P and P

[2006] FCWA 14

JURISDICTION:

FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: P and P [2006] FCWA 14

CORAM: PENNY J

HEARD: 12 DECEMBER 2006

DELIVERED: 8 FEBRUARY 2006

FILE NO/S: PT 1299 of 1996

BETWEEN: P

First Applicant/Stepfather

AND P

Second Applicant/Mother

AND

Catchwords:

F Respondent/Father

Children's issues - application for stepfather to have parental rights to the mother's children

Legislation:

Family Law Act 1975

Category: Not Reportable

Representation:

Counsel:

First Applicant : Ms P Keeley Second Applicant : Ms P Keeley Respondent : Mr M Dawson

Solicitors:

First Applicant : Clairs Keeley Second Applicant : Clairs Keeley Respondent : Dawson Davies

Case(s) referred to in judgment(s):

KAM v MJR; JIG (Intervener) (1999) FLC 92-847 at 85,929

1 The [father and mother] in these proceedings separated in

1996 and divorced on 1 January 1999. Upon their separation the

parties’ two children [K], aged 15 years, and [C], aged 12 years, resided with the mother. Following separation, the [father] has had very little contact with the children. The [father] initiated contact with the children in March 2004 but the children are hesitant in establishing a relationship with the [father] at this time. The [mother] commenced a relationship with [Mr P] in October 1999, and they married in October 2005.

2At the hearing on 12 December 2005, counsel indicated that orders could be made by consent in terms of paragraphs 2, 3, 4 and

5 of the Minute of Proposed Orders filed by the [father] on 25

November 2005, providing for the [father] contacting the children by way of mail and email.

3The only issue that remains in dispute between the parties is paragraph 1 of the orders sought by the applicants, the [mother] and her husband, [Mr P], in their Form 1 Application filed on 14

December 2004, that both the mother and [stepfather] have joint responsibility for the children’s day to day and long-term care, welfare and development.

4The [father] objects to the granting of any parental rights to [the stepfather]. The orders he seeks are set out in paragraph 1 of his Minute, which provides the children would reside with the [mother] and she would have sole responsibility for their day to day and long–term care.

The law

5Section 65E provides that, in deciding whether to make a particular parenting order in relation to children, a Court must regard the best interests of the children as the paramount consideration. In determining what is in these children’s best interests, the Court is required to consider the matters set out in

s 68F(2) of the Act.

6Section 65C provides that a parenting order in relation to a child may be applied for by ‘any other person concerned with the care, welfare or development of the child’. This section imposes a

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threshold test, to be determined upon the facts and circumstances of each case: KAM v MJR; JIG (Intervener) (1999) FLC 92-847 at

85,929 per Burr J. Given the length of time the children have lived with [the stepfather] and their close relationship, I am satisfied that [the stepfather] passes this threshold test as a ‘person concerned with the care, welfare or development of the child’.

The [father’s] position

7 The [father’s] evidence is set out in his affidavit filed 25

November 2005:

“14. I do however object to the granting of any parental rights to the Mother’s partner [Mr P].

15. Whilst it is apparent that the children see him as a father figure and indeed he has been part of the children’s lives for the last six years he is not their parent and the fact that they would appear to refer to him as their father would appear to be the result of encouragement by the Mother to do so.

16. I can see no reason by which it can be said that the children’s position can be advanced by the Mother’s partner being granted any parental rights. The only actual reason that has been advanced is to enable him to sign school permission slips and to consent to medical procedures in the event that the Mother was not available to do so. Taking into account that the Mother has had the sole care of the children for the last nine years and has not had a problem with school permission slips in the past I can not see how this would be a problem. In regard to medical treatment I remain the children [sic] father and should in any event be consulted in the event that there is a medical emergency or serious illness effecting the children. I am readily contactable, in the event that the Mother wished to contact me, and would be readily available to give consents if the situation occurred.

17. I believe that the Application by [ Mr P] to be a final effort by the Mother to remove me once and for all from the lives of the children and to basically rub salt onto the wounds by supporting [Mr P]’S application.”

The applicants’ position

8 The mother and [stepfather] filed affidavits on 11 November

2005. The mother’s evidence states:

“16. My husband [Mr P] has always supported the children in all that they do, and is very concerned for their educatio nal and emotional needs and is adamant as so am I, that they have stability through these formative years, so I support him in his application for parental rights.

