Mainey & Hamilton
[2023] FedCFamC1F 329
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Mainey & Hamilton [2023] FedCFamC1F 329
File number: BRC 558 of 2023 Judgment of: BRASCH J Date of judgment: 28 April 2023 Catchwords: FAMILY LAW – CHILDREN – CRITICAL INCIDENT LIST – Where both of the child’s parents have passed away – Where major long term decisions were required on an urgent basis – Where the paternal aunt seeks parental responsibility for the child – Where interim orders had been made to allow the paternal aunt to access service providers for the child and enrol the child in school – Where the Department holds no concerns – Final orders made Legislation: Family Law Act 1975 (Cth) Pt VII ss 60B, 60CC(2), 60CC(3)(a)-(m) Division: Division 1 First Instance Number of paragraphs: 48 Date of hearing: 28 April 2023 Place: Sydney (via video link) Solicitor for the Respondent: Miller Harris Lawyers ORDERS
BRC 558 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
MS HAMILTON
Respondent
order made by:
BRASCH J
DATE OF ORDER:
28 APRIL 2023
THE COURT ORDERS:
1.That the paternal aunt have sole parental responsibility for the major long-term issues for the child X, born 2008, including:
(a)The child’s education (both current and future);
(b)The child’s religious and cultural upbringing;
(c)The child’s health;
(d)Requesting that Medicare issue a card for the child and claiming Medicare benefits for the child;
(e)Dealing with the Department of Foreign Affairs and Trade, Passport offices or Visa providers; and
(f)Requesting a copy of the child’s birth certificate.
2.That the paternal aunt have responsibility for all day-to-day decisions with respect to the child.
3.That the child shall live with the paternal aunt and spend time with the step-mother as agreed in writing (including email or text message) between the step-mother and paternal aunt, and taking X’s wishes into account.
4.That pursuant to s 121 of the Family Law Act 1975, the paternal aunt be granted leave to publish a copy of these Orders to all service providers for the child, including but not limited to the child’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 child.
5.That these Orders are authority for the paternal aunt to schedule and consent to treatment, therapy, schooling, programs, services and the like for the child, and to give and receive such information from service providers as a parent would ordinarily receive.
6.In the event any wording in this Order constrains or otherwise fetters the paternal aunt’s ability to deal with service providers for the child, she has liberty to approach chambers by email (with an affidavit) via (…@…) under r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) seeking the relevant amendment/s.
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 the pseudonym Mainey & Hamilton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BRASCH J:
BACKGROUND
X was born 2008. X’s mother Ms C (“the mother”) tragically passed away in 2019. X’s father Mr B (“the father”) passed away in 2023. The original applicant Ms Mainey was the former partner of X’s father. Ms Mainey and the father shared a child together, being X’s younger sister.
X commenced living with the father and Ms Mainey in 2013.
Ms Mainey and the father separated in 2021 and X moved with the father. In early 2022 X commenced residing between Ms Mainey’s residence and the father’s.
Ms Mainey commenced proceedings by filing an Initiating Application on 13 January 2023. The matter was referred to the National Assessment Team for consideration to be included in the Critical Incident List. That referral was accepted and Ms Mainey’s material was filed. The matter came before me on 24 January 2023.
At that first return, the Court had the benefit of an Information Response Report from the Department of Children, Youth Justice and Multicultural Affairs (“the Department”), which was marked Exhibit 1. The report noted the Department had no current involvement with any of the parties or the child. I was advised there was a child protection history for the family and there had been six child concern reports and one child protection notification for X between early 2010 and early 2022. The report noted Ms Mainey also had a child protection history as a parent, consisting of three child concern reports received between mid-2020 until early 2022.
The father also had a child protection history consisting of nine child concern reports and one child protection notification (the same concerns identified for X). The investigation and assessment detailed in the report concerned the father, an older half sibling of X and the mother and was dated late 2011. The report helpfully noted “[t]here does not appear to be any child protection concerns for [Ms Mainey] [sic], other than being named in child concern reports as she was a member of the father’s household” (Exhibit 1, p.2).
At the first return, that report gave me comfort to make in orders that Ms Mainey, on an interim basis, have parental responsibility and that X live with her. On that first return, I also made orders that these proceedings and the material Ms Mainey was relying upon be brought to the attention of specific people within the wider maternal and paternal family. The matter was then listed to return on 28 February 2023.
On 17 February 2023 Ms Hamilton (“the paternal aunt”) filed an Application in a Proceeding, an affidavit and a Notice of Child Abuse and Risk. In her affidavit Ms Hamilton deposed amongst other things:
4. My brother passed away [in] 2023 […]. [X] was not in my brother's care when he [died]. My brother had left [X] in the care of her paternal grandparents a few days prior to his [death].
