Re: Valentine

[2014] FamCA 1006

FAMILY COURT OF AUSTRALIA

RE: VALENTINE [2014] FamCA 1006

FAMILY LAW – CHILDREN – Application for parenting orders by child’s relative (step-mother) – Both of child’s biological parents deceased – Notice of application given to other known relatives – No contradictor to application – Whether parenting orders sought in child’s best interests – Expert evidence supporting the making of orders.

Family Law Act 1975 (Cth)

APPLICANT:	Ms Valentine
FILE NUMBER:	BRC	4177	of		2014

DATE DELIVERED: 12 November 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: On the papers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Reaburn Solicitors

Orders

1. The Applicant have sole parental responsibility for the child, X, born on … 1999.

2. The child live with the Applicant.

3. Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Re: Valentine has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4177 of 2014

Ms Valentine

Applicant

REASONS FOR JUDGMENT

1. By an Initiating Application filed on 13 May 2014 Ms Valentine applies for final parenting orders under Part VII of the Family Law Act 1975 (Cth) (“the Act”) with respect to the child X, born in 1999, who is now 15 years of age. Ms Valentine seeks an order for sole parental responsibility and an order for X to live with her.

2. Ms Valentine is the child’s step-parent and “relative of a child” as regards the child for the purposes of Part VII of the Act within the definition in s 4 of the Act. Ms Valentine has, in the circumstances outlined below, standing to apply for a parenting order with respect to X as she is a “person concerned with the care, welfare or development of the child” within the meaning of s 65C of the Act.

3. In the tragic circumstances of this case both of X’s biological parents are now deceased.  No other relative of X on either the maternal or paternal sides of his family, to whom notice of this application has been given, has sought to be heard in opposition to the application and there is thus no contradictor or other party to the proceedings.

Relevant background

1. The child X’s father, Mr V (now deceased) (“the father”) and Ms Valentine lived together in a de facto relationship for approximately nine (9) years, from 2004, prior to their marriage in 2013.  A child of their marriage, B, was born in early 2007.  Their marriage was subsisting at the time of the father’s tragic death from cancer in mid-2013.

2. From the commencement of her de facto relationship with the father in 2004, Ms Valentine became a person concerned with the care, welfare and development of the child X.  Between 2004 and 2007 X was a regular member of the father and Ms Valentine’s household, typically on each alternate weekend and for block periods during each school holidays.  Between 2007 and 2011, X lived full-time in the household.  As already noted, the child’s half-sibling B, Ms Valentine’s son, was born in 2007.  From 2011, the child spent five or six nights per fortnight in Ms Valentine and the father’s household and otherwise had telephone communication on alternate days.

3. When, sadly, the father passed away in 2013 Ms Valentine discussed arrangements for B and X to spend time together with X’s biological mother, Ms L (now deceased) (“the mother”).  As a result of these discussions X initially spent three nights per fortnight with Ms Valentine and B and in 2013 also spent half of each of the September and Christmas school holiday periods with them.

4. As executor of the father’s estate, and in accordance with bequests made in the father’s Will, Ms Valentine has caused capital provisions to be set aside and applied for X’s benefit.  In addition, Ms Valentine has maintained private health insurance for X and has provided him with regular pocket money.

5. In February 2014 Ms Valentine sought and obtained the mother’s consent for X to commence consulting a psychologist, Ms T, to assist X in managing his grief following his father’s death.

6. I accept Ms Valentine’s evidence that for as long as she can remember, X has confided in her in respect of his emotional needs.  It is to be noted that between April 2007 and 2011 when X lived full-time as part of Ms Valentine’s household, his mother spent time in gaol for criminal offences; was hospitalised as a consequence of a suicide attempt; and had two of her other children placed in foster care.  It can readily be inferred that such events would have been challenging for X and would be consistent with the mother lacking the parental capacity to provide, in affected periods, for X’s physical, intellectual and emotional needs.  The corollary is that Ms Valentine has played a significant role in X’s life in these respects and for a long period of time.

7. Tragically for X, within 12 months of his father’s passing his mother, Ms L, committed suicide in 2014.  X has lived permanently with Ms Valentine (and B) since then.

Determination of X’s best interests

1. Based upon Ms Valentine’s evidence, which I accept, I make the following findings:

   a)as half-brothers X and B have a very close relationship with one another.  It is patently in X’s best interests that this relationship be promoted by continuation of their current circumstances of living together in the same household;

   b)for a long time now, and since X was very young, Ms Valentine has loved X as if he were her own biological child.  Reflecting that, Ms Valentine has cared for X and provided for his physical, intellectual and emotional needs as if he were her own child and Ms Valentine seeks to continue to perform that role.  It is patently in X’s best interests that his relationship with Ms Valentine be maximised, as the orders sought by Ms Valentine will achieve, and that X continues to have the experience of Ms Valentine’s love, care and support;

