Ngo and Anor and Ngo and Ors

[2015] FCCA 3630

FEDERAL CIRCUIT COURT OF AUSTRALIA

NGO & ANOR & NGO & ORS [2015] FCCA 3630

Catchwords:
FAMILY LAW – Final consent parenting orders – Orders sought are in the best interests of the child.

Legislation:

Family Law Act 1975, s.60CC

First Applicant: MR NGO

Second Applicant: MS NGO

First Respondent: MR TRIEU

Second Respondent: MS NGO

Third Respondent: MS VAN

File Number: PAC 4905 of 2015

Judgment of: Judge Newbrun

Hearing date: 15 December 2015

Date of Last Submission: 15 December 2015

Delivered at: Parramatta

Delivered on: 15 December 2015

REPRESENTATION

Counsel for the Applicants: Mr Heazlewood

Solicitors for the Applicants: QT Lawyers & Associates

First Respondent: No appearance

Second Respondent: No appearance

Third Respondent: No appearance

ORDERS

1. Any rule or regulation which requires service, other than in the manner effected in respect of these proceedings, being by post or service by a party upon another party, be dispensed with, to the extent that the Court is satisfied that these proceedings have come to the notice of the Respondents.

2. These Orders concern the child X, also known as X, born (omitted) 2005.

3. That the Applicants have equal shared parental responsibility of the child X.

4. That X live with the Applicants.

5. That X spend time with the Respondents as may be agreed upon by the parties.

6. That the requirements of s65F or s65G for family counselling or a conference are dispensed with.

7. That X be permitted to travel internationally.

8. That the Applicants be permitted to make application for X to become an Australian Citizen and/or as appropriate that an Australian passport issue to X.

9. That the Applicants do all things which may be necessary to effect a change of X's name so that he is henceforth known by the surname Ngo.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 4905 of 2015

MR NGO

First Applicant

MS NGO

Second Applicant

And

MR TRIEU

First Respondent

MS NGO

Second Respondent

MS VAN

Third Respondent

REASONS FOR JUDGMENT

1. In this matter of Ngo & Trieu & Ngo & Van, Mr Heazlewood of Counsel appears for the Applicants seeking final orders as sought in the Initiating Application filed by the Applicants on 7 October 2015.  There is no appearance today by the Respondents. However, the Court is satisfied that they have been relevantly informed of the proceedings and the documents to be relied upon in the proceedings.

2. The final orders sought by the Applicants, who are the aunt and uncle of the child, are in respect of the child known as X born (omitted) 2005, include orders that they have equal shared parental responsibility, that the child live with them, and spend time with the Respondents as may be agreed upon by the parties.

3. The child has, for a substantial period of his life, been reared by the Applicants, although there was earlier involvement in terms of the care of the child by the maternal grandmother. The Respondent parents reside in Vietnam. As the Court said previously, they are aware of these proceedings. They consent to the orders sought by the Applicants.

4. The Applicants’ Counsel, Mr Heazlewood, has prepared a very comprehensive Case Outline document, dated 14 December 2015. On the application made today by the Applicants, the final orders are as sought by them in their Initiating Application, and the Case Outline of the Applicants refers to the documents relied upon. 

5. The Court adopts the detailed chronology set out on pages 14 and 15 of the Case Outline. The Court is satisfied, as stated earlier, that these proceedings have come to the attention of the Respondents and that it is in the interests of justice that strict compliance with the rules of Court relating to service of the proceedings upon them be dispensed with, and that, in the circumstances, the manner in which service has, in fact, been effected upon the Respondents, be deemed effective service.

6. The Court is obliged to consider whether the proposed final orders sought by the Applicants are in the best interests of the child. The Court has considered the relevant factors under section 60CC of the Family Law Act 1975 (Cth) (“the Act”), which are set out in the Applicants’ Case Outline. The Court adopts the commentary of the Applicants, as set out in the Case Outline, in relation to all relevant primary and additional considerations under section 60CC of the Act.

7. The Court refers to page 6 of the Case Outline, and the reference to the likely effect of any changes in the child’s circumstances. The Court makes a finding that, indeed, the child has a close and loving relationship in the household at (omitted), and there is a wider but still close contact with the remainder of his family, given that he is apparently still the only grandchild in the family.

8. The Court, evaluating all the relevant primary and additional considerations as commented upon and set out in the Case Outline, is of the view that, in all the circumstances, and considering all relevant factors under section 60CC of the Act, it is in the best interests of the child to make final orders as sought by the Applicants in their Initiating Application filed 7 October 2015.

9. As to parental responsibility, the Court accepts the submission at page 9 of the Case Outline that the Respondent parents of the child did engage in child abuse by neglecting the child as an infant, newborn. In those circumstances, the Court finds that the presumption of equal shared parental responsibility does not apply. The Court finds, based upon all the evidence before it, that it is in the child’s best interests that the Applicants have equal shared parental responsibility for the child. 

10. Accordingly, the Court will make the following orders and directions; being in the best interests of the child:

    a)Order that any rule or regulation which requires service, other than in a manner effected in respect of these proceedings, being by post or service by a party upon another party, be dispensed with to the extent that the Court is satisfied that these proceedings have come to the notice of the Respondents; and

    b)Orders 1, 2, 4, 5, 6, 7, 8 and 9 of the final orders sought by the Applicants in their Initiating Application filed 7 October 2015.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date:         20 October 2016