need and will foster and nurture the boys’ memory of their parents.

    The practical difficulty and expense of a child spending time with and communicating with a parent

33. Section 60CC(3)(e) is about parents, and I will not deal with that.

    Capacity to parent, parental responsibility

34. Section 60CC(3)(f) is about the capacity of the applicants – more usually about the capacity of parents – but can extend to others. I have no doubt and have been impressed, as ought be clear in what I have already said, by the steps taken by the applicants to familiarise themselves with the children and the children’s needs, especially Y.

    Maturity, sex, lifestyle and background 

35. Lifestyle is irrelevant. 

    If the child is an Aboriginal child or a Torres Strait Islander child

1. Section 60CC(3)(h) does not apply either.

   Responsibilities of parenthood

2. Section 60CC(3)(i) concerns the responsibility of parenting. The applicants are not parents, but I am satisfied they are responsible adults providing responsible, caring parenting for these children.

   Family Violence

3. Section 60CC(3)(j) and s 60CC(3)(k) are about family violence. I am satisfied in what I have already said about the department’s knowledge of the applicants that this matter does not arise.

   Further proceedings

4. Section 60CC(3)(l) is about further proceedings. I am satisfied that others within the children’s wider family have been advised of these proceedings and are content for the matter to travel in the way that it is going to today. I commend the applicants for continuing the boys’ links to Mr F and [aunty] Ms G and have no doubt they will continue to do so.

   Other

5. Section 60CC(3)(m) concerns “other” being anything else I might consider as relevant. The point of the Critical Incident List is to get parties who are suffering grief and trauma into the family law system and out of it as expeditiously as the children’s best interests will allow.

6. I accept the submission made on behalf of the applicants by Ms Begg that there is really nothing more to do here in the sense of what would be the point of another hearing.  I accept that to be so.  I do not see in all of the circumstances there is anything to be gained.  I have no doubt the applicants will also be grieving the loss of their very dear friends as, no doubt, are the boys.  The last thing that the applicants and the boys need in the circumstances I have described, and on the best interests findings I have made, is to be treated as a “usual”, if you like, family law matter where people return a number of times to the Court.  That is not necessary in this matter. 

   Parental responsibility

7. The final matter I will deal with is parental responsibility.  Plainly, it is in the best interests of the children that the applicants have parental responsibility for the children. 

8. For these reasons, I make the following [final] orders, as discussed with Ms Begg earlier.   They will be in the terms that I made on an interim basis, being Orders 1, 2, 3, 4 and 5. 

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Brasch.

Associate:

Dated:       5 March 2024