Re Nessun

[2008] FamCA 741

FAMILY COURT OF AUSTRALIA

RE NESSUN [2008] FamCA 741

FAMILY LAW  -  CHILDREN - parental responsibility for intellectually disabled orphan

Family Law Act 1975 (Cth)

APPLICANT: Ms Nessun

FILE NUMBER: MLC 7180 of 2008

DATE DELIVERED: 13 August 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 13 August, 2008

REPRESENTATION

THE APPLICANT: In person

Orders

1. That the applicant Ms Nessun have sole parental responsibility for the long term care, welfare and development of the child … born … January, 1996. 

2. That Ms Nessun be permitted to apply for a birth certificate for the child and IT IS REQUESTED that the Registry of Births, Deaths and Marriages give effect to this order. 

3. That as soon as practicable the applicant serve a copy of this order on the Department of Human Services.

4. That the application filed 7 August, 2008 be otherwise dismissed.

5. That the reasons for judgment this day be transcribed and copies be made available to the applicant and the Department of Human Services.

6. That the preparation of these orders be expedited forthwith.

7. That these applications be removed from the List of matters awaiting finalisation.

IT IS NOTED  that publication of this judgment under the pseudonym  Nessun is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7180 of 2008

MS NESSUN

Applicant

REASONS FOR JUDGMENT

1. Before the court is an application filed by Ms Nessun on 7 August 2008.  It is supported by an affidavit sworn by Ms Nessun on 7 August 2008.  This morning I have taken some additional evidence from the applicant.  Evidence has also been given by Ms C, a disability case manager with the Department of Human Services, who is presently involved with the child who is the subject of the proceedings, a boy born in January 1996.

2. The child’s mother was Ms S.  She died in September 2007.  Her death certificate notes carcinoma as the cause of death.  The child’s father was Mr S.  He died in May 2008.  A form letter from the Coroner’s Office notes that an investigation is in progress.  Nothing suggests that is not a routine inquiry.  The cause of death was, probably, pneumonia. 

3. The child is 12.  He has a severe intellectual disability and was diagnosed some time ago with autism.  He is in the care of the Department of Human Services.  Ms Nessun is the child’s second cousin;  she is the niece of his father, Mr S.  She has been liasing with the Department of Human Services for some time and, at its request, seeks an order that she have sole parental responsibility for the child.  The child will not be residing with her.  He will remain in the care of the Department of Human Services. 

4. Ms. Nessun has two children of her own.  No-one else in the extended family is in a position to take on formal responsibility for the child.  For many of his parents’ surviving relatives, English is a second language.  While that, of course, is no bar to the exercise of parental responsibility, it can make it difficult to communicate easily and swiftly with those providing the child’s care, and the problem is exacerbated by his special needs.  The child is very fortunate that Ms. Nessun is prepared to assume parental responsibility for him. 

5. The estates of the child’s parents will be managed by the State Trustees. 

6. The evidence satisfies me that orders should be made today in the terms proposed, such orders being in the child’s best interests. 

I certify that the preceding
6 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2008.

…………………………………………
Associate.