FAMILY COURT OF AUSTRALIA
Merton & Manley [2020] FamCA 1084
File number(s): PAC 2474 of 2018 Judgment of: FOSTER J Date of judgment: 18 December 2020 Catchwords: FAMILY LAW – CHILDREN – UNDEFENDED PARENTING – Where application for final parenting orders by mother and step-father – Where father of child disengaged from the proceedings – Where consideration of applicable principles – Where orders made in best interests of the child.
FAMILY LAW – ADOPTION – Leave to commence proceedings – Step-parent adoption – Joint application by mother and step-father pursuant to s 60G of the Family Law Act 1975 (Cth) seeking leave to commence adoption proceedings – Consideration of the child’s best interests – Orders made as sought by the mother and step-father.
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60G, 61DA, 65DAA, 69ZN
Family Law Rules 2004 rr 11.02, 16.07
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Goode and Goode (2006) FLC 93-286
Jarrah & Fadel [2014] FamCAFC 14
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Number of paragraphs: 92 Date of hearing: 18 November 2020 Place: Parramatta Solicitor for the Applicants: Marsdens Law Group Respondent - self‑represented litigant: The Respondent did not attend Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
PAC 2474 of 2018 BETWEEN: MS MERTON
First Applicant
MR MERTON
Second Applicant
AND: MR MANLEY
Respondent
MS DODSON
Independent Children’s Lawyer
ORDER MADE BY:
FOSTER J
DATE OF ORDER:
18 NOVEMBER 2020
THE COURT ORDERS THAT:
1.That Ms Merton and Mr Merton shall have equal shared parental responsibility for the child, X (dob: … 2008).
2.That the child, X (dob: … 2008), live with the Applicant Mother and Applicant Step Father.
3.That the child shall spend time with the Respondent Father at such times and under such conditions as may be agreed between either the Applicant Mother or the Applicant Step-Father and the Respondent Father in writing.
4.That leave be granted pursuant to Section 60G of the Family Law Act 1975 (Cth) for proceedings to be commenced for the adoption of X by Mr Merton (dob: … 1989).
5.That the Applicant Mother and the Applicant Step Father have equal responsibility for giving consent and making arrangements for the issue of the child’s passport and that the Respondent Father’s consent to the issuing of the child’s passport be dispensed with.
6.That the Applicant Mother and the Applicant Step Father have equal responsibility for decisions about taking the child outside the Commonwealth of Australia.
7.That the Respondent Father be restrained from placing the child on the Airport Watch list otherwise known as the PACE Alert List.
8.That the Applicant Mother and the Applicant Step Father have equal responsibility for decisions about change to the surname of the child named in Order 1 above and that the Registry of Births, Deaths & Marriages be authorised to effect such change upon request or application by the Applicant Mother and Applicant Step…
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- Merton & Manley [2020] FamCA 1084
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- [2020] FamCA 1084
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CaseChat Overview and Summary
The primary legal issues before the court were: firstly, what final parenting orders were in the best interests of the child, X, considering the father's disengagement and the child's emotional needs; and secondly, whether to grant leave pursuant to section 60G of the *Family Law Act 1975* (Cth) for Mr Merton to commence adoption proceedings. The court also had to consider the additional factors outlined in section 60CC(3) of the Act in its determination of the parenting orders.
The court's reasoning focused on the child's significant emotional needs and the negative impact the prospect of spending time with the father had on the child's anxiety, as evidenced by medical records and the family consultant's views. The court was satisfied that the mother and step-father were capable of ensuring any future re-establishment of a relationship with the father would occur without exposing the child to an unacceptable risk of psychological harm. The court applied the principles of the child's best interests, taking into account the various factors under section 60CC(3), including the nature of the relationship with each parent, the parents' past involvement, and the capacity to provide for the child's needs.
The court made orders granting equal shared parental responsibility, with the child to live with the mother and step-father. The child was to spend time with the father under mutually agreed conditions. Crucially, leave was granted for Mr Merton to commence adoption proceedings, and the father's consent to the child's passport and change of surname was dispensed with. The court also ordered that the respondent father be restrained from placing the child on the Airport Watch list.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. That Ms Merton and Mr Merton shall have equal shared parental responsibility for the child, X (dob: … 2008).
2. That the child, X (dob: … 2008), live with the Applicant Mother and Applicant Step Father.
3. That the child shall spend time with the Respondent Father at such times and under such conditions as may be agreed between either the Applicant Mother or the Applicant Step-Father and the Respondent Father in writing.
4. That leave be granted pursuant to Section 60G of the Family Law Act 1975 (Cth) for proceedings to be commenced for the adoption of X by Mr Merton (dob: … 1989).
5. That the Applicant Mother and the Applicant Step Father have equal responsibility for giving consent and making arrangements for the issue of the child’s passport and that the Respondent Father’s consent to the issuing of the child’s passport be dispensed with.
6. That the Applicant Mother and the Applicant Step Father have equal responsibility for decisions about taking the child outside the Commonwealth of Australia.
7. That the Respondent Father be restrained from placing the child on the Airport Watch list otherwise known as the PACE Alert List.
8. That the Applicant Mother and the Applicant Step Father have equal responsibility for decisions about change to the surname of the child named in Order 1 above and that the Registry of Births, Deaths & Marriages be authorised to effect such change upon request or application by the Applicant Mother and Applicant Step Father.
9. Reasons for Judgment are reserved to a date to be fixed.
10. In the event of any application for costs by the Applicants, that such application be made by way of written submissions filed and served by no later than Friday, 18 December 2020 with any submissions in response from the Respondent father to be filed and served by no later than 15 January 2021 and upon completion of submissions judgment is reserved to chambers.
11. Pursuant to section 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 Annexure “A” attached hereto and these particulars are included in these orders.
12. All outstanding applications be dismissed.
13. The matter be removed from the active pending cases list.
14. All subpoenaed documents produced and all exhibits tendered in these proceedings, be returned at the expiration of one calendar month unless an appeal is lodged.
THE COURT NOTES THAT
15. In the circumstances of this matter there is no application for costs by the Independent Children’s Lawyer.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
It is clear that the child has significant emotional needs. It is also clear from the child’s medical records that the child’s anxiety was significantly impacted by the prospect of spending time with the father. The family consultant expressed the view that were the child to commence spending time with the father, it would need to be “at a pace that is suitable to his psychological well-being and with appropriate support”. The Court is satisfied, in align with the position of the ICL, that the mother and step-father are sufficiently protective parents such that they are capable of ensuring that if the child is to re-establish a relationship with the father in the future, this will occur in a way that the child is not exposed to an unacceptable risk of psychological harm.The additional considerations: s 60CC(3) Section 60CC(3) sets out the additional considerations:(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;(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);(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; (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); (iii)With whom he or she has been living;(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;(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;(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; (i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents; (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; (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; and(m)Any other fact or circumstance that the court thinks is relevant.