Parker and Randolph

[2007] FamCA 472

FAMILY COURT OF AUSTRALIA

PARKER & RANDOLPH [2007] FamCA 472

FAMILY LAW - CHILDREN - With whom a child shall live - Mother deceased, testamentary guardians appointed - Father's application for child to live with him

APPLICANTS: MR PARKER and
MS PARKER

RESPONDENT: MR RANDOLPH

INDEPENDENT CHILDREN’S LAWYER: MR SEYMOUR

FILE NUMBER: ADF 1583 of 2005

DATE DELIVERED: 10 May 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Burr J

HEARING DATE: 10 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANTS: No appearance

SOLICITOR FOR THE APPLICANT: No appearance

COUNSEL FOR THE RESPONDENT: Ms Fuda-Duncliffe

SOLICITOR FOR THE RESPONDENT: Denise M. Rieniets and Associates

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the ex tempore reasons of the Honourable Justice Burr will for all publication and reporting purposes be referred to as parker and randolph

Orders

1. I make orders, with the support of the independent children's lawyer, in terms of the minutes this day signed by me.

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1583 of 2005

MR PARKER and MS PARKER

Applicants

And

MR RANDOLPH

Respondent

EX TEMPORE REASONS

1. I have before me today the father's application for an order that his daughter live with him.  The matter has had a relatively long, complex and in many respects sad history.  The mother of the child, Ms T passed away in October 2005 when the child was only some three and a half years of age.  The mother and the father had separated in February of 2004.

2. The mother appointed testamentary guardians and they instituted proceedings in the Family Court seeking orders in respect of the child.  An independent children's lawyer was appointed and some orders were made in November of 2005 that the child spend alternate weekends with the father.

3. There was then a relatively long history of the testamentary guardians declining to obey the orders of the court and withholding the father's time with the child.  That continued for quite a lengthy period of time, ultimately culminating in the testamentary guardians being found guilty of breaches of the orders of the court and, on 8 June 2006, being placed on good behaviour bonds for 12 months with a surety of $200 and an order that they pay costs of $1500.

4. From 18 June 2006, pursuant to orders of this court the child has lived with the father and was to spend one weekend per month with the testamentary guardians.  The matter was then listed for trial, but on 30 March 2007, both testamentary guardians filed notices of discontinuance in this court.

5. There has been some very valuable assistance provided to the court by Ms L.  In her report of 5 April 2007, she has recommended that the child live with the father and that the testamentary guardians have nothing to do with the child given their apparent complete inability to support the relationship between the child and her father.

6. I have had the opportunity of reading relevant documents on the file in dealing with this matter. In making my determination, I am obliged to consider a number of provisions of the Family Law Act, the principal one being section 60CA which requires me to consider the child's best interests as the paramount consideration before making any orders.

7. In making that determination, I am guided to section 60CC which is divided into primary considerations and additional considerations.  In terms of the primary considerations, it is of course not possible for the child to have any relationship with her deceased mother, but she does enjoy and should continue to enjoy a meaningful relationship with her father.

8. I am also obliged, as the other primary consideration, to consider the need to protect the child from any physical or psychological harm.  In this instance the major psychological harm to which the child might be exposed would be in terms of the testamentary guardians' inability to support her relationship with her father.  In those circumstances, it would appear entirely proper to abide Ms L's recommendation that there be no orders made in favour of the testamentary guardians at this point.

9. The additional considerations are many and not all are relevant to the determination of this matter.  The first one requires me to consider any views expressed by the child, and it is clear that she indicated to Ms L that she was frightened that the testamentary guardians would "keep her".  The strength of the relationship between the child and her father also supports the fact that the child would clearly be of the view that she ought to live with her father.

10. I am obliged under subsection (b) to consider the nature of the relationship the child enjoys with each of her parents and any other persons.  I repeat that the child appears to enjoy a very closely bonded relationship with her father and she presents as a bright and happy little girl living in those circumstances with her father.

11. The relationship the child has with the testamentary guardians is troubled.  It is troubled because of the actions of the testamentary guardians themselves.  Their actions have not been child-focused.

12. Subsection (c) requires me to consider the willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between the child and the other parent.  That clearly is not a relevant matter given the death of the child's mother, but in terms of the child's relationship with the testamentary guardians, I repeat that they have not demonstrated that willingness or ability.

13. It is not necessary for me to consider in any detail subparagraph (d), save that as the father is the child's only surviving parent, it is absolutely essential that there be no change in her present living circumstances and she continue to enjoy the close bond she has with her father.  No additional matters that I have not already canvassed emerged for my consideration pursuant to subsections (e), (f) and (g).

14. Subsection (h) is clearly relevant, in that I am obliged to consider if the child is an Aboriginal child.  The child is indeed of Aboriginal heritage, as is her father.  The father has taken entirely appropriate action to maintain the child's cultural connection with her Aboriginal heritage.  She was previously enrolled at the P Preschool at L where her indigenous culture was maintained.  It is also maintained by her father himself.  She now attends the S Primary School.

15. Subsection (i) requires me to consider the attitude to the child and to the responsibilities of parenthood demonstrated by her father.  His actions have been nothing but focused on the best for the child.  He fully supports her financially.  He has appropriate rental accommodation in L and the child has her own room.

16. A further indication of his attitude to the child has been his relentless pursuit of appropriate orders for the child and his relentless pursuit of a relationship with her, and to be her primary carer.  Despite the many obstacles that the testamentary guardians have placed in his path, he has continued, and importantly, too, he has adhered, to orders of this court and arrangements made for the child previously to spend time with the testamentary guardians despite their regular defiance of the court's orders.  He has supported her schooling and extra-curricula activities and her medical needs.

17. It is not necessary for me to consider any other matters under subsections (j), (k), (l) or (m).  Subsection (4) requires me to consider whether or not in the exercise of parental responsibility the relevant parties have engaged in decision‑making in respect of the child.  Clearly the father's conduct in that regard has been excellent, but the conduct of the testamentary guardians not so.

18. I am obliged then to move to section 61DA of the act, given that I am making parenting orders in these proceedings.  In my view this is a clear example of a case when the presumption of equal shared parental responsibility between in these circumstances the father and the testamentary guardians, ought to be rebutted and set aside.

19. Even though the act in that section refers to the child's parents, the testamentary guardians clearly took the view that they stood in place of the child's parents when making their application to the court.  In any event, in my view the circumstances of the matter suggest that the presumption, if it exists, for the testamentary guardians, ought to be rebutted.

20. There are no other relevant matters for my consideration pursuant to the legislation and I therefore deem it appropriate to make the orders sought by the father.

I certify that the preceding twenty (20) paragraphs are a true copy of the ex tempore reasons of the Honourable Justice Burr

Associate: 

Date: