Nayak - [2011] FamCA 491

FAMILY COURT OF AUSTRALIA

NAYAK

[2011] FamCA 491

FAMILY LAW – CHILDREN – Parental responsibility

Family Law Act 1975 (Cth)

APPLICANT:

Mr R Nayak

FILE NUMBER:

MLC

5068

2011

DATE DELIVERED:

16 June 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

16 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Poulton

SOLICITOR FOR THE APPLICANT:

GSM Lawyers

Orders

That the applicant have leave to proceed without notice to any other person.
That Mr R Nayak have the sole parental responsibility for the children E born … August 1994 and N born … March 2000 only in respect of the following matters:
(a)    to make decisions relating to the children’s medical treatment and sign any related documentation;
(b)    to make decisions relating to the children’s international travel including signing any application for passport or visa and related documentation;
(c)    to make decisions and sign any necessary documentation relating to the children’s education;
(d)    to sign any document relating to the release of superannuation benefits and student pensions arising out of the entitlements they have concerning the death of their father Mr S Nayak; and
(e)    to access rights to public services and public-funded benefits generally accessed on behalf of minors by a parent or other legal guardian.
That all proceedings be otherwise dismissed and removed from the list of cases awaiting a hearing.
That the reasons for judgment this day be transcribed and be placed upon the court file.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5068 of 2011

Mr R Nayak

Applicant

REASONS FOR JUDGMENT

This is an application filed on 9 June 2011 seeking parenting orders for two children: E, who was born in August 1994 and is, therefore, 16 years of age; and N, who was born in March 2000 and is, therefore, 11 years of age. Each of those children is a citizen of Australia and, as I understand the evidence, both are currently in Australia where they are on school holidays from their boarding school in India. The unusual feature of this application is that both parents of these two children are deceased. The children form part of a family constellation that might be described as two different families. They have siblings from their father’s first relationship, and the applicant is the oldest of those three siblings.
They have two other siblings from the relationship between their father and their mother. Their two older siblings are now adults. The mother of these two children died in 2008 and their father died in 2008. The children appear, on the evidence of Mr R Nayak, who is the applicant, to have been gathered together and eventually taken back to India where they were originally living in what I would have described as a village in property owned by their father, but in less than satisfactory circumstances. The house was described as being at lock-up stage and the children were living in one room. The oldest of the four children is Ms Y, and she is now 20 years of age and she has married and has a child. She has moved away from this sibling group and has indicated in writing that she approves of the concept of her half-brother, Mr R Nayak, being the person having parental responsibility for them.
By a convoluted process, the executor of the deceased father’s estate gathered in the children in India and put them in a boarding school, but as logic dictates, when the boarding school closed for the holidays, the children had two choices: they could either wander back to the village where they were at a loose end or come to Australia for that period and be cared for.
The evidence seems to show that prior to being put into the international boarding school in India, problems were looming. There is an indication of distinct unhappiness amongst the children, problems of bullying, truancy and trouble making. The children were being supported, but clearly not cared for in a responsible sense. Having put them into the international boarding school where their fees are being funded from the father’s estate, things started to look up immediately.
The reports that I have read of the children’s progress indicate that things are going well. The difficulty, therefore, is what to do in the future. The children have no mother or father, an adult sister who has her own responsibilities and no desire to be involved in that responsible role and, therefore, I am left with Mr R Nayak.
Mr R Nayak’s affidavit is comprehensive and shows that he has not only the time, but the desire to ensure that these children are well cared for whilst they complete their education in India. The financial support of these children comes from their father’s estate, and I am informed that the income from the estate will support them until the youngest child attains what their father thought was the age of majority.
Mr R Nayak is 45 years of age and has three children of his own for whom he cares. He is a scientist by background and holds a higher degree qualification. He currently works on an agricultural property that he owns in Victoria, along with his wife. All of the indications are that he is a responsible and willing person to take on the role that he desires. In discussion this morning with the legal practitioner for Mr R Nayak, it is clear that he does not want all of the responsibilities that a parent would normally undertake, as set out in the Family Law Act. There are some sensitive reasons for that, having regard to a number of matters that I do not need to deal with here. At the moment it does not appear that it is necessary for me to worry about the extent of the parental responsibility role.
Mr R Nayak has clearly set out the five areas that he is prepared to undertake which include medical treatment, international travel, education, protecting the entitlements that the children have as a result of being the beneficiaries of their father’s membership of a superannuation fund, and obviously the capacity to access various public services and benefits that they may have, both in India and in Australia.
Section 65C of the Family Law Act 1975 (Cth) (“the Act”) sets out that any person who has an interest in the welfare of children can make an application for a parenting order and section 64C sets out that a court can make a parenting order if it considers that it is proper to do so.
Section 61D provides that a parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers duties, powers and responsibilities or authority in relation to the children.
In this case I am not asked to make a comprehensive parenting responsibility order, but one specifically confined to the five matters to which I have referred.
I am satisfied that it is in the best interests of these children to have someone take responsibility who can guide their welfare in a number of areas. Clearly, for most of the time, these children will be cared for by the boarding school in India, funded by the father’s estate, and the responsibility for making those decisions will lie with Mr R Nayak.
It seems, in the circumstances, that this is a lot better than what these children were facing when they were left in a partly-completed house in a village in India and left to their own devices.
The Act provides that I can only make a parenting order if I am satisfied that it is in the best interests of the children to do so, and in this case I am satisfied that the children are well cared for by the school and by Mr R Nayak when he has the physical care of them and, therefore, the only issue is the issue of parental responsibility. It is in their best interests that Mr R Nayak have those roles that he wishes to fulfil.
Accordingly, I will make orders in terms of the proposed order setting out the five specific areas that Mr R Nayak has agreed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 16 June 2011.

Associate:

Date: 28 June 2011