5. His funeral was held [in] 2023. Following the funeral, [X] stayed with [Ms Mainey].
6. [In early] 2023, [X] [self-harmed] whilst in [Ms Mainey's] care. It is my understanding that [X] had been communicating with a friend and the friend became concerned for her wellbeing and asked the police to conduct a welfare check.
7. The police found [X] at [Ms Mainey's] residence, having [self-harmed] and she was taken to hospital.
8. [X] has been residing with me since she was discharged from hospital [in early] 2023 […]. It is my understanding that [X] requested that the medical staff contact me to pick her up. I discharged her from the [D Hospital] on this date.
(Affidavit of Ms Hamilton filed 17 February 2023, paragraphs 4-8)
Ms Hamilton further deposed that she had taken appropriate steps to secure professional help and support for X.
Ms Mainey (who was at that point in time holding parental responsibility) assisted Ms Hamilton enrolling X at E School. Ms Hamilton deposed she was having difficulty because she did not have parental responsibility at that stage. That was a cooperative and appropriate way for the matter to progress.
E School is an appropriate school for X to be enrolled in because Ms Hamilton’s children attend that school; they are, of course, X’s cousins. Thus X is able to not only attend the same school as her cousins, but would also go to and from school by bus with them as well.
In the tragedy that has been X’s life, it is important that she had as much consistency as she can and support about her. Attending school with her cousins and travelling to and from with them are such things.
At the hearing on 28 February 2023, the original applicant, Ms Mainey indicated she was content for X to reside with the paternal aunt, and asked for leave to discontinue her application. I gave her that leave. I am told X and Ms Mainey remain in contact.
For the hearing on 28 February, the Department provided an update on their involvement with the parties and with X. The department was aware that X had presented to hospital and given the steps that were taken to support X, the Department determined to finalise the matter as a child concern report as it did not meet the threshold for further investigation and assessment. That report, which became Exhibit 2, made it plain the Department was aware that X had been discharged into Ms Hamilton’s care and was living with her.
The Department was also able to give me information about Ms Hamilton which was to the effect that there were some historical matters that had been raised with respect to her, but importantly for my purposes, the Department had received no information in relation to Ms Hamilton since 2014. Importantly, albeit historical, Ms Hamilton was assessed to be a parent willing and able to provide for the care and protective needs for her children.
Accordingly, I made orders on 28 February giving Ms Mainey leave to withdraw and included Ms Hamilton as a party in the proceedings. I made orders for sole parental responsibility in Ms Hamilton’s favour and that X live with her and spend time with Ms Mainey as agreed, taking X’s wishes into account. I also made an order that Ms Mainey and Ms Hamilton use their best endeavours to promote and facilitate a relationship between X and Ms Mainey and her daughter. I made a raft of specific issues orders to facilitate X getting the help that she needed and enrolment at school.
I listed the matter for further hearing today being 28 April 2023. I invited the Department to advise me if they had had any involvement with Ms Hamilton or X since the matter was last before me and today. They advised they had no involvement at all since the last appearance. I excused their attendance today.
As foreshadowed in the February hearing, I said I would consider making final orders today. Given the Department has no concerns with Ms Hamilton, and given Ms Mainey was very complimentary of the respondent Ms Hamilton and thought it best X live with her, I have formed the view that it is appropriate to make final orders.
X has had much trauma in her life. Equally Ms Hamilton has had to deal with the death of her brother. So long as I can do what is in X’s best interests, the point of the Critical Incident List is to get people in and out of the court system as quickly as can be done, because people like Ms Hamilton have priorities to deal with their own grief, and, in this case to support X. If it can be avoided, court is the last place Ms Hamilton needs to be coming back to.
Material
The following material was before the Court:
·Response from the Department of Children, Youth Justice and Multicultural Affairs dated 18 January 2023 (Exhibit 1);
·Updated Response from the Department of Children, Youth Justice and Multicultural Affairs dated 27 February 2023 (Exhibit 2);
·Application in a Proceeding filed 17 February 2023;
·Affidavit of Ms Hamilton filed 17 February 2023;
·Notice of Address for Service filed 16 February 2023; and
·Notice of child abuse, family violence or risk filed 17 February 2023.
LEGAL PRINCIPLES
Part VII of the Family Law Act 1975 (Cth) (“the Act”) tells me that the paramount consideration in an application such as this is X’s best interests. Section 60B of the Act sets out the objects of Part VII and the principles underlying it. Much of that refers to parents and, sadly, X’s parents are no longer with us.
The primary considerations in s 60CC(2) direct my attention to ensuring X has a meaningful relationship with both of her parents which, sadly, cannot occur. Section 60CC(2) also refers to protecting children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. I have already referred to the Department’s report in relation to the paternal aunt and I have no concerns whatsoever that she poses any kind of threat, risk or harm as referred to in that Act.
I then turn to the additional considerations under s 60CC(3), many of which are, again, irrelevant because they refer to parents.
(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;
Ms Hamilton deposes that X says she wants to live with her and go to school in City F. I have no reason to doubt that. X seems perfectly able to express her own views. If her view was something different from living with Ms Hamilton, I have no doubt she would have found some way to make that known.
(b) the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child);
The original applicant, Ms Mainey, supports X living with the paternal aunt.
In my initial orders I required the then applicant to provide a copy of her material to the maternal grandmother, the deceased mother’s two sisters and the paternal grandparents. Obviously, maternal and paternal family were therefore aware of this application, and it is Ms Hamilton who applied to join as a party.
No one else who was notified of these proceedings is opposing X living with Ms Hamilton. I therefore take it then that they are happy with this arrangement.
I also infer that when X was discharged into the care of her paternal aunt that that was an arrangement X supported, and it must be that the hospital did too.
I have already mentioned that X will now attend the same school as her cousins and travel with them. They are important supports.
Ms Hamilton deposed to the frequency of time that she and her children would see X and describes her relationship with X and the rest of the paternal family as close. I have no reason to doubt that.
I also observe that X is of an age where she can reach out to Ms Mainey as she chooses. It will be important for X that Ms Mainey and her daughter, that is X’s younger sister, maintain a relationship.
The paternal aunt is also encouraged to support X in maintaining a relationship with her maternal family as it is important for children to have knowledge of their maternal and paternal identities.
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child;
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
Tragically, these considerations do not arise as they refer to parents.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
X has been in the care of paternal aunt since early 2023. That is not a terribly long time but in the circumstances, but it is important that that continuity of care continue. X also has the benefits of a sibship with her cousins.
X has had significant trauma in losing both her parents at her tender age. What she needs now is the love and support of family which I am confident the paternal aunt will provide.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
This subsection is not relevant.
(f) the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
The very fact of the paternal aunt taking X into her care and providing for her, as is plain to me on the material, and providing the nurture and love that she needs, demonstrates to me, that the paternal aunt possesses that capacity. X, in the tragic circumstances of his case, is most fortunate to have the paternal aunt.
I am also satisfied Ms Hamilton has the capacity to provide for X’s needs as she organised professional support for her.
Onto more physical capacities, Ms Hamilton deposes that she lives in a duplex with her partner and two children. That is however a temporary arrangement and at least as of her February affidavit they were looking for a larger residence which would allow everyone to have their own bedrooms.
Ms Hamilton also deposed to providing all the basics for X such as medical and dental care, school uniforms, clothes, extra-curricular activities, just to name a few.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;
These subsections do not arise.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
As for responsibilities of parenthood, this is a section that really refers to the child’s parents. But I make the same observations here as I did with respect to capacity to provide just previously; I have no doubt that even though Ms Hamilton is not X’s parent, she will nevertheless be a responsible carer.
(j) any family violence involving the child or a member of the child’s family;
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter;
These subsections do not arise.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
I then turn to s 60CC(3)(l), whether it would be preferable to make an order that would least likely to lead to the institution of further proceedings. Part of the hallmark of the Critical Incident List is to have applicants, when it is appropriate to do so, to move into the Family Law system and out of the Court as expeditiously as possible. That is so in this case.
(m) any other fact or circumstance that the court thinks is relevant.
The final s 60CC factor is subsection (m), any other factor or circumstance the Court thinks is relevant.
I have already said all I need to say about how important it is for both X and the paternal aunt, in the circumstances of this case, to exit from the Court as soon as possible. That will be today.
I will make an order with respect to the slip rule. If it turns out any of the words of my order constrain a service provider, then I do not want Ms Hamilton to have to file an Initiating Application to get the matter addressed. The slip rule order will include my associate’s email so an affidavit could be sent to the associate indicating what the problem is and what the solution is proposed. I would require that to be by way of affidavit and ideally any supporting documents, for example from Births, Deaths and Marriages setting out what the problem with the orders are.
For all of those reasons, I make the orders I discussed with Ms Hamilton’s solicitor when we began this hearing, and on a final basis.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 1 May 2023
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