Mosman and McCormick and Anor
[2011] FMCAfam 1550
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MOSMAN & MCCORMICK & ANOR | [2011] FMCAfam 1550 |
| FAMILY LAW – Parenting – application by non-biological mother seeking parental responsibility – supported by biological father – non-involvement of biological mother – consideration of the best interest of the child – orders for equal shared parental responsibility between applicant and biological father – orders for child to live with applicant and spend time with father. |
| Family Law Act 1975, ss.60B, 60CA, 60CC(2), (3), 61DA, 65G, 65G(2)(a) |
| Applicant: | MS MOSMAN |
| First Respondent: | MR MCCORMICK |
| Second Respondent: | MS FINK |
| File Number: | TVC 1213 of 2010 |
| Judgment of: | Coker FM |
| Hearing date: | 24 March 2011 |
| Date of Last Submission: | 24 March 2011 |
| Delivered at: | Townsville |
| Delivered on: | 24 March 2011 |
REPRESENTATION
| Solicitors for the Applicant: | McDonald Leong Lawyers |
| First Respondent : | In person |
ORDERS
That the Applicant, MS MOSMAN, and the Father,
MR MCCORMICK, have equal shared parental responsibility for the major long term decisions to be made for the child, [X] born [in] 2002.
That without limiting the parental responsibility of either party pursuant to Order 2 herein, each party shall keep the other party informed of and shall properly consult with the other with respect to any significant parenting issue affecting the child. For the purposes of these orders, a “significant parenting issue” is:
(a)Any medical or health matter concerning the child;
(b)Any medical or health matter affecting either party which may affect the ability of that party to care for the child;
(c)Matters relating to the education of the child, including, but not limited to, the choice of school and curriculum and the provision to the other party of all school reports, school photographs and all communications from the child’s school (at each party’s expense) other than with respect to routine or administrative matters;
(d)Disciplinary matters other than of a trivial nature;
(e)Matters concerning the social development and sporting activities of the child;
(f)Matters concerning the religion or faith of the child;
(g)Any intended change of place of domicile or telephone number of either party;
(h)Any intended change in the surname by which the child is commonly known from, that which appears on the child’s birth certificate;
(i)Generally, any matter regarding the child in respect of which a parent would be informed of or consulted with respect to having regard to the provisions of Part VII of the “Family Law Act 1975”.
That each party shall be responsible for the day-to-day care, welfare and development of the child whilst she is in their respective care.
That the child, [X] born [in] 2002 live with MS MOSMAN.
That the Father spend time with the child at all times as may be agreed between the parties.
IT IS NOTED that publication of this judgment under the pseudonym Mosman & McCormick & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT TOWNSVILLE |
TVC 1213 of 2010
| MS MOSMAN |
Applicant
And
| MR MCCORMICK |
First Respondent
And
| MS FINK |
Second Respondent
REASONS FOR JUDGMENT
These proceedings relate to orders sought with regard to the parenting of the child [X]. [X] was born [in] 2002 and has therefore just recently turned nine years of age. She is the child of, what I understand was, a very brief if not passing relationship between the first respondent to these proceedings Mr McCormick and the second respondent to these proceedings Ms Fink. The applicant in the proceedings is Ms Mosman. She is not the biological parent of the child [X] but one should formally note here that, in every other respect, she is to all intents and purposes [X]’s mother and the only person known by [X] to be her mother.
The situation is an unusual one. It would appear that the second respondent, Ms Fink, had little, if any, interest in being a mother, she being young at the time of conception. As a result of discussions held between the father and also Ms Mosman, with whom he had previously had a relationship and in fact, subsequently continued a relationship, it was agreed that the child would be placed in the care of
Mr McCormick and Ms Mosman. That occurred and since, it would seem literally, the date of birth of the child, there has been no interaction whatsoever by [X] with her birth mother. To all intents and purposes and, in fact, I accept, from the perspective of [X], there is only one mother and one father and that is the applicant Ms Mosman and the respondent Mr McCormick.
I am asked to make orders in the application filed on 3 November 2010 which will legitimise what currently exists. The orders sought in general terms are that Ms Mosman and Mr McCormick have equal shared parental responsibility for decisions to be made in relation to the long-term care, welfare and development of the child. That is exactly what has occurred for the last nine years.
It is proposed that [X] live with Ms Mosman. Again, that is exactly what has occurred in the last nine years and similarly that the child spend time with Mr McCormick, her father, at all times as might be able to be agreed and that again has occurred by agreement between the parties.
The difficulty or at least, if you like, the issue that needs to be dealt with in relation to this matter is the situation of there being a biological parent and, of course, the law recognises the significance and importance of a biological parent in a child’s life.
However, I am mindful of the fact that section 60CA specifically notes that the paramount consideration, in relation to any arrangements to be made with regard to the parenting of children, is that the child’s welfare is the paramount or first and most overriding consideration. Other factors need to be looked at, of course, but they need to be looked at being mindful at all times of that paramount obligation and ensuring that the best interests and the welfare of the child are met.
There is a presumption at law that arises pursuant to the provisions of section 61DA that equal shared parental responsibility between the parents is in the best interests of the child, but for every rule as we all know, there is an exception and that presumption can be rebutted in circumstances of domestic violence, though that is not an issue that seems to arise here at all, but also in any other circumstances, it might be considered by the Court to be an appropriate reason to forgo the presumption of equal shared parental responsibility.
The most obvious reason in relation to this is the fact that Ms Fink has, for reasons perhaps best known to her, having moved on with her life, made other arrangements in relation to her life and had no involvement whatsoever in the child’s life. She has not participated in any way, shape or form in relation to decisions to be made with regard to the child and therefore it would be a nonsense in every respect, to suggest that now there would need to be, for example, an attempted consultation and discussion in respect of issues with regard to the child’s education, medical treatment and the like.
I would without hesitation accept that the appropriate course to follow is to rebut the presumption of equal shared parental responsibility arising as between the biological mother and the father.
But there is still, of course, that additional consideration of what arrangements need to be put in place with regard to decision-making. The applicant and the father had put that arrangement in place and it has worked appropriately and the child is the one who has benefited from such an arrangement.
I am not asked specifically to make an order by consent in relation to this matter and therefore would not think necessarily that the provisions of section 65G specifically apply but, at least to some extent if you like, it is a case where there is a need to consider what is in the best interests of the child and whether it is appropriate to make the orders that I am asked to make, in relation to this matter because, of course, whilst it is not a consent order, there not being the agreement of the biological parent, there is certainly the support of the father in relation to the matter.
Normally, one would therefore require, pursuant to provisions of section 65G, the provision of a report addressing the issues in relation to the welfare and the best interests of the child but, again, for every rule there is an exception. The law specifically provides that if the Court is satisfied that there are circumstances that make it appropriate to make the proposed order, even though the conditions in section 65G(2)(a), being the provision of report are not satisfied, then the Court can make the order. In this instance, I am satisfied that it is the appropriate course to follow.
I am mindful of the obligations and the objects that arise pursuant to provisions of section 60B and, of course, the considerations which are, to all intents and purposes a reflection of section 60B, put into general effect pursuant to the provisions of section 60CC(2) and (3). Here there are two parents. One of them just happens not to be the biological parent of the child.
The child has a meaningful relationship with those two most important people in her life. Those two persons Ms Mosman and Mr McCormick put the child to the fore. They make all decisions in relation to the child. Clearly, from the material that I have read in relation to this matter, the child is properly cared for, properly housed, properly educated and, no doubt and most importantly, loved and cherished by the two people most important in her life.
When one considers what is in the best interests of the child, there is no other answer that could be found in relation to this matter other than that it is the applicant and the father, the first respondent, as the appropriate persons to have responsibility for decisions to be made and for this child’s life to continue on the smooth and well-charted course that clearly has already been decreed by the actions of the applicant and Mr McCormick.
Ms Mosman in particular needs to be commended. She stepped up when unfortunately the biological mother, for reason perhaps unknown to any of us and maybe even unknown to her, was not willing or able to do so. The person that has been the beneficiary of that action is the child [X] and I have no doubt that that will continue to be the case.
ORDER DELIVERED
The best interests of the child clearly are reflected in the continuation of what has existed now for nine years, [X] living with the applicant. She is the only mother that the child has known and the only female that has stepped up and properly taken the responsibilities for the child.
ORDER DELIVERED
I have no doubt that that will occur. I am not asked to alter the birth certificate and in fact, I am not even certain what might be the contents of the birth certificate, insofar as the recording of the birth mother and father in relation to the matter. No doubt Ms Mosman and
Mr McCormick have already considered the issues that will need to be addressed in time to come but that is a matter that the parents, and they are the parents, should properly decide in relation to such matters. I have no hesitation therefore in making the orders that I have indicated in relation to this matter, and I certainly wish Ms Mosman,
Mr McCormick and most significantly, [X], the best for the future.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Coker FM
Associate:
Date: 14 August 2012
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