Norrie & Norrie & Anor
[2015] FCCA 311
•9 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NORRIE & NORRIE & ANOR | [2015] FCCA 311 |
| Catchwords: PRACTICE AND PROCEDURE – Jurisdiction – whether applicant is a person concerned with the care, welfare or development of the child – where father lives in Vietnam – where mother has not attended court – 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.60B, 60CA, 61DA, 64B, 64C, 65C |
| Cases cited: KAM & MJR [1998] FamCA 1896; (1998) 24 Fam LR 656; (1999) FLC 92-847 Musgrove & Panshin [2014] FCCA 1680 R & M [2002] FMCAfam 279 Tran & Ngo [2012] FMCAfam 1352 |
| Applicant: | MS L NORRIE |
| First Respondent: | MS T NORRIE |
| Second Respondent: | MR THOM |
| File Number: | SYC 7073 of 2014 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 9 February 2015 |
| Date of Last Submission: | 9 February 2015 |
| Delivered at: | Sydney |
| Delivered on: | 9 February 2015 |
REPRESENTATION
| Solicitor for the Applicant: | Ms Ramjas |
| Solicitors for the Applicant: | Legal Aid NSW |
| First Respondent: | No appearance |
| Second Respondent: | No appearance |
ORDERS
UNTIL FURTHER ORDER
Leave to proceed ex parte.
Service on the Second Respondent dispensed with.
It is declared that the Applicant is a person concerned with the care, welfare or development of the child [X] born [omitted] 2000.
The Applicant Ms Norrie is to have sole parental responsibility for the child [X] born [omitted] 2000, including all long-term matters as the child’s schooling, medical and dental decisions and where the child is to live.
The Respondent Mother is to file and serve a Response to the Application and an affidavit setting out the facts on which she relies within 28 days.
The Applicant is directed to forward a sealed copy of these Orders to the Respondent Mother by ordinary pre-paid post to the Mother’s last-known address within seven (7) days.
The Application is listed for an undefended hearing at 12:00 noon on Monday 6 July 2015. The Respondent Mother is advised that if she does not attend Court on the next occasion then Orders may be made in her absence.
IT IS NOTED that publication of this judgment under the pseudonym Norrie & Norrie & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 7073 of 2014
| MS L NORRIE |
Applicant
And
| MS T NORRIE |
First Respondent
| MR THOM |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an unusual Application, as it is brought by the adult sister of a boy called [X] who is 14 years old. [X] was born on [omitted] 2000. He is in fact the Applicant’s half-brother as they have the same mother. [X] lives with his Godmother, a lady aged 63 who does not speak any English.
The Respondents to the Application are the Applicant and the child’s mother and the child’s father. The Applicant’s solicitor has filed an affidavit of service dated 5th December 2014 showing that the First Respondent, the Mother, was served on 3rd December. An Acknowledgement of Service signed by the Mother is annexed to the affidavit.
The Second Respondent, the child’s father, has not been served. The Applicant believes that he is still living in Vietnam. She deposed that she and her mother went to Vietnam for a holiday and stayed with relatives. The Mother became pregnant when she was in Vietnam and subsequently returned to Australia, where the child [X] was born. The Mother recorded the name of the Father on the child’s birth certificate, a copy of which is annexed to the Applicant’s affidavit.
The Applicant gave evidence that she had never heard her mother talk about her brother’s father and she has no way of finding out where he lives.
Noting that the Father has played no role in the boy’s life at all, I have decided to dispense with the requirement for service upon him.
Background
The Applicant gave evidence that her mother’s behaviour became unpredictable in 2013 and she was hospitalised on 21st May 2013. A copy of the Mother’s Discharge Summary from [omitted] Hospital is annexed to the Applicant’s affidavit. She displayed symptoms of a mental illness.
The Applicant is a university student, now in her final year. About a month before her mother was hospitalised, the Applicant moved out of home and moved in to live with her aunt. The brother remained living with his mother.
Shortly before the Mother was hospitalised in May 2013, the child’s Godmother took the child to live with her. The Applicant deposed that she had looked after her brother every day until he was three years old and they are very close.
