Parsons and the Estate of the Late Ms Cao & Anor

[2017] FamCA 545

FAMILY COURT OF AUSTRALIA

PARSONS & THE ESTATE OF THE LATE MS CAO AND ANOR [2017] FamCA 545

FAMILY LAW – CHILDREN – PARENTING - where after separation, interim orders were made for the husband and wife to have equal shared parental responsibility, for the children to live with the wife and for the husband to have limited contact-where the wife dies. Consideration of s 65K(3) where it conflicts in a practical sense with the husband being the sole person responsible for decisions about the children-where there is no state intervention-where there was an intervenor who failed to file material and did not attend the hearing-where the Independent Children’s Lawyer support the husband-where an earlier s 11F report identified that the wife who knew she was terminally ill supported the children living with the husband-where the court should still consider whether the orders should be made

FAMILY LAW – PROPERTY - where the wife’s estate had not had a grant of probate but solicitors endeavouring to obtain it-where the solicitors indicated that the children were the beneficiaries of the wife’s will and were willing to negotiate a resolution.

Family Law Act 1975 (Cth)

APPLICANT: Mr Parsons

RESPONDENT: The Estate of the Late Ms Cao

INTERVENOR: Ms Parsons

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 10646 of 2016

DATE DELIVERED: 28 July 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 27 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dellidis

SOLICITOR FOR THE APPLICANT: Mills Oakley Lawyers

COUNSEL FOR THE RESPONDENT: Mr Wraith

SOLICITOR FOR THE RESPONDENT: Ryan Carlisle Thomas

THE INTERVENOR: No Appearance

THE INTERVENOR: PO Box …
Suburb B NSW …

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Eidelson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: McKean Park Lawyers

Orders

1. That all outstanding applications for final orders are adjourned to 9 October 2017 as a two day matters.

2. By 4 pm on 11 August 2017 the applicant file and serve upon all other parties an amended application setting out with precision the orders to be sought;

3. By 4 pm on 25 August 2017 the applicant file and serve upon all other parties an amended application setting out with precision the orders to be sought;

   (a)     all affidavits of evidence to be relied upon; and

   (b)     a financial statement.

4. The applicant pay all required court fees by 4 pm on 25 August 2017

5. That the Estate of the Late Ms Cao file and serve an amended response and such affidavit material upon which it is intended to rely as soon as practicable

6. That the application in a case filed 29 June 2017 is otherwise dismissed.

7. That of the minutes of orders attached to the parenting orders made on 16 November 2016, paragraphs 1, 2, 3, 4, 5, 7 and 9 are discharged.

8. Of the orders made on 7 March 2017, paragraphs 4, 5, 6, 7 and 17 are discharged.

9. That until further order, the husband have sole parental responsibility for the children C born … 2014; D born … 2007; and E born … 2010.

10. That until further order, the children live with the husband.

11. That the husband be at liberty to produce a copy of these orders to such persons as is necessary to establish his responsibility for the care and control of the children.

12. That Ms Parsons having not filed any application for final relief, the order of the court permitting her to intervene is discharged.

13. That 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.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Parsons & The Estate of the Late Ms Cao and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10646  of 2016

Mr Parsons

Applicant

And

The Estate of the Late Ms Cao

Respondent

And

Ms Parsons
Intervener

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. These reasons arise out of an application before the court on 27 July 2017 consequent upon the death of Ms Cao (“the wife”) in 2017.  The applicant in the proceedings is Mr Parsons (“the husband”).

2. The substantive proceedings involve a dispute about the parenting of C aged 12 years, D aged 10 years and E aged seven years.

3. For the purposes of these proceedings, all that needs to be said about the background is that the parties lived together from 1992 until 26 October 2015 and they married in 2001.

4. The separation in October 2015 was, on any view, acrimonious.  It culminated in an intervention order being made by the Melbourne Magistrates’ Court on 24 June 2016 which named the wife and the three children as affected family members.  The husband consented to that order without admission as to the correctness or otherwise of the allegations in the wife’s complaint.

5. Proceedings in this court commenced on 2 November 2016. Numerous orders were sought by the husband.  In respect of parenting, he sought an order for equal shared parental responsibility; yet as an indication of the nature of the relationship between the parties, he then sought orders about letting schools know what was in court orders, being permitted to attend school activities and that he be able to obtain information about education, healthcare and extra-curricular activities of his children.  Those sorts of orders should only have been necessary if there was a problem in respect of communication between the parties such that they needed to set out all of the things that common sense dictates parents normally do. One would then wonder why they had agreed that, by virtue of the order for equal shared parental responsibility, they would consult with one another and agree about major long term issues of responsibility concerning their children when their relationship was said to be so bad. 

6. The wife filed a response through solicitors on 15 November 2016 and whilst she sought a number of orders, the most important for the purposes of the proceedings now before me was that she agreed that the parties “share the parental responsibility for the children”.  Although that does not sit comfortably with the language of the Family Law Act 1974 (Cth) (“the Act”), I have presumed that she meant equal shared parental responsibility. 

