Musgrove & Panshin
[2014] FCCA 1680
•31 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MUSGROVE & PANSHIN | [2014] FCCA 1680 |
| Catchwords: PRACTICE AND PROCEDURE – Jurisdiction – whether applicant is a person concerned with the care, welfare or development of the child – breakdown of same-sex relationship – threshold test – where applicant has made out a prima facie case that she has standing to bring an application for parenting orders. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60CC, 60CD, 64C, 65C, 68L |
| Cases cited: Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 Harris & Calvert [2013] FCCA 955 Re J & M: Residence Application [2004] FMCAfam 656; (2005) 32 Fam LR 1352 KAM & MJR [1998] FamCA 1896; (1998) 24 Fam LR 656; (1999) FLC 92-847 Re K (1994) 17 Fam LR 537; FLC 92-461 Laurita & Anor & Morda [2012] FMCAfam 1439 R & M [2012] FMCAfam 279 Tran & Ngo [2012] FMCAfam 1352 |
| Applicant: | MS MUSGROVE |
| Respondent: | MS PANSHIN |
| File Number: | SYC 2651 of 2014 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 23 July 2014 |
| Date of Last Submission: | 23 July 2014 |
| Delivered at: | Sydney |
| Delivered on: | 31 July 2014 |
REPRESENTATION
| Solicitor for the Applicant: | Ms Baltins |
| Solicitors for the Applicant: | Legal Aid NSW |
| The Respondent: | In person |
ORDERS
It is declared that the Applicant is a person concerned with the care, welfare or development of the Child [X] born [omitted] 2002.
The Applicant and the Respondent are to attend a Child Dispute Conference with a Family Consultant under the provisions of s.11F of the Family Law Act 1975 at a time and place to be fixed and such conference is to be reportable under s.11C of the Act.
In accordance with s.68L of the Family Law Act 1975, the interests of the child [X] born [omitted] 2002 are to be independently represented by a lawyer and for this purpose Legal Aid New South Wales is requested to arrange such representation.
Within fourteen (14) days from the date of this Order the parties must forward to Legal Aid New South Wales 323 Castlereagh Street Sydney for the use of the Independent Children’s Lawyer when appointed copies of all Applications, Responses, Affidavits and all other relevant documents.
The Independent Children’s Lawyer, when appointed, has leave to issue up to ten (10) subpoenas without charge.
IT IS NOTED that publication of this judgment under the pseudonym Musgrove & Panshin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 2651 of 2014
| MS MUSGROVE |
Applicant
And
| MS PANSHIN |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application for parenting orders in respect of a girl named [X] who was born on [omitted] 2002. The Respondent is the Child’s Mother. The Applicant is her former partner.
By her Response filed on 18 June 2014 the Respondent asks the Court to dismiss the Application under the provisions of s.65C of the Family Law Act 1975 (Cth).
Background
The Applicant was born on [omitted] 1983. The Respondent was born [omitted] 1980.
The Respondent is the Mother of the child [X], who was born on [omitted] 2002. The Child’s father is a man named Mr I, who was born on [omitted] 1967. The Respondent and the Child’s father were married on [omitted] 2001 and were divorced on 2 September 2006.
The father has not been named as a Respondent to the Application. However, there appears to be no issue between the parties that the father has had no contact with the child since 2003. He apparently resides in [country omitted].
Neither the Applicant nor the Respondent knows the father’s address in [country omitted]. There are no parenting orders in force between the Respondent and the Child’s father.
The parties commenced their relationship in 2005 when they moved into rental accommodation together. The Respondent deposes that the parties’ relationship commenced on 5 May 2005.[1] The parties separated in 2012. Again, the Respondent deposes that they separated on 4 July 2012.[2]
[1] Affidavit of Ms Musgrove 16.6.2014 at paragraph [7]
[2] Ibid at [12]
The Child remains living with the Respondent.
There is no issue that the Applicant has had no contact with the Child since the parties separated, apart from sending the child birthday cards.
The Applicant does not know where the Respondent and the Child are living. The Respondent does not want the Applicant to know her address.
Whether the Applicant has standing to bring the Application
The Applicant is not a biological parent of the child. The preliminary question to be decided is whether the Applicant has the standing to bring a parenting Application.
Section 64C of the Family Law Act 1975 provides that a parenting order in relation to a child may be made in favour of a parent of the child or some other person.
Section 65C sets out who may apply for a parenting order:
A parenting order in relation to a child may be applied for by:
(a) either or both of the child’s parents; or
(b) the child; or
(ba) a grandparent of the child; or
(c) any other person concerned with the care, welfare or development of the child.
In order for her Application to continue, the Applicant must demonstrate that she is a person concerned with the care, welfare and development of the Child under s.65C(c).
I had occasion to consider this question in the decision of Tran & Ngo[3], referred to by the Applicant’s solicitor in her submission. Tran & Ngo was an application by a paternal aunt for parenting orders where the father was deceased and the mother had left Australia. In the course of that decision I briefly reviewed the authorities before finding that the aunt had standing to apply for a parenting order as she met the threshold test in s.65C(c) (see also Laurita & Anor & Morda[4] at [81]-[84]).