After the Mother was hospitalised, the Applicant and her brother went to live with their mother’s cousins, but the child [X] decided after about two weeks to return to live with his Godmother. He remains living with her and the Applicant deposed that she looks after him well.
The Applicant and [X] have not had a lot to do with their mother since her hospitalisation.
Evidence and Submission
The Applicant gave oral evidence and relied on her affidavit of 10th November 2014. She stated that she wishes to have the authority to make decisions about where her brother lives and obtain medical or dental treatment for him. She also wishes to make arrangements for his schooling.
The Applicant has no criticism of [X]’s Godmother’s care of him, but deposes that she does not speak English and has expressed a reluctance to involve herself in paperwork. The Applicant deposed:
I intend to consult with [X] and his Godmother about decisions that affect him if I am granted sole Parental Responsibility, but I do not seek for that responsibility to be shared with [X]’s Godmother as she has very little understanding of English and she has always left [X]’s paperwork and circumstances for me to explain to service providers.
[X]’s Godmother does not speak, read or write English, so my brother will translate his school notices and information for her, or ask me to help when forms need to be filled out for school or other events.[1]
[1] Affidavit of Ms L Norrie 11.11.2014 at paragraphs [23]-[24]
The Applicant further stated that:
I think that she does not realise how important it is for [X] to have someone legally able to sign and authorise official decisions about his future until he turns 18, and she has trusted me in the past to sort out any paperwork that has been needed.[2]
[2] Ibid at [25]
The Applicant deposed that she tried to arrange a mediation with her mother to negotiate an agreement so that she would be able to make decisions for her brother, but the matter was deemed unsuitable for mediation.
It is the Applicant’s aim to find accommodation where she can live with her brother, but her funds are limited at present.
Applications for parenting orders by persons other than a parent or grandparent
The Applicant is not a biological parent or grandparent of the child. She is his half-sister. 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 (Cth) provides that a parenting order in relation to a child may be made in favour of the parent of a child or some other person. Section 64B(2) provides that a parenting order may deal with the allocation of parental responsibility for a child.
Section 65C of the Act sets out the categories of persons who may apply for a parenting order, including, at paragraph (c):
any other person concerned with the care, welfare or development of the child.
In order for her Application to succeed, the Applicant must demonstrate that she is a person concerned with the care, welfare or development of the child.
I have had occasion to consider this question in a number of earlier decisions, including Tran & Ngo[3] and Musgrove & Panshin.[4]
[3] [2012] FMCAfam 1352
[4] [2014] FCCA 1680
The description of a “threshold test” in s.65C(c) was used by Burr J of the Family Court in KAM & MJR[5] at 667:
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] [1998] FamCA 1896; (1998) 24 Fam LR 656; (1999) FLC 92-847
In R & M[6] Driver FM (now Judge Driver) dismissed an application by a friend of the recently-deceased father of the child concerned, finding that the applicant had no prior involvement with the care, welfare or development of the child and therefore had no standing to bring the application.
[6] [2002] FMCAfam 279
Conclusions
In this case, the Applicant is the half-sister of the child and has known him all his life. She has given evidence that she has already acted to assist the child’s Godmother in dealing with various aspects of the child’s life. She understands the need for someone to have the authority to make decisions regarding the long-term issues concerning the child, including matters relating to his health, residence and education.
The Applicant presented as a very intelligent and resourceful young woman who has a keen appreciation of the need for a person to have the authority to exercise parental responsibility for her brother. In my view she clearly meets the threshold test as a person who is concerned with the care, welfare or development of the child. I find that the applicant has standing to apply for a parenting order.
There is evidence that the child’s father is still in Vietnam and has never played any role in the child’s life. The mother appears to be incapacitated by mental illness and unable to exercise any parental responsibility for her son.
I am satisfied that there is an immediate need for a person to be in a position to exercise parental responsibility for the child [X], and, after hearing the Applicant’s evidence in the witness box, I am also satisfied that it is in the child’s best interests for his half-sister to exercise sole parental responsibility for him until further order.
I will give the Mother an opportunity to file and serve a Response and an affidavit setting out any facts on which she chooses to rely, and I will allow a period of 28 days for her to do so. The Application will be adjourned and, if the Mother does not file any documents or does not attend court on the next occasion, I will consider making final orders.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 9 February 2015
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