   c)X has told Ms Valentine of his own view that he wishes to continue living with her.  I accept that such statement reflects X’s genuine view and he is of an age and level of maturity that significant, even determinative, weight ought be given to his views.  I also accept that X has told Ms Valentine that when the mother was alive it was the mother’s expressed wish that X should live with Ms Valentine should anything happen to her.  X would thus see the continuation of his current circumstances as reflecting his own mother’s views;

   d)Ms Valentine has the financial capacity to support X; has demonstrated historically that she exercises that capacity in his interest; and it is clearly in X’s best interests that he continue to receive such support;

   e)X has never had any relationship of significance with any of his relatives on the maternal side of his family as it would seem that the mother isolated herself, and consequently her children, including X, from them;

   f)Ms Valentine intends to facilitate X’s ongoing relationship with his relatives consistent with his best interests;

   g)all of X’s relatives on both the maternal and paternal sides of his family have been given notice of this application.  Each of those relatives, bar two of them, have expressed their support of the application and in respect of those two who have not responded neither have sought to be heard in response or opposition to the orders sought by Ms Valentine.

2. X’s treating psychologist, Ms T, has provided a report.  I accept her expertise for the opinions contained in her report which I accept.  Ms T opines, and I accept, that:

   a)Ms Valentine has historically acted very protectively toward X given the background of his own mother’s mental health issues;

   b)Ms Valentine has X’s best interests at heart and has cared for X and been a key figure in his life for many years and treats X “like her own son”;

   c)the bond between X and Ms Valentine is “impressive” and X is very connected to Ms Valentine and values her opinion and judgment;

   d)X is very happy to live with Ms Valentine and his half-brother B with whom X has a strong connection;

   e)Ms Valentine is aware of the many implications in taking responsibility for X and was already supplementing his care significantly after the death of the father;

   f)financially Ms Valentine appears to be in a stable position to care for X.

3. The Court is also assisted by an expert report prepared by Family Consultant Mr P dated 21 August 2014.  For the purpose of his report Mr P interviewed X and Ms Valentine.

4. Mr P records in his report that the primary focus of his assessment and report was on obtaining X’s views and wishes regarding his future living arrangements.

5. Mr P assessed X to be of average intelligence with good receptive and expressive language skills.  Mr P assessed X as a mature, sensible young person. 

6. Asked what it is he does want, X told Mr P, “To stay with [Ms Valentine].  It’s the best thing for me.  I’m comfortable there.”

7. Mr P assessed that X’s maturity and insight was revealed in his responses to a number of questions Mr P posed to him.  Mr P assessed that X identifies Ms Valentine and B as his closest family members and perceives his half-siblings in a positive way.  X also reported a “fairly close” relationship with his paternal grandparents and was feeling “okay” about the current level of contact he was having with his paternal aunts and uncles.  Mr P assessed X’s responses as indicating that his primary sense of home and family is with Ms Valentine.

8. Mr P assessed X to strongly identify with Ms Valentine and B linked to his past experiences of spending time in that household, as earlier referred to.  Mr P assessed X to have a strong bond with his half-brother B and is having positive memories and experiences of Ms Valentine which Mr P assessed as probably very reassuring for X given his losses.

9. Ms Valentine impressed Mr P as a mature, sensible-minded person; and as a strong, sensitive and caring person with very good insight into X’s needs and experiences.

10. At [17] of his report Mr P observed:

    17.… [X] is currently at a highly vulnerable point in his life.  Amongst all the terrible sadness for [X], there is an aspect or element of his life that, I believe, is likely to significantly ameliorate or mitigate the effect of his awful loss.  I am referring to [X’s] stepmother, [Ms Valentine] and the environment at her home.

11. Mr P opines that X identifies Ms Valentine as a significant source of security and care and that X identifies positively with the environment that Ms Valentine provides.  Mr P assessed X to have a strong sense of belonging and connection with that household and that X perceives B as a significant person in his life.

12. Mr P assessed X to be continuing to grieve the loss of both of his parents and that his capacity to deal with this is likely to be aided “if his existence and sense of self is kept as stable as possible and if he can maintain a sense of security of belongingness.  In my opinion, these needs are most likely to be satisfied if [X] lives with Ms [Valentine].”

13. Mr P recommended that X continue to live with Ms Valentine. 

14. I accept Mr P’s expertise to express the opinions he has expressed and, in turn, I accept those opinions as the well-reasoned and thoughtful opinions of a qualified expert.

15. The affidavits filed in support of the application set out the steps taken to bring this application to the notice of X’s relatives on both the maternal and paternal sides of his family.  I have earlier referred to the fact that those relatives either have expressed their support of the application or, in the case of two of them, whilst not directly responding, have not sought to be heard in opposition to the application despite having notice of it and thus the opportunity to so do. 

16. I am satisfied that the orders sought by Ms Valentine are in X’s best interests within the meaning of s 60CC of the Act. I am satisfied that it would be in X’s best interests for the parenting orders sought by Ms Valentine to be made and I make those orders.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 12 November 2014.

Associate: 

Date:  12 November 2014