7. The same application of the husband also sought property orders that were undefined. He asked to be excused from particularising his claim until the wife provided financial disclosure.  For her part, the wife set out her orders with particularity.  There could be no dispute here that the parties had modest assets and the drafting imprecision added to the confusion.

8. There is no doubt that the wife had been seriously ill for some time and that too did not assist the parties in coming to terms with their dispute.  It would seem uncontroversial that up until the time of the separation, the husband had been the primary carer of the children.  In addition to the wife’s physical health problems, the husband too had a mental illness which was diagnosed by psychiatrist Dr F as chronic major depressive disorder with anxiety.

9. On 16 November 2016 Registrar Field made orders by consent of the parties.  The significance of those orders lies in:

   (a)an agreement that the parties have equal shared parental responsibility for the children;

   (b)the children live with the wife;

   (c)the children spend time with the husband under supervision on each Monday for three hours, each alternate Saturday for five hours under supervision and otherwise as agreed in writing.

10. A litany of affidavit material on the court file indicates that the orders just mentioned did not settle or calm the dispute.  Whether or not it was the wife’s continuing illness or the husband’s mental health, I am unable to say but there have been allegations on both sides of breaches of those orders.  All of that no longer matters save for the question of whether the orders that I have now made on 27 July 2017 are in the best interests of the three children.

11. On 7 March 2017, by an application in a case, Ms Parsons, the husband’s estranged sister sought leave to intervene. Her application sought a variety of parenting orders including that the children continue to live with their mother for so long as her health allowed.  She proposed that contact between the husband and the children be otherwise supervised at a child contact centre and “subject to the children’s wishes”.  That application was listed before the Senior Registrar on 7 March 2017 and the intervener attended in person.  She was granted leave to intervene.  The Senior Registrar listed the application in a case before himself that day and at [21] of his orders, then dismissed all extant interim parenting applications.  The Senior Registrar was obviously conscious of the fact that Ms Parsons had no application for substantive relief before the court.  He made an order [16] that she file and serve a response by no later than 24 April 2017.  No such document was filed. 

12. Orders of the court since that 7 March hearing have included Ms Parsons as the “second respondent paternal aunt”.  Her application in a case having been dismissed and she not having filed any application for substantive relief, there is no longer a justification for her being a party to the proceedings as an intervener. 

13. On the morning of 27 July 2017, a text message was received from Ms Parsons by one of the other practitioners to say that she was running late for the proceedings.  to the hearing proceeded on the basis that there was no substantive relief sought and no live application by Ms Parsons and therefore she would not have had standing.

14. At the hearing on 7 March 2017, various orders were made relating to the children including for the husband to have overnight time with them and, from the June 2017 school holidays, half of all of the relevant time and during the long summer holidays, on a week about basis.  That order was imposed by the court rather than it being the consent of the parties and as such, this court must infer that it was based on the principle of it being in the best interests of the children.  No review of that decision occurred.

15. In the March 2017 orders, a family consultant was asked to conduct an issues assessment with the children.  Despite her illness, the wife participated and made clear that she wanted the children to live with the husband in the event of her demise.  The Independent Children’s Lawyer has been cognisant of that stance. 

16. Most significant of all is the fact that since November 2016, the consensual arrangement for equal shared parental responsibility has not been altered.  It was not altered by the parties nor did the court consider it inappropriate.

17. The death of the wife had obvious sad ramifications for these children but the unchallenged evidence is that the husband handled it sensitively with them.

18. The husband issued an application in a case returnable in the Judicial Duty List in between the death of the wife and her funeral.  Various counsel appeared and in what I described at the time as an unedifying experience, squabbling occurred over what should happen to the children until the court had time to consider all parties’ positions.  Thankfully, the dust has now settled.

19. At the hearing on 27 July 2017, Ms Parsons did not attend and even had she done so, absent some very good explanation, she would not have had standing bearing in mind the orders that I have described.

20. Counsel for the wife’s estate indicated that insofar as he had any position, it only related to the financial matters and the estate did not wish to be heard in respect of the parenting matter. 

21. The husband’s position was that he wanted parenting orders that the children live with him and in that regard, his position was supported by the Independent Children’s Lawyer. 

22. Section 60CC(5) provides that if the court is considering an order offered with the consent of all parties to the proceedings, it may, but is not required to, have regard to all of the matters set out in s 60CC(2) or (3).  The only parties to these proceedings in reality were the wife and the husband.  Ms Parsons’s position was curious, but in my view, she had had ample opportunity to participate in the proceedings and failed to do so.  Thus, this court could ignore s 60CC(2) and (3); but having regard to the history of it, I think it is important that the court convey that it is not simply rubber-stamping these proceedings because of the death of the wife. 