[3] [2012] FMCAfam 1352
[4] [2012] FMCAfam 1439
The description of a “threshold test” in s.65C(c) was used by Burr J in KAM & MJR[5] at 667:
5.1.3 In order to proceed beyond the mere making of the application, the applicant for a parenting order must demonstrate that they are a “person concerned with the care, welfare or development of the child”. In my view this imposes a threshold test, it being a test to be determined on the individual facts and circumstances of each case…
5.1.5 The specific wording of s. 65C(c) appears to require demonstration of a concern with only one of the issues of care, welfare or development.
[5] [1998] FamCA 1896; (1998) 24 Fam LR 656; (1999) FLC 92-847
In Re J and M: Residence Application[6], Walters FM[7] dealt with a case where an application was made for a parenting order by the biological mother and her partner in a same sex relationship. The children were born by an IVF procedure by an anonymous sperm donor. His Honour found that both applicants could apply for a parenting order. They were both involved in all aspects of the care of the children and they considered themselves the joint parents of the children. His Honour held at [21]:
Ms F is a parent of the twins, and there can be no doubt that Ms B is a person concerned with their care, welfare or development.[8]
[6] [2004] FMCAfam 656; (2005) 32 Fam LR 668
[7] As his Honour then was
[8] (2005) 32 Fam LR 668 at 671 [21]
In R & M[9] Driver FM[10] dismissed an application by a friend of the recently-deceased father of the child concerned, finding that the applicant had had no prior involvement with the care, welfare or development of the child and therefore had no standing to bring the application.
[9] [2002] FMCAfam 279
[10] Now Judge Driver
Evidence and Submissions
The Applicant relied on the following:
a)her affidavit of 2 May 2014; and
b)her affidavit of 18 July 2014.
The Respondent relied on her affidavit of 16 June 2014.
Neither party gave oral evidence.
It is the Applicant’s case that she and the Respondent were in a relationship for approximately seven years and two months, during which time the Child lived with them. She deposed in both of her affidavits that she used to care for the child on a day to day basis, involving herself in such tasks as:
a)supervising the child;
b)playing with her and teaching her letters and numbers;
c)cooking the child’s meals;
d)bathing and dressing the child;
e)getting the child ready for bed and settling her;
f)getting the child ready for school and preparing her lunches and snacks;
g)assisting the child with her homework and assignments;
h)taking the child to extra-curricular activities;
i)purchasing presents for the child;
j)keeping the child’s room clean and tidy; and
k)assisting with the child’s laundry.[11]
[11] Affidavit of Ms Musgrove 2.5.2014 at paragraph [14]
In her affidavit of 18 July 2014, the Applicant deposed that she changed her shifts at work so that she could collect the Child from school, which meant that she did not have to go to after school care. She stated that during school holiday periods the parties’ usual routine was that the Respondent would take the child to the [centre omitted] on her way to work and she would collect the Child on her way home from work.
The Applicant also deposed that for most Thursday, Friday and Saturday nights she was solely responsible for the Child’s care because the Respondent did not get home until 12:30 am.
The Respondent gives a different account in her affidavit. She asserts that, as she was the Child’s biological mother, she was the Child’s primary carer. She states that the Applicant “would on sporadic occasions assist with the care of the child”.[12]
[12] Affidavit of Ms Panshin 16.6.2014 at paragraph [16]
It is the Respondent’s case that the Applicant has had no contact with the Applicant since the parties separated. She and the child now live with her current boyfriend and another man.
The Respondent gives a detailed description of what she describes as an abusive and violent relationship with the Applicant, which commenced a few weeks after the commencement of the relationship. She claims that the Applicant was physically and mentally abusive towards her, which had been witnessed by the child. She describes the Applicant as exhibiting controlling behaviour towards her.
The Respondent deposed that the couple had three pet cats and a pet dog, which were also the targets of the Applicant’s violence. She claimed that the Applicant beat the dog and one of the cats with a stick, so severely that the cat died.
The Respondent stated:
During the relationship, the Applicant would abuse me physically. She would slap me, choke me with her hands and beat me with a stick. Most of the days, I went to work with bruise[13] on my back, my sides, arms, hands and legs. All bruises were made at different times, however, the physical abuse would occur approximately 8-10 times per month.[14]
[13] sic
[14] Affidavit of Ms Panshin 16.6.2014 at [40]
The Respondent denies that the Applicant and the Child shared a close and loving relationship. She deposes that:
61. The Child has made it clear that she wants the Applicant out of her life for good. The Child does not like her, and does not like what she did to her whilst we were living with the Applicant.
62. The Child was “over the moon” when she found out that she did not have to go back to live with the Applicant. The Child never questioned why we left, and she has never asked to see or speak with the Applicant after we left. The Child does not like the Applicant and never wants to contact with her.
63. During the relationship and since separation the Child has said things to me about the Applicant in words to the effect of, “I never want to see “[Ms Musgrove]” again”, “Why can’t[15] she just leave us alone”, “If she ever came near me I would scream and run away”.[16]
[15] sic
[16] Affidavit of Ms Panshin 16.6.2014 at [61]-[63]
The Respondent concedes that in or around 2010 the Applicant took 2 weeks off work when the Child was sick and was suffering from chicken pox, but states that this was the only time.