17. [My husband] is a good role model for [K] and [C] and loves them unconditionally, and they both see him as their father (see counselling report).

18. Both myself and [my husband] wish to give a strong, loving and happy family unit to [K] and [C] and in the future, if they choose to change their wishes in regard to contact with [their father], we will be supportive of all their needs.”

9 [Mr P] states:

“10. I do seek parental rights in these proceedings, as although I currently look after all the children’s needs, legally I am powerless to attend to those needs if [the mother] was to become incapacitated and the children needed medical assistance.

11. On a day-to-day basis, I seek the right as guardian on various school activities, when [the mother] may be away from home with work commitments as does sometimes occur.”

The Family Report

10 The application that [Mr P] have joint responsibility for the children’s day to day and long-term care welfare and development was not clearly dealt with by the Family Report. Relevant passages in the report read:

“Both children described a very close relationship with their mother and a good relationship with their mother’s partner –

[Mr P], referred to [by his first name] by the children. There is nothing that either child would seek to change about either their mother or [the stepfather] should they be able and there is nothing that either child dislikes about the way either [the stepfather] or their mother treats them…

It would seem that [the stepfather] has been in the children’s lives for approximately five years. He considers himself to be the significant male role model for the children and as such is very attached to each of them…

[The stepfather] is of the view that children can have two father figures in their lives and would readily support this, should this be what [K and [C] wish. He was clear that he has never sought to replace their father…

When asked whether [the father] would consider giving [the mother] sole responsibility for the children’s long term care, welfare and development, [the father] said, “Because [the mother] bolted and took the love of my kids away from me, I’ll give her nothing”.”

Section 68F(2) factors/ Conclusions

11 The children’s wishes were not adequately canvassed in relation to this particular issue, except to the extent that there is nothing the children would wish to change about either their mother or [their stepfather]. I am satisfied that [the stepfather] and the children have a good relationship.

12 Counsel for the applicants submitted that the applicants had found it difficult because [the stepfather] does not have any formal responsibility for the children. [The stepfather] stated he does not have authority to sign school slips or consent to medical procedures. I am not satisfied the mother could not provide appropriately drafted authorities granting [the stepfather] authority to sign school permission slips or consent to medical procedures, even in the event of the mother’s incapacity.

13 It is, in my opinion, not merely a matter a having an existing relationship formalised. The [stepfather]’s affidavit makes it clear that he has considered his legal position were the mother to become incapacitated. Even were the order sought by the applicants granted, the mother’s incapacity would inevitably be considered a change in circumstances allowing either party to file a fresh application in the Court.

14 It is apparent the [father]’s desire to prevent [the stepfather] from assuming any parental responsibility is grounded in his perception that his role in the children’s lives, or any future role, would be reduced if there were another person responsible for the children’s welfare. The [father]’s phrase ‘final effort by the Mother to remove me once and for all’ may have been drawn partly

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from the concluding sentence in [the stepfather]’s affidavit, which states:

“I seek only what is in the best interest for [K] and [C] and respect their wishes and seek some finality for them in these proceedings.” [my emphasis]

15 In my opinion, there is no reason for ‘finality’. [The father], by consent, may have contact by way of mail and email with the children. He is evidently attempting to build some sort of relationship with the children. The significant issue in this case is the [father]’s perception that, by having another man assume parental responsibility for the children, his role in the children’s lives, now and in the future, has been diminished and his children’s perception of him will change. The children would generally not be affected by the order proposed by the mother, provided both parents could adequately cope with it. However, the prospect of the [father] reacting adversely to that decision to the emotional detriment of the children and in a way that would be conducive to further litigation cannot be disregarded. In my opinion, it is not in the best interests of the children for an order to be made in the terms proposed by the mother.

Proposed Orders

1The children [K], born August 1990 and [C], born January 1993, shall reside with the mother and she shall have sole responsibility for the children’s day-to-day and long-term care, welfare and development.

It is ordered, by consent:

2The [father] shall have liberty to communicate with the children both by way of normal mail and email and the mother shall pass on any mail or messages to the children upon receipt of the same unopened.

3The applicants be restrained and an injunction be granted restraining the applicants from denigrating the respondent in the presence of the children.

4The applicants shall notify the respondent not less than 7 days prior to any change in the children’s postal address and/or proposed re- location.

5The applicants shall notify the respondent of any email address of the children and shall notify him forthwith of any change in the same.

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6 Application otherwise dismissed.

I certify that the preceding [15] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate