FAMILY COURT OF AUSTRALIA
| NINETH & NINETH (NO. 2) | [2010] FamCA 1144 |
| FAMILY LAW – CHILDREN – Parenting Orders – With whom a child lives – Application brought by the child’s maternal great-aunt who child has lived with for most of his life – Where Aboriginality is a consideration – Where there was an absence of anthropological evidence – Whether proceedings should be adjourned to allow such evidence to be obtained – Where there was alternative evidence available to the Court – Parenting orders that can be made in relation to “non-parents” – Where cultural norms specific to the child need to be considered along with the Considerations in section 60CC – Whether the child’s biological mother, maternal grandmother or great-aunt should have parental responsibility of the child – Where there are significant cultural differences between the great-aunt and mother and grandmother – Where the grandmother was given parental responsibility of the child |
| Australian Citizenship Act 2007 (Cth) Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Aldridge v Keaton [2009] 42 FamLR 369 Donnell v Dovey (2010) 42 Fam LR 559 Goode v Goode [2006] FamCA 1346 Hardie v Capris [2010] FamCA 1046 Hort v Verran [2009] FamCAFC 214 Hudson & Minister for Immigration and Citizenship [2010] FCAFC 119 In Re CP (1997) FLC 92-741 In the Marriage of Tobin (1999) 24 Fam LR 635 Marsden v Winch(No 3) [2007] FamCA 1364 MRR v GR (2010) 263 ALR 368 Mulvany v Lane (2009) FLC 93-404 Neil v Knott (1994) 68 ALJR 509 Potts v Bims [2007] FamCA 394 |
| APPLICANT: | Ms G Nineth |
| RESPONDENT: | Ms F Nineth |
| INTERVENOR: | Ms Moldow |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Steiner |
| FILE NUMBER: | (P)LEC | 421 | of | 2008 |
| DATE DELIVERED: | 17 December 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 25 & 26 October 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Howe |
| SOLICITOR FOR THE APPLICANT: | GJ Donaghy & Co |
| THE RESPONDENT: | In person |
| INTERVENOR: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: | Mr Theobald |
| SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER | Burridge Harris & Flynn Solicitors |
Orders
IT IS ORDERED THAT
The Application by MS G NINETH filed on 18 August 2008 and the oral application of the mother be dismissed.
Pursuant to s 61D(2) of the Family Law Act 1975 (Cth) (“the Act”), “parental responsibility” as defined in the Act is, by this order, expressly taken away from the parents of the child J born … August, 2005.
Pursuant to s 61D(1) of the Act, “parental responsibility” as defined in the Act is, in respect of the said child, by this order conferred expressly upon MS MOLDOW, the child’s maternal grandmother.
Without limiting the conferral upon the said MS MOLDOW of all the duties, powers, responsibilities and authority which, by law, the parents of the said child would, but for these orders, otherwise have in relation to the said child, the said MS MOLDOW shall, by these orders, be entitled to decide solely:
(a)Where, when…
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- AGLC
- Nineth and Nineth (No. 2) [2010] FamCA 1144
- Case
- [2010] FamCA 1144
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether to remove parental responsibility from the parents and, if so, to whom it should be conferred. Specifically, the court considered the conferral of "parental responsibility" as defined in the *Family Law Act 1975* (Cth) upon the child's maternal grandmother, MS MOLDOW.
Murphy J reasoned that, pursuant to s 61D(2) of the Act, parental responsibility was expressly taken away from the parents. This decision was based on the court's assessment of the circumstances, leading to the conferral of parental responsibility upon MS MOLDOW under s 61D(1) of the Act. This conferral included the exclusive right to decide where, when, and with whom the child would live and spend time, as well as decisions regarding the child's engagement with their Aboriginal heritage.
The orders stipulated that MS G NINETH was to transfer the child into MS MOLDOW's care by 4.00 pm on 20 December 2010. However, MS MOLDOW was required to facilitate specific periods of residence with MS G NINETH between 20 December 2010 and 21 January 2011, and to facilitate agreed-upon time and communication between the child and MS G NINETH. All other extant applications were dismissed, the Independent Children's Lawyer discharged, and provisions made for the return of documents and exhibits.
Orders
Orders of the court
IT IS ORDERED THAT
1.
The Application by MS G NINETH filed on 18 August 2008 and the oral application of the mother be dismissed.
2.
Pursuant to s 61D(2) of the Family Law Act 1975 (Cth) (“the Act”), “parental responsibility” as defined in the Act is, by this order, expressly taken away from the parents of the child J born … August, 2005.
3.
Pursuant to s 61D(1) of the Act, “parental responsibility” as defined in the Act is, in respect of the said child, by this order conferred expressly upon MS MOLDOW, the child’s maternal grandmother.
4.
Without limiting the conferral upon the said MS MOLDOW of all the duties, powers, responsibilities and authority which, by law, the parents of the said child would, but for these orders, otherwise have in relation to the said child, the said MS MOLDOW shall, by these orders, be entitled to decide solely:
(a) Where, when and with whom the said child shall live;
(b) Where, when and with whom the said child shall spend time;
(c) Where, when, how and with whom the child shall engage in any activities designed to promote or enhance his understanding of his aboriginal heritage.
5.
MS G NINETH shall effect the child’s transfer into the care of the grandmother MS MOLDOW by not later than 4.00pm on 20 December 2010.
6.
Notwithstanding the provisions of paragraphs 3 and 4 of these Orders, the said MS MOLDOW shall:
(a) Between 20 December 2010 and 21 January 2011, facilitate the said child residing with MS G NINETH:
(i) From 9.00am on 26 December until 5.00pm on 27th December;
(ii) Between those hours on 1 and 2 January; 6 and 7 January; 12 and 13 January; and 18 and 19 January 2011.
(b) Facilitate time and communication between the child and G NINETH at all such times as might be agreed between her and MS MOLDOW and as the said child might reasonably request.
IT IS FURTHER ORDERED THAT
7.
All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.
8.
Following the expiration of the appeal period, all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
9.
The Independent Children's Lawyer be discharged.
10.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
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
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