However, the Respondent deposes that:
(a) The Child and the Applicant did not share a close and loving relationship. The Child was scared of the Applicant and was afraid to speak her mind out. This was so because the child was of the view that if the Applicant becomes angry then she would start yelling and hitting the child. The Child said “I am scared, I have to do what she says, or she will get angry”.
(b) The Child does not wish to maintain any contact with the Applicant (whether in person, or electronically or through mail). “I hate her, [Ms Musgrove], for what she did to me and you. I want her to go away and never come back”.[17]
[17] Affidavit of Ms Panshin 16.6.2014 at [86]
The Applicant’s solicitor, Ms Baltins, submitted that the Applicant has standing as a person who has an interest in the care, welfare and development of the Child. She was involved in the Child’s care. The Applicant does not have to show that she was the child’s primary carer.
The Applicant’s solicitor referred to the decisions in KAM & MJR, Re J and M, R & M and Tran & Ngo[18] and also referred to the recent decision of Judge Neville in Harris & Calvert[19], which, she submitted, should be distinguished on the facts. Whilst in that case, as in this, the parties had been separated for approximately two years, in which time there had been no contact between the Applicant and the child, in that case the child was born in 2009 and was just over two years old when the parties separated in 2011.[20] In this case, the parties were together for a period of about seven years and separated in 2012, when the child was ten years of age. Accordingly, the fact situation is different because of the child’s age and the length of time in which the parties were in a relationship.
[18] All supra
[19] [2013] FCCA 955
[20] Ibid at [75]
Conclusions
This is a troubling case, particularly because of the evidence of the Respondent Mother in her affidavit. The parties are in agreement that they were in a live-in relationship from 2005 to 2012, during the entirely of which time the Child lives with them. Thus, the relationship lasted from the time the Child was aged three until she was aged twelve. She is now fourteen years old and, notwithstanding the fact that she has had virtually no contact with the Applicant for about two years, she would certainly have a clear memory of her.
The difficulty arises in that, according to the Respondent’s affidavit evidence, the Applicant’s involvement with the child was not nearly as significant as the Applicant claims. More seriously, though, the Respondent claims that throughout the duration of the relationship, the Applicant was controlling, violent and abusive towards her and that the child has expressed strong views about not wishing to see the Applicant ever again. If the Respondent’s evidence were to be accepted, it would be difficult to see how it would be in the Child’s best interests to spend time with the Applicant.
The best interests of the child are the paramount consideration when the Court is considering whether to make a parenting order (Family Law Act 1975, s.60CA).
The Court determines what is in a child’s best interests by considering the matters in s.60CC of the Act. A primary consideration is that expressed in s.60CC(2)(b), which is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. This is clearly a matter of concern, based on the Respondent’s evidence.
One of the additional considerations in s.60CC is that set out in s.60CC(3)(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.
It is certainly the Respondent’s evidence that the child is expressing firm views that she does not wish to have any relationship with the Applicant at all. However, the Court is not in a position to make a conclusive finding of fact on this issue, any more than it is in regard to the Respondent’s claims of violence and abuse.
The case before the Court was conducted as an interim hearing, where the parties relied on their affidavit evidence and made submissions. However, because of the nature of the hearing, the Court is not in a position to make a definitive finding of fact on the above claims. As the Full Court of the Family Court of the Family Court said in Goode & Goode[21] at [68]:
Where the court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.
[21] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
Where parties do not give oral evidence, it is obviously not possible for their affidavit evidence to be tested by cross-examination.
In my view, the Applicant has made out a prima facie case that she is a person concerned with the care, welfare or development of the child. As such, she must be held to have standing to bring the application.
However, the matters raised in the Respondent’s affidavit are matters of concern. It is important for the Court to ascertain the views of the child, and s.60CD provides that the Court may inform itself of views expressed by a child:
(a) by having regard to anything contained in a report given to the court under subsection 62G(2); or
(b) by making an order under section 68L for the child’s best interests to be independently represented by a lawyer; or
(c) subject to the applicable Rules of Court, by such other means as the court thinks appropriate.
The Applicant seeks that the Court should order that the parties and the child should participate in a Child Inclusive Child Dispute Conference with a Family Consultant under the provisions of s.11F of the Act. I am not satisfied that this would be in the Child’s best interests at this stage.
It is appropriate, for the parties themselves to participate in a Child Dispute Conference and I will order accordingly.
It is not appropriate to order a Family Report under s.62G of the Act at this stage.
However, in my view the Respondent’s allegations of family violence are such that this matter accords with the guidelines set out by the Full Court of the Family Court in Re K[22] for the appointment of a separate representative. Accordingly, I propose to order that the child’s interests should be independently represented by a lawyer.
[22] (1994) 17 Fam LR 537; FLC 92-461
It follows that no order will be made for the child to spend time with the Applicant until the Court has clear evidence of:
a)the child’s views; and
b)whether there is a need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 30 July 2014
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