Nineth and Nineth (No. 2)

Case [2010] FamCA 1144


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

  1. The Application by MS G NINETH filed on 18 August 2008 and the oral application of the mother be dismissed.

  1. 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.

  1. 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.

  1. 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

This matter concerned an application by MS G NINETH and an oral application by the child J's mother, which were dismissed by Murphy J. The dispute centred on the parental responsibility for the child, J, born in August 2005.

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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