23. Section 65K provides that if a parenting order is in force that provides that a child is to live with one of the parents and that parent dies, if the parenting order does not provide what is to happen on that parent’s death, s 65K(2) provides the answer:

    The surviving parent cannot require the child to live with him or her.

24. Section 65K(3) however provides that the surviving parent may apply for a parenting order that deals with where the children are to live.

25. The November 2016 orders made no reference to the potential death of the wife.  The order was not changed thereafter despite hearings in 2017.  At least at some time during 2017, the wife’s death must have been contemplated.  No move was made to alter the orders consistent with s 65K(1) to provide for what was to happen thereafter.

26. One of the unusual features is that the November 2016 orders provided for parental responsibility to be equal but that does not mean that it is shared.  The Act is silent on the meaning of that phrase.  As such, each of the parents has the responsibility for making decisions about the major long term issues relating to the children.  Major long term issues is defined in s 4 of the Act to mean issues about the care, welfare and development of a child of a long term nature.  That must include the circumstances under which children are living.  Here was a situation in which the husband had no right to simply collect the children upon the death of their mother yet he was the sole person responsible for decisions of a long term nature. 

27. Parental responsibility is defined in s 61B as meaning all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.  As such, although the parties agreed only to equal shared parental responsibility in respect of major long term issues, parental responsibility which now devolves upon the husband by virtue of the death of the wife, means that he has all of the legal responsibilities for the children and that must include deciding where they live absent some other person with that responsibility.  It is noted that there is no intervention by the state.

28. There is no basis therefore to have the extant orders remain. These children need not only the care but also the legal protection that comes with having legal responsibility under the Family Law Act.

29. Section 65D provides the power for the court to make a parenting order.  Subject to certain restraints that are not relevant here, the court must make such parenting order as it thinks proper.  If it determines therefore that an order should be made that the children should live with a particular parent, s 60CA provides that the court must regard the best interest of the children as the paramount consideration.

30. In determining what is in the best interests of the children, the court is guided by the considerations in s 60CC.

31. Many of the considerations are no longer relevant but they do provide some assistance when looking at whether it is appropriate to hand the children to the surviving parent.  On an interim basis, these issues become less difficult because there is no other person coming forward with whom the children can stay and who has legal responsibility.  For that reason, I indicated I would make interim orders only and then the substantive issue about the longer term picture can be assessed in the future.  In the meantime, the evidence of the husband is that he communicated with the children well in difficult circumstances where they were all grieving.  There was another adult present well known to the children and no complaint appears to have been made about the husband’s conduct.  In any event, the orders to which I have referred have already indicated that the husband can manage significant time with these children.

32. There is evidence before the court that up until separation in 2015, the husband was the primary carer of these children.  The evidence supports a conclusion that the wife wanted him to be the primary carer of the children upon her demise.  Nothing would indicate in the evidence of the husband that he does not enjoy a good relationship with the children albeit it may have been strained by what they have been through.

33. Nothing would suggest that the husband has been failing to pursue the care of the children and all of the indicators would show that he has the necessary wherewithal to care for them.

34. Section 60CC(3)(f) and (i) and (j) all addressed the question of how responsible parents deal with another parent and the way in which that dealing impacts upon the children.  There were serious concerns about the father’s mental health but I am comforted by the fact that psychiatrist Dr F has indicated that, subject to medication being dealt with appropriately, there is no reason why he could not care for the children. 

35. The family violence issues seem now to have abated.  Much of that seems to have been about the separation and the breakdown of the relationship.  In addition, the attitude of the husband towards his responsibilities might have been questioned but the evidence that was required of him to indicate that he understood his responsibilities was set out in the order of November 2016 and the court was told that he had complied with all of those requirements. 

36. In my view, the court can conclude that it is in the best interests of the children that they settle with their father as quickly as possible and that any dispute involving other people can be determined at trial but these children deserve the right to have an uninterrupted pattern of care in the meantime.

37. For those reasons, I am satisfied that the orders I made on 27 July were in the best interests of the children.

38. The property issues may now become somewhat irrelevant.  Counsel for the estate indicated that the executors would take a pragmatic line but that depends very much on who those executors are.  One of the reasons why there is a current delay is that there is some uncertainty about whether Ms Parsons will be pursuing the role that she has under the mother’s will.  Even so, the court was told that the children are the beneficiaries under the will in the long run.  Orders could be made under s 79 of the Act to reflect their entitlement anyway.

39. Mr Wraith on behalf of the estate indicated that he wanted to get the issue of who was to be the executor sorted out and then make an application to the Supreme Court for a probate of the mother’s will. Thereafter, the estate could not only negotiate but nominate its position if there was some doubt as to indicate how the property should be divided.  In that sense, the matter is a relatively simple case probably bordering on an assessment by the court and should not take very long to finalise.  On that basis, I made orders for particularised applications to be completed as soon as possible so that those negotiations can commence in earnest.

I certify that the preceding Thirty Nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 28 July 2017.

Associate:

Date:  28 July 2017