McKellar and Meldrum

[2010] FamCA 83

FAMILY COURT OF AUSTRALIA

MCKELLAR & MELDRUM [2010] FamCA 83

FAMILY LAW – CHILDREN – With Whom a Child Lives – Consent Orders – Where the Applicants are of no relation to the Child

Family Law Act 1975 (Cth) ss 65DA(2), 62B, 65G, 65(2)(a), 65DA(2), 60CC,
Family Law Rules 2004 (Cth)- R. 10.17

APPLICANTS: Mr and Mrs McKellar

RESPONDENT: Ms Meldrum

FILE NUMBER: BRC 97 of 2010

DATE DELIVERED: 27 January 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 27 January 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Mazir of Butler McDermott Lawyers

SOLICITOR FOR THE RESPONDENT: Ms Gallagher of Gallagher Legal

Orders

IT IS ORDERED BY CONSENT THAT

1. Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the document titled “Minutes of Consent” sealed and attached hereto.

IT IS FURTHER ORDERED THAT

1. 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 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.

IT IS DIRECTED THAT

1. The Minutes of Consent remain upon the Court file.

MINUTES OF CONSENT

BY CONSENT IT IS ORDERED

1. That the Applicants have the sole parental responsibility for the long term care, welfare and development of the child T born … April 2009.

2. That the said child live with the Applicants.

3. That the Applicants have sole parental responsibility for the day to day care, welfare and development of the said child.

4. That the child have time with the Respondent:

   a.for two hours during one week either side of the child’s birthday each year;

   b.for two hours during one week either side of Christmas Day each year.

5. That the Respondent be permitted to send the child parcels and cards and the Applicants will promptly deliver those items to the child.

6. That notwithstanding the provisions of order 1 and 3 above, the Applicants will inform the Respondent of any surgery necessary for or major illness suffered by the said child. That the Applicants will provide to the Respondent a photograph of the child each year and once the child commences formal education that photograph may be a formal school photograph.

7. That the Applicants be at liberty to change the name of the child to T McKellar and the Respondent do all acts and things necessary to facilitate such change of name being recorded with the Registrar of Births, Deaths and Marriages.

8. That all parties will from the date of these orders use the name of T McKellar for the child.

9. That the requirement of service on the Father of this Application be dispensed with.

IT IS NOTED that publication of this judgment under the pseudonym McKellar & Meldrum is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 97 of 2010

MR AND MRS McKELLAR

Applicants

And

MS MELDRUM

Respondent Mother

EX TEMPORE

REASONS FOR JUDGMENT

1. If orders are made in terms of the minutes of consent agreed to by the parties to these proceedings, an as yet tiny child T, who was born in April 2009, will reside with, and have the responsibilities of parenthood met by, parties who are not a parent, grandparent or other relative of T’s. 

2. Section 65G of the Act requires, in those circumstances, this court to be satisfied that there are circumstances that make it appropriate to make the proposed order, notwithstanding the fact that in this particular case the parties have not attended a conference with a family consultant as section 65(2) subparagraph A requires.  The facts and circumstances of the case are, perhaps understandably, somewhat unusual.  In particular, they include the fact that the child’s mother is the twin sister of a woman who was fostered as a child by the male applicant’s parents, Mr and Mrs R.

3. In circumstances where the mother of the subject child fell pregnant in 2008, and evinced some difficulties associated with the pregnancy, she, through her twin sister, was referred to the male applicant’s parents, and, ultimately, to the male applicant and his wife. 

4. There is little doubt, on the material before me, that the applicants have a stable, loving relationship and would provide T with all of the requisite emotional, psychological and physical requirements necessary for her appropriate nurture and care. 

5. The circumstances which provided the catalyst for the child coming into the care of the applicants, initially, were her mother indicating that “she could not handle it” and evidencing a concern about whether she had the capacity to provide for the needs of the child on a short, medium or long term basis.  The minutes of consent provide that T is to spend time with her mother for two hours during one week either side of the child’s birthday each year, and for two hours during one week either side of Christmas day each year.  In addition, the orders contemplate the mother being permitted to send the child parcels and cards, which the applicants are obliged to deliver to the child.  The orders also provide that the applicants be at liberty to change the name of the child and do all things necessary to facilitate the change of name and to formally record it with the registrar of births, deaths and marriages.

6. Each of the parties are represented by experienced solicitors.  I am satisfied that the parties, and in particular the mother, are aware of the ramifications of the orders which I note are parenting orders and therefore liable to be changed upon satisfying the court of necessary pre-conditions for the change of parenting orders.

7. I am also satisfied that, by reference to section 60CC of the Act, the best interests of this yet young child are met by the order sought from the minutes of consent.  It seems to me, in circumstances where the Act puts a premium on parties negotiating sensibly and intelligently with a view to arriving at agreed positions with respect to the “parenting” of children, and where the result of the application of common sense, intelligence and discussion has resulted in agreements, and where otherwise the court is satisfied that orders best meet the best interests of the child or children subject to the orders.

8. It is inappropriate, particularly bearing in mind the principles and duties imposed upon the court by Division 12A of the Act, to require these parties to undertake the time and expense involved with a conference with a family consultant.  I’m satisfied, therefore, in all the circumstances, that:  (a) the orders proposed are in the best interests of the child and, (b) that an order will be made pursuant to section 65G(2)(b) of the Act.

9. As a separate matter an order is sought formally dispensing with the need for service on the father.  The evidence clearly reveals that the father of this child is unknown and is not capable of being known, and in those circumstances it is appropriate to formally make the order dispensing the service sought.  I order accordingly.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  11